JUSTICE
§ 1. We have seen that in delineating the outline of duty, as
intuitively recognised, we have to attempt to give to common terms
a definite and precise meaning. This process of definition always
requires some reflection and care, and is sometimes one of considerable
difficulty. But there is no case where the difficulty is greater, or
the result more disputed, than when we try to define Justice.
Before making the attempt, it may be as well to remind the reader what
it is that we have to do. We have not to inquire into the derivation
of the notion of Justice, as we are not now studying the history of
our ethical thought, but its actual condition. Nor can we profess to
furnish a definition which will correspond to every part of the common
usage of the term; for many persons are undoubtedly vague and loose in
their application of current moral notions. But it is an assumption of
the Intuitional method[204] that the term ‘justice’ denotes a quality
which it is ultimately desirable to realise in the conduct and social
relations of men; and that a definition may be given of this which
will be accepted by all competent judges as presenting, in a clear
and explicit form, what they have always meant by the term, though
perhaps implicitly and vaguely. In seeking such a definition we may, so
to speak, clip the ragged edge of common usage, but we must not make
excision of any considerable portion.[205]
Perhaps the first point that strikes us when we reflect upon our
notion of Justice is its connexion with Law. There is no doubt that
just conduct is to a great extent determined by Law, and in certain
applications the two terms seem interchangeable. Thus we speak
indifferently of ‘Law Courts’ and ‘Courts of Justice,’ and when a
private citizen demands Justice, or his just rights, he commonly means
to demand that Law should be carried into effect. Still reflection
shows that we do not mean by Justice merely conformity to Law. For,
first, we do not always call the violators of law unjust, but only of
some Laws: not, for example, duellists or gamblers. And secondly, we
often judge that Law as it exists does not completely realise Justice;
our notion of Justice furnishes a standard with which we compare actual
laws, and pronounce them just or unjust. And, thirdly, there is a part
of just conduct which lies outside the sphere even of Law as it ought
to be; for example, we think that a father may be just or unjust to his
children in matters where the law leaves (and ought to leave) him free.
We must then distinguish Justice from what has been called the virtue
or duty of Order, or Law-observance: and perhaps, if we examine the
points of divergence just mentioned, we shall be led to the true
definition of Justice.
Let us therefore first ask, Of what kind of laws is the observance
generally thought to be a realisation of Justice? In most cases they
might be described as laws which define and secure the interests of
assignable individuals. But this description is not complete, as
Justice is admittedly concerned in the apportionment of adequate
punishment to each offender; though we should not say that a man had
an interest in the adequacy of his punishment. Let us say, then,
that the laws in which Justice is or ought to be realised, are laws
which distribute and allot to individuals either objects of desire,
liberties and privileges, or burdens and restraints, or even pains
as such. These latter, however, are only allotted by law to persons
who have broken other laws. And as all law is enforced by penalties,
we see how the administration of law generally may be viewed as
the administration of Justice, in accordance with this definition:
not because all laws are primarily and in their first intention
distributive, but because the execution of law generally involves
the due allotment of pains and losses and restraints to the persons
who violate it. Or, more precisely, we should say that this legal
distribution _ought_ to realise Justice, for we have seen that it
may fail to do so. We have next to ask, therefore, What conditions
must laws fulfil in order that they may be just in their distributive
effects?
Here, however, it may seem that we are transgressing the limit which
divides Ethics from Politics: for Ethics is primarily concerned with
the rules which ought to govern the private conduct of individuals;
and it is commonly thought that private persons ought to obey even
laws that they regard as unjust, if established by lawful authority.
Still, this is doubted in the case of laws that seem extremely unjust:
as (_e.g._) the Fugitive Slave law in the United States before the
rebellion. At any rate it seems desirable that we should here digress
somewhat into political discussion; partly in order to elucidate
the notion of Justice, which seems to be essentially the same in
both regions, and partly because it is of great practical importance
to individuals, in regulating private conduct beyond the range of
Law-observance, to know whether the laws and established order of the
society in which they live are just or unjust.
Now perhaps the most obvious and commonly recognised characteristic
of just laws is that they are Equal: and in some departments of
legislation, at least, the common notion of Justice seems to be
exhaustively expressed by that of Equality. It is commonly thought,
for example, that a system of taxation would be perfectly just if it
imposed exactly equal burdens upon all:[206] and though this notion
of ‘equal burden’ is itself somewhat difficult to define with the
precision required for practical application, still we may say that
Justice here is thought to resolve itself into a kind of equality.
However, we cannot affirm generally that all laws ought to affect all
persons equally, for this would leave no place for any laws allotting
special privileges and burdens to special classes of the community;
but we do not think all such laws necessarily unjust: _e.g._ we think
it not unjust that only persons appointed in a certain way should
share in legislation, and that men should be forced to fight for their
country but not women. Hence some have said that the only sense in
which justice requires a law to be equal is that its execution must
affect equally all the individuals belonging to any of the classes
specified in the law. And no doubt this rule excludes a very real
kind of injustice: it is of the highest importance that judges and
administrators should never be persuaded by money or otherwise to
show ‘respect of persons.’ So much equality, however, is involved
in the very notion of a law, if it be couched in general terms:
and it is plain that laws may be equally executed and yet unjust:
for example, we should consider a law unjust which compelled only
red-haired men to serve in the army, even though it were applied with
the strictest impartiality to all red-haired men. We must therefore
conclude, that, in laying down the law no less than in carrying it
out, all inequality[207] affecting the interests of individuals which
appears arbitrary, and for which no sufficient reason can be given,
is held to be unjust. But we have still to ask, what kind of reasons
for inequality Justice admits and from what general principle (or
principles) all such reasons are to be deduced?
§ 2. Perhaps we shall find it easier to answer this question, if we
examine the notion of Justice as applied to that part of private
conduct which lies beyond the sphere of law. Here, again, we may
observe that the notion of Justice always involves allotment of
something considered as advantageous or disadvantageous: whether it be
money or other material means of happiness; or praise, or affection,
or other immaterial good, or some merited pain or loss. Hence I should
answer the question raised in the preceding chapter (§ 3), as to
the classification of the duties there discussed under the heads of
Justice and Benevolence respectively, by saying that the fulfilment of
any duty of the affections, considered by itself, does not exemplify
Justice: but that when we come to compare the obligations arising
out of different affectionate relations, and to consider the right
allotment of love and kind services, the notion of Justice becomes
applicable. In order to arrange this allotment properly we have to
inquire what is Just. What then do we mean by a just man in matters
where law-observance does not enter? It is natural to reply that we
mean an impartial man, one who seeks with equal care to satisfy all
claims which he recognises as valid and does not let himself be unduly
influenced by personal preferences. And this seems an adequate account
of the virtue of justice so far as we consider it merely subjectively,
and independently of the intellectual insight required for the
realisation of objective justice in action: if we neglect to give due
consideration to any claim which we regard as reasonable, our action
cannot be just in intention. This definition suffices to exclude wilful
injustice: but it is obvious that it does not give us a sufficient
criterion of just acts, any more than the absence of arbitrary
inequality was found to be a sufficient criterion of just laws.[208] We
want to know what are reasonable claims.
Well, of these the most important--apart from the claims discussed in
the preceding chapter--seems to be that resulting from contract. This
is to a certain extent enforced by law: but it is clear to us that a
just man will keep engagements generally, even when there may be no
legal penalty attached to their violation. The exact definition of this
duty, and its commonly admitted qualifications, will be discussed in
the next chapter: but of its general bindingness Common Sense has no
doubt.
Further, we include under the idea of binding engagements not merely
verbal promises, but also what are called ‘implied contracts’ or
‘tacit understandings.’ But this latter term is a difficult one to
keep precise: and, in fact, is often used to include not only the case
where _A_ has in some way positively implied a pledge to _B_, but also
the case where _B_ has certain expectations of which _A_ is aware.
Here, however, the obligation is not so clear: for it would hardly be
said that a man is bound to dispel all erroneous expectations that he
may know to be formed respecting his conduct, at the risk of being
required to fulfil them. Still, if the expectation was such as most
persons would form under the circumstances, there seems to be some sort
of moral obligation to fulfil it, if it does not conflict with other
duties, though the obligation seems less definite and stringent than
that arising out of contract. Indeed I think we may say that Justice is
generally, though somewhat vaguely, held to prescribe the fulfilment
of all such expectations (of services, etc.) as arise naturally and
normally out of the relations, voluntary or involuntary, in which we
stand towards other human beings. But the discussions in the preceding
chapter have shown the difficulty of defining even those duties of this
kind which, in an indefinite form, seemed certain and indisputable:
while others are only defined by customs which to reflection appear
arbitrary. And though while these customs persist, the expectations
springing from them are in a certain sense natural, so that a just man
seems to be under a kind of obligation to fulfil them, this obligation
cannot be regarded as clear or complete, for two reasons that were
given in the last chapter; first, because customs are continually
varying, and as long as any one is in a state of variation, growing or
decaying, the validity of the customary claim is obviously doubtful;
and secondly, because it does not seem right that an irrational and
inexpedient custom should last for ever, and yet it can only be
abolished by being “more honoured in the breach than in the observance.”
This line of reflection therefore has landed us in a real perplexity
respecting the department of duty which we are at present examining.
Justice is something that we conceive to be intrinsically capable of
perfectly definite determination: a scrupulously just man, we think,
must be very exact and precise in his conduct. But when we consider
that part of Justice which consists in satisfying such natural
and customary claims as arise independently of contract, it seems
impossible to estimate these claims with any exactness. The attempt to
map out the region of Justice reveals to us a sort of margin or dim
borderland, tenanted by expectations which are not quite claims and
with regard to which we do not feel sure whether Justice does or does
not require us to satisfy them. For the ordinary actions of men proceed
on the expectation that the future will resemble the past: hence it
seems natural to expect that any particular man will do as others do
in similar circumstances, and, still more, that he will continue to do
whatever he has hitherto been in the habit of doing; accordingly his
fellow-men are inclined to think themselves wronged by his suddenly
omitting any customary or habitual act, if the omission causes them
loss or inconvenience.[209] On the other hand, if a man has given no
pledge to maintain a custom or habit, it seems hard that he should be
bound by the unwarranted expectations of others. In this perplexity,
common sense often appears to decide differently cases similar in
all respects, except in the quantity of disappointment caused by the
change. For instance, if a poor man were to leave one tradesman and
deal with another because the first had turned Quaker, we should hardly
call it an act of injustice, however unreasonable we might think it:
but if a rich country gentleman were to act similarly towards a poor
neighbour, many persons would say that it was unjust persecution.
The difficulty just pointed out extends equally to the duties of
kindness--even to the specially stringent and sacred duties of the
domestic affections and gratitude--discussed in the previous chapter.
We cannot get any new principle for settling any conflict that may
present itself among such duties, by asking ‘what Justice requires of
us’: the application of the notion of Justice only leads us to view
the problem in a new aspect as a question of the right _distribution_
of kind services--it does not help us to solve it. Had we clear and
precise intuitive principles for determining the claims (_e.g._) of
parents on children, children on parents, benefactors on the recipients
of their benefits, we might say exactly at what point or to what
extent the satisfaction of one of these claims ought in justice to
be postponed to the satisfaction of another, or to any worthy aim of
a different kind: but I know no method of determining a problem of
this kind which is not either implicitly utilitarian, or arbitrarily
dogmatic, and unsupported by Common Sense.
§ 3. If now we turn again to the political question, from which we
diverged, we see that we have obtained from the preceding discussion
one of the criteria of the justice of laws which we were seeking--viz.
that they must avoid running counter to natural and normal
expectations--: but we see at the same time that the criterion cannot
be made definite in its application to private conduct, and it is easy
to show that there is the same indefiniteness and consequent difficulty
in applying it to legislation. For Law itself is a main source of
natural expectations; and, since in ordinary times the alterations in
law are very small in proportion to the amount unaltered, there is
always a natural expectation that the existing laws will be maintained:
and although this is, of course, an indefinite and uncertain
expectation in a society like ours, where laws are continually being
altered by lawful authority, it is sufficient for people in general to
rely upon in arranging their concerns, investing their money, choosing
their place of abode, their trade and profession, etc. Hence when such
expectations are disappointed by a change in the law, the disappointed
persons complain of injustice, and it is to some extent admitted that
justice requires that they should be compensated for the loss thus
incurred. But such expectations are of all degrees of definiteness and
importance, and generally extend more widely as they decrease in value,
like the ripples made by throwing a stone into a pond, so that it is
practically impossible to compensate them all: at the same time, I
know no intuitive principle by which we could separate valid claims
from invalid, and distinguish injustice from simple hardship.[210]
But even if this difficulty were overcome further reflection must, I
think, show that the criterion above given is incomplete or imperfectly
stated: otherwise it would appear that no old law could be unjust,
since laws that have existed for a long time must create corresponding
expectations. But this is contrary to Common Sense: as we are
continually becoming convinced that old laws are unjust (_e.g._ laws
establishing slavery): indeed, this continually recurring conviction
seems to be one of the great sources of change in the laws of a
progressive society.
Perhaps we may say that there are natural expectations which grow up
from other elements of the social order, independent of and so possibly
conflicting with laws: and that we call rules unjust which go counter
to these. Thus _e.g._ primogeniture appears to many unjust, because
all the landowner’s children are brought up in equally luxurious
habits, and share equally the paternal care and expenditure, and so
the inequality of inheritance seems paradoxical and harsh. Still, we
cannot explain every case in this way: for example, the conviction that
slavery is unjust can hardly be traced to anything in the established
order of the slave-holding society, but seems to arise in a different
way.
The truth is, this notion of ‘natural expectations’ is worse than
indefinite: the ambiguity of the term conceals a fundamental conflict
of ideas, which appears more profound and far-reaching in its
consequences the more we examine it. For the word ‘natural,’ as used
in this connexion, covers and conceals the whole chasm between the
actual and the ideal--what is and what ought to be. As we before
noticed,[211] the term seems, as ordinarily used, to contain the
distinct ideas of (1) the common as opposed to the exceptional, and
(2) the original or primitive as contrasted with the result of later
conventions and institutions. But it is also used to signify, in more
or less indefinite combination with one or other of these meanings,
‘what would exist in an ideal state of society.’ And it is easy to
see how these different meanings have been blended and confounded.
For since by ‘Nature’ men have really meant God, or God viewed in a
particular aspect--God, we may say, as known to us in experience--when
they have come to conceive a better state of things than that which
actually exists, they have not only regarded this ideal state as
really exhibiting the Divine purposes more than the actual, and as
being so far more ‘natural’: but they have gone further, and supposed
more or less definitely that this ideal state of things must be what
God originally created, and that the defects recognisable in what
now exists must be due to the deteriorating action of men. But if we
dismiss this latter view, as unsupported by historical evidence, we
recognise more plainly the contrast and conflict between the other two
meanings of ‘natural,’ and the corresponding discrepancy between the
two elements of the common notion of Justice. For, from one point of
view, we are disposed to think that the _customary_ distribution of
rights, goods, and privileges, as well as burdens and pains, is natural
and just, and that this ought to be maintained by law, as it usually
is: while, from another point of view, we seem to recognise an ideal
system of rules of distribution which ought to exist, but perhaps have
never yet existed, and we consider laws to be just in proportion as
they conform to this ideal. It is the reconciliation between these two
views which is the chief problem of political Justice.[212]
On what principles, then, is the ideal to be determined? This is, in
fact, the question which has been chiefly in view from the outset of
the chapter; but we could not satisfactorily discuss it until we had
distinguished the two elements of Justice, as commonly conceived--one
conservative of law and custom, and the other tending to reform them.
It is on this latter that we shall now concentrate our attention.
When, however, we examine this ideal, as it seems to show itself in
the minds of different men in different ages and countries, we observe
various forms of it, which it is important to distinguish.
In the first place, it must be noticed that an ideal constitution
of society may be conceived and sought with many other ends in view
besides the right distribution of good and evil among the individuals
that compose it: as (_e.g._) with a view to conquest and success in
war, or to the development of industry and commerce, or to the highest
possible cultivation of the arts and sciences. But any such political
ideal as this is beyond the range of our present consideration, as it
is not constructed on the basis of our common notion of Justice. Our
present question is, Are there any clear principles from which we may
work out an ideally just distribution of rights and privileges, burdens
and pains, among human beings as such? There is a wide-spread view,
that in order to make society just certain Natural Rights should be
conceded to all members of the community, and that positive law should
at least embody and protect these, whatever other regulations it may
contain: but it is difficult to find in Common Sense any definite
agreement in the enumeration of these Natural Rights, still less any
clear principles from which they can be systematically deduced.
§ 4. There is, however, one mode of systematising these Rights
and bringing them under one principle, which has been maintained
by influential thinkers; and which, though now perhaps somewhat
antiquated, is still sufficiently current to deserve careful
examination. It has been held that Freedom from interference is
really the whole of what human beings, originally and apart from
contracts, can be strictly said to _owe_ to each other: at any rate,
that the protection of this Freedom (including the enforcement of
Free Contract) is the sole proper aim of Law, _i.e._ of those rules
of mutual behaviour which are maintained by penalties inflicted
under the authority of Government. All natural Rights, on this view,
may be summed up in the Right to Freedom; so that the complete and
universal establishment of this Right would be the complete realisation
of Justice,--the Equality at which Justice is thought to aim being
interpreted as Equality of Freedom.
Now when I contemplate this as an abstract formula, though I cannot say
that it is self-evident to me as the true fundamental principle of
Ideal Law, I admit that it commends itself much to my mind; and I might
perhaps persuade myself that it is owing to the defect of my faculty
of moral (or jural) intuition that I fail to see its self-evidence.
But when I endeavour to bring it into closer relation to the actual
circumstances of human society, it soon comes to wear a different
aspect.
In the first place, it seems obviously needful to limit the extent of
its application. For it involves the negative principle that no one
should be coerced for his own good alone; but no one would gravely
argue that this ought to be applied to the case of children, or of
idiots, or insane persons. But if so, can we know _a priori_ that it
ought to be applied to all sane adults? since the above-mentioned
exceptions are commonly justified on the ground that children, etc.,
will manifestly be better off if they are forced to do and abstain
as others think best for them; and it is, at least, not intuitively
certain that the same argument does not apply to the majority of
mankind in the present state of their intellectual progress. Indeed,
it is often conceded by the advocates of this principle that it does
not hold even in respect of adults in a low state of civilisation. But
if so, what criterion can be given for its application, except that it
must be applied wherever human beings are sufficiently intelligent to
provide for themselves better than others would provide for them? and
thus the principle would present itself not as absolute, but merely a
subordinate application of the wider principle of aiming at the general
happiness or well-being of mankind.
But, again, the term Freedom is ambiguous. If we interpret it strictly,
as meaning Freedom of Action alone, the principle seems to allow any
amount of mutual annoyance except constraint. But obviously no one
would be satisfied with such Freedom as this. If, however, we include
in the idea absence of pain and annoyance inflicted by others, it
becomes at once evident that we cannot prohibit all such annoyances
without restraining freedom of action to a degree that would be
intolerable; since there is scarcely any gratification of a man’s
natural impulses which may not cause some annoyance to others. Hence
in distinguishing the mutual annoyances that ought to be allowed from
those that must be prohibited we seem forced to balance the evils of
constraint against pain and loss of a different kind: while if we admit
the Utilitarian criterion so far, it is difficult to maintain that
annoyance to individuals is never to be permitted in order to attain
any positive good result, but only to prevent more serious annoyance.
Thirdly, in order to render a social construction possible on this
basis, we must assume that the right to Freedom includes the right
to limit one’s freedom by contract; and that such contracts, if they
are really voluntary and not obtained by fraud or force, and if they
do not violate the freedom of others, are to be enforced by legal
penalties. But I cannot see that enforcement of Contracts is strictly
included in the notion of realising Freedom; for a man seems to be most
completely free when no one of his volitions is allowed to have any
effect in causing the _external_ coercion of any other. If, again, this
right of limiting Freedom is itself unlimited, a man might thus freely
contract himself out of freedom into slavery, so that the principle
of freedom would turn out suicidal; and yet to deduce from this
principle a limited right of limiting freedom by contract seems clearly
impossible.[213]
But if it be difficult to define freedom as an ideal to be realised
in the merely personal relations of human beings, the difficulty is
increased when we consider the relation of men to the material means of
life and happiness.
For it is commonly thought that the individual’s right to Freedom
includes the right of appropriating material things. But, if Freedom
be understood strictly, I do not see that it implies more than his
right to non-interference while actually using such things as can
only be used by one person at once: the right to prevent others from
using at any future time anything that an individual has once seized
seems an interference with the free action of others beyond what is
needed to secure the freedom, strictly speaking, of the appropriator.
It may perhaps be said that a man, in appropriating a particular
thing, does not interfere with the freedom of others, because the
rest of the world is still open to them. But others may want just
what he has appropriated: and they may not be able to find anything
so good at all, or at least without much labour and search; for many
of the instruments and materials of comfortable living are limited in
quantity. This argument applies especially to property in land: and it
is to be observed that, in this case, there is a further difficulty
in determining how much a man is to be allowed to appropriate by
‘first occupation.’ If it be said that a man is to be understood to
occupy what he is able to use, the answer is obvious that the use of
land by any individual may vary almost indefinitely in extent, while
diminishing proportionally in intensity. For instance, it would surely
be a paradoxical deduction from the principle of Freedom to maintain
that an individual had a right to exclude others from pasturing sheep
on any part of the land over which his hunting expeditions could
extend.[214] But if so can it be clear that a shepherd has such a right
against one who wishes to till the land, or that one who is using the
surface has a right to exclude a would-be miner? I do not see how
the deduction is to be made out. Again, it may be disputed whether
the right of Property, as thus derived, is to include the right of
controlling the disposal of one’s possessions after death. For this
to most persons seems naturally bound up with ownership: yet it is
paradoxical to say that we interfere with a man’s freedom of action by
anything that we may do after his death to what he owned during his
life: and jurists have often treated this right as purely conventional
and not therefore included in ‘natural law.’
Other difficulties might be raised: but we need not pursue them,
for if Freedom be taken simply to mean that one man’s actions are
to be as little as possible restrained by others, it is obviously
more fully realised without appropriation. And if it be said that it
includes, beside this, facility and security in the gratification of
desires, and that it is Freedom in this sense that we think should
be equally distributed, and that this cannot be realised without
appropriation; then it may be replied, that in a society where nearly
all material things are already appropriated, this kind of Freedom
is not and cannot be equally distributed. A man born into such a
society, without inheritance, is not only far less free than those
who possess property, but he is less free than if there had been no
appropriation. It may be said[215] that, having freedom of contract,
he will give his services in exchange for the means of satisfying his
wants; and that this exchange must necessarily give him more than he
could have got if he had been placed in the world by himself; that, in
fact, any human society always renders the part of the earth that it
inhabits more capable of affording gratification of desires to each
and all of its later-born members than it would otherwise be. But
however true this may be as a general rule, it is obviously not so
in all cases: as men are sometimes unable to sell their services at
all, and often can only obtain in exchange for them an insufficient
subsistence. And, even granting it to be true, it does not prove that
society, by appropriation, has not interfered with the natural freedom
of its poorer members: but only that it compensates them for such
interference, and that the compensation is adequate: and it must be
evident that if compensation in the form of material commodities can be
justly given for an encroachment on Freedom, the realisation of Freedom
cannot be the one ultimate end of distributive Justice.
§ 5. It seems, then, that though Freedom is an object of keen and
general desire, and an important source of happiness, both in itself
and indirectly from the satisfaction of natural impulses which it
allows, the attempt to make it the fundamental notion of theoretical
Jurisprudence is attended with insuperable difficulties: and that even
the Natural Rights which it claims to cover cannot be brought under
it except in a very forced and arbitrary manner.[216] But further,
even if this were otherwise, an equal distribution of Freedom does not
seem to exhaust our notion of Justice. Ideal Justice, as we commonly
conceive it, seems to demand that not only Freedom but all other
benefits and burdens should be distributed, if not equally, at any
rate justly,--Justice in distribution being regarded as not identical
with Equality, but merely exclusive of arbitrary inequality.
How, then, shall we find the principle of this highest and most
comprehensive ideal?
We shall be led to it, I think, by referring again to one of the
grounds of obligation to render services, which was noticed in the
last chapter: the claim of Gratitude. It there appeared that we have
not only a natural impulse to requite benefits, but also a conviction
that such requital is a duty, and its omission blameworthy, to some
extent at least; though we find it difficult to define the extent.
Now it seems that when we, so to say, _universalise_ this impulse and
conviction, we get the element in the common view of Justice, which we
are now trying to define. For if we take the proposition ‘that good
done to any individual ought to be requited by him,’ and leave out
the relation to the individual in either term of the proposition, we
seem to have an equally strong conviction of the truth of the more
general statement ‘that good deeds ought to be requited.’[217] And
if we take into consideration all the different kinds and degrees of
services, upon the mutual exchange of which society is based, we get
the proposition ‘that men ought to be rewarded in proportion to their
deserts.’ And this would be commonly held to be the true and simple
principle of distribution in any case where there are no claims arising
from Contract or Custom to modify its operation.
For example, it would be admitted that--if there has been no previous
arrangement--the profits of any work or enterprise should be divided
among those who have contributed to its success in proportion to the
worth of their services. And it may be observed, that some thinkers
maintain the proposition discussed in the previous section--that
Law ought to aim at securing the greatest possible Freedom for each
individual--not as absolute and axiomatic, but as derivative from
the principle that Desert ought to be requited; on the ground that
the best way of providing for the requital of Desert is to leave men
as free as possible to exert themselves for the satisfaction of their
own desires, and so to win each his own requital. And this seems to be
really the principle upon which the Right of Property is rested, when
it is justified by the proposition that ‘every one has an exclusive
right to the produce of his labour.’ For on reflection it is seen that
no labour really ‘produces’ any material thing, but only adds to its
value: and we do not think that a man can acquire a right to a material
thing belonging to another, by spending his labour on it--even if he
does so in the _bona fide_ belief that it is his own property--but
only to adequate _compensation_ for his labour; this, therefore, is
what the proposition just quoted must mean. The principle is, indeed,
sometimes stretched to explain the original right of property in
materials, as being in a sense ‘produced’ (_i.e._ found) by their
first discoverer;[218] but here again, reflection shows that Common
Sense does not grant this (as a _moral_ right) absolutely, but only
in so far as it appears to be not more than adequate compensation for
the discoverer’s trouble. For example, we should not consider that
the first finder of a large uninhabited region had a moral right to
appropriate the whole of it. Hence this justification of the right of
property refers us ultimately to the principle ‘that every man ought to
receive adequate requital for his labour.’ So, again, when we speak of
the world as justly governed by God, we seem to mean that, if we could
know the whole of human existence, we should find that happiness is
distributed among men according to their deserts. And Divine Justice is
thought to be a pattern which Human Justice is to imitate as far as the
conditions of human society allow.
This kind of Justice, as has been said, seems like Gratitude
universalised: and the same principle applied to punishment may
similarly be regarded as Resentment universalised; though the parallel
is incomplete, if we are considering the present state of our moral
conceptions. History shows us a time in which it was thought not only
as natural, but as clearly right and incumbent on a man, to requite
injuries as to repay benefits: but as moral reflection developed in
Europe this notion was repudiated, so that Plato taught that it could
never be right really to harm any one, however he may have harmed us.
And this is the accepted doctrine in Christian societies, as regards
requital by individuals of personal wrongs. But in its universalised
form the old conviction still lingers in the popular view of Criminal
Justice: it seems still to be widely held that Justice requires pain
to be inflicted on a man who has done wrong, even if no benefit result
either to him or to others from the pain. Personally, I am so far from
holding this view that I have an instinctive and strong moral aversion
to it: and I hesitate to attribute it to Common Sense, since I think
that it is gradually passing away from the moral consciousness of
educated persons in the most advanced communities: but I think it is
still perhaps the more ordinary view.
This, then, is one element of what Aristotle calls Corrective Justice,
which is embodied in criminal law. It must not be confounded with
the principle of Reparation, on which legal awards of damages are
based. We have already noticed this as a simple deduction from the
maxim of general Benevolence, which forbids us to do harm to our
fellow-creatures: for if we have harmed them, we can yet approximately
obey the maxim by giving compensation for the harm. Though here the
question arises whether we are bound to make reparation for harm that
has been quite blamelessly caused: and it is not easy to answer it
decisively.[219] On the whole, I think we should condemn a man who
did not offer some reparation for any serious injury caused by him to
another--even if quite involuntarily caused, and without negligence:
but perhaps we regard this rather as a duty of Benevolence--arising
out of the general sympathy that each ought to have for others,
intensified by this special occasion--than as a duty of strict Justice.
If, however, we limit the requirement of Reparation, under the head
of strict Justice, to cases in which the mischief repaired is due to
acts or omissions in some degree culpable, a difficulty arises from
the divergence between the moral view of culpability, and that which
social security requires. Of this I will speak presently.[220] In any
case there is now[221] no danger of confusion or collision between
the principle of Reparative and that of Retributive Justice, as the
one is manifestly concerned with the claims of the injured party, and
the other with the deserts of the wrongdoer: though in the actual
administration of Law the obligation of paying compensation for wrong
may sometimes be treated as a sufficient punishment for the wrongdoer.
When, however, we turn again to the other branch of Retributive
Justice, which is concerned with the reward of services, we
find another notion, which I will call Fitness, often blended
indistinguishably[222] with the notion of Desert, and so needing to be
carefully separated from it; and when the distinction has been made, we
see that the two are liable to come into collision. I do not feel sure
that the principle of ‘distribution according to Fitness’ is found,
strictly speaking, in the analysis of the ordinary notion of Justice:
but it certainly enters into our common conception of the ideal or
perfectly rational order of society, as regards the distribution both
of instruments and functions, and (to some extent at least) of other
sources of happiness. We certainly think it reasonable that instruments
should be given to those who can use them best, and functions allotted
to those who are most competent to perform them: but these may not
be those who have rendered most services in the past. And again, we
think it reasonable that particular material means of enjoyment should
fall to the lot of those who are susceptible of the respective kinds
of pleasure; as no one would think of allotting pictures to a blind
man, or rare wines to one who had no taste: hence we should probably
think it fitting that artists should have larger shares than mechanics
in the social distribution of wealth, though they may be by no means
more deserving. Thus the notions of Desert and Fitness appear at least
occasionally conflicting; but perhaps, as I have suggested, Fitness
should rather be regarded as a utilitarian principle of distribution,
inevitably limiting the realisation of what is abstractly just, than
as a part of the interpretation of Justice proper: and it is with the
latter that we are at present concerned. At any rate it is the Requital
of Desert that constitutes the chief element of Ideal Justice, in so
far as this imports something more than mere Equality and Impartiality.
Let us then examine more closely wherein Desert consists; and we will
begin with Good Desert or Merit, as being of the most fundamental and
permanent importance; for we may hope that crime and its punishment
will decrease and gradually disappear as the world improves, but the
right or best distribution of the means of wellbeing is an object that
we must always be striving to realise.
§ 6. And first, the question which we had to consider in defining
Gratitude again recurs: whether, namely, we are to apportion the
reward to the effort made, or to the results attained. For it may be
said that the actual utility of any service must depend much upon
favourable circumstances and fortunate accidents, not due to any desert
of the agent: or again, may be due to powers and skills which were
connate, or have been developed by favourable conditions of life, or
by good education, and why should we reward him for these? (for the
last-mentioned we ought rather to reward those who have educated
him). And certainly it is only in so far as _moral_ excellences are
exhibited in human achievements that they are commonly thought to be
such as God will reward. But by drawing this line we do not yet get
rid of the difficulty. For it may still be said that good actions are
due entirely, or to a great extent, to good dispositions and habits,
and that these are partly inherited and partly due to the care of
parents and teachers; so that in rewarding these we are rewarding the
results of natural and accidental advantages, and it is unreasonable to
distinguish these from others, such as skill and knowledge, and to say
that it is even ideally just to reward the one and not the other. Shall
we say, then, that the reward should be proportionate to the amount of
voluntary effort for a good end? But Determinists will say that even
this is ultimately the effect of causes extraneous to the man’s self.
On the Determinist view, then, it would seem to be ideally just (if
anything is so) that all men should enjoy equal amounts of happiness:
for there seems to be no justice in making _A_ happier than _B_, merely
because circumstances beyond his own control have first made him
better. But why should we not, instead of ‘all men,’ say ‘all sentient
beings’? for why should men have more happiness than any other animal?
But thus the pursuit of ideal justice seems to conduct us to such a
precipice of paradox that Common Sense is likely to abandon it. At any
rate the ordinary idea of Desert has thus altogether vanished.[223] And
thus we seem to be led to the conclusion which I anticipated in Book i.
chap. v.: that in this one department of our moral consciousness the
idea of Free Will seems involved in a peculiar way in the moral ideas
of Common Sense, since if it is eliminated the important notions of
Desert or Merit and Justice require material modification.[224] At the
same time, the difference between Determinist and Libertarian Justice
can hardly have any practical effect. For in any case it does not seem
possible to separate in practice that part of a man’s achievement which
is due strictly to his free choice from that part which is due to the
original gift of nature and to favouring circumstances:[225] so that
we must necessarily leave to providence the realisation of what we
conceive as the theoretical ideal of Justice, and content ourselves
with trying to reward voluntary actions in proportion to the worth of
the services intentionally rendered by them.
If, then, we take as the principle of ideal justice, so far as this can
be practically aimed at in human society, the requital of voluntary
services in proportion to their worth, it remains to consider on what
principle or principles the comparative worth of different services is
to be rationally estimated. There is no doubt that we commonly assume
such an estimate to be possible; for we continually speak of the ‘fair’
or ‘proper’ price of any kind of services as something generally known,
and condemn the demand for more than this as extortionate. It may be
said that the notion of Fairness or Equity which we ordinarily apply
in such judgments is to be distinguished from that of Justice; Equity
being in fact often contrasted with strict Justice, and conceived as
capable of coming into collision with it. And this is partly true:
but I think the wider and no less usual sense of the term Justice,
in which it includes Equity or Fairness, is the only one that can be
conveniently adopted in an ethical treatise: for in any case where
Equity comes into conflict with strict justice, its dictates are
held to be in a higher sense just, and what ought to be ultimately
carried into effect in the case considered--though not, perhaps, by
the administrators of law. I treat Equity, therefore, as a species of
Justice; though noting that the former term is more ordinarily used
in cases where the definiteness attainable is recognised as somewhat
less than in ordinary cases of rightful claims arising out of law or
contract. On what principle, then, can we determine the “fair” or
“equitable” price of services? When we examine the common judgments
of practical persons in which this judgment occurs, we find, I think,
that the ‘fair’ in such cases is ascertained by a reference to analogy
and custom, and that any service is considered to be ‘fairly worth’
what is usually given for services of the kind. Hence this element
of the notion of Justice may seem, after all, to resolve itself into
that discussed in § 2: and in some states of society it certainly
appears that the payment to be given for services is as completely
fixed by usage as any other customary duty, so that it would be a clear
disappointment of normal expectation to deviate from this usage. But
probably no one in a modern civilised community would maintain in its
full breadth this identification of the Just with the Usual price of
services: and so far as the judgments of practical persons may seem
to imply this, I think it must be admitted that they are superficial
or merely inadvertent, and ignore the established mode of determining
the market prices of commodities by free competition of producers and
traders. For where such competition operates the market value rises
and falls, and is different at different places and times; so that no
properly instructed person can expect any fixity in it, or complain of
injustice merely on account of the variations in it.
Can we then say that ‘market value’ (as determined by free competition)
corresponds to our notion of what is ideally just?
This is a question of much interest, because this is obviously the mode
of determining the remuneration of services that would be universal
in a society constructed on the principle previously discussed, of
securing the greatest possible Freedom to all members of the community.
It should be observed that this, which we may call the Individualistic
Ideal, is the type to which modern civilised communities have, until
lately, been tending to approximate: and it is therefore very important
to know whether it is one which completely satisfies the demands
of morality; and whether Freedom, if not an absolute end or First
Principle of abstract Justice, is still to be sought as the best means
to the realisation of a just social order by the general requital of
Desert.
At first sight it seems plausible to urge that the ‘market value’
represents the estimate set upon anything by mankind generally, and
therefore gives us exactly that ‘common sense’ judgment respecting
value which we are now trying to find. But on examination it seems
likely that the majority of men are not properly qualified to decide on
the value of many important kinds of services, from imperfect knowledge
of their nature and effects; so that, as far as these are concerned,
the true judgment will not be represented in the market-place. Even in
the case of things which a man is generally able to estimate, it may be
manifest in a particular case that he is ignorant of the real utility
of what he exchanges; and in this case the ‘free’ contract hardly
seems to be fair: though if the ignorance was not caused by the other
party to the exchange, Common Sense is hardly prepared to condemn the
latter as unjust for taking advantage of it. For instance, if a man
has discovered by a legitimate use of geological knowledge and skill
that there is probably a valuable mine on land owned by a stranger,
reasonable persons would not blame him for concealing his discovery
until he had bought the mine at its market value: yet it could not
be said that the seller got what it was really worth. In fact Common
Sense is rather perplexed on this point: and the _rationale_ of the
conclusion at which it arrives, must, I conceive, be sought in economic
considerations, which take us quite beyond the analysis of the common
notion of Justice.[226]
Again, there are social services recognised as highly important
which generally speaking have no price in any market, on account of
the indirectness and uncertainty of their practical utility: as,
for instance, scientific discoveries. The extent to which any given
discovery will aid industrial invention is so uncertain, that even if
the secret of it could be conveniently kept, it would not usually be
profitable to buy it.
But even if we confine our attention to products and services generally
marketable, and to bargains thoroughly understood on both sides,
there are still serious difficulties in the way of identifying the
notions of ‘free’ and ‘fair’ exchange. Thus, where an individual, or
combination of individuals, has the monopoly of a certain kind of
services, the market-price of the aggregate of such services can under
certain conditions be increased by diminishing their total amount; but
it would seem absurd to say that the social Desert of those rendering
the services is thereby increased, and a plain man has grave doubts
whether the price thus attained is fair. Still less is it thought fair
to take advantage of the transient monopoly produced by emergency:
thus, if I saw Crœsus drowning and no one near, it would not be held
fair in me to refuse to save him except at the price of half his
wealth. But if so, can it be fair for any class of persons to gain
competitively by the unfavourable economic situation of another class
with which they deal? And if we admit that it would be unfair, where
are we to draw the line? For any increase of the numbers of a class
renders its situation for bargaining less favourable: since the market
price of different services depends partly upon the ease or difficulty
of procuring them--as Political Economists say, ‘on the relation
between the supply of services and the demand for them’--and it does
not seem that any individual’s social Desert can properly be lessened
merely by the increased number or willingness of others rendering the
same services. Nor, indeed, does it seem that it can be decreased by
his own willingness, for it is strange to reward a man less because
he is zealous and eager in the performance of his function; yet in
bargaining the less willing always has the advantage. And, finally, it
hardly appears that the social worth of a man’s service is necessarily
increased by the fact that his service is rendered to those who can pay
lavishly; but his reward is certainly likely to be greater from this
cause.
Such considerations as these have led some political thinkers to hold
that Justice requires a mode of distributing payment for services,
entirely different from that at present effected by free competition:
and that all labourers ought to be paid according to the intrinsic
value of their labour as estimated by enlightened and competent judges.
If the Socialistic Ideal--as we may perhaps call it--could be realised
without counter-balancing evils, it would certainly seem to give a
nearer approximation to what we conceive as Divine Justice than the
present state of society affords. But this supposes that we have found
the rational method of determining value: which, however, is still
to seek. Shall we say that these judges are to take the value of a
service as proportionate to the amount of happiness produced by it? If
so, the calculation is, of course, exposed to all the difficulties of
the hedonistic method discussed in Book ii.: but supposing these can
be overcome, it is still hard to say how we are to compare the value
of different services that must necessarily be combined to produce
happy life. For example, how shall we compare the respective values of
necessaries and luxuries? for we may be more sensible of the enjoyment
derived from the latter, but we could not have this at all without the
former. And, again, when different kinds of labour co-operate in the
same production, how are we to estimate their relative values? for even
if all mere unskilled labour may be brought to a common standard, this
seems almost impossible in the case of different kinds of skill. For
how shall we compare the labour of design with that of achievement?
or the supervision of the whole with the execution of details? or the
labour of actually producing with that of educating producers? or the
service of the _savant_ who discovers a new principle, with that of the
inventor who applies it?
I do not see how these questions, or the difficulties noticed in the
preceding paragraph, can be met by any analysis of our common notion
of Justice. To deal with such points at all satisfactorily we have, I
conceive, to adopt quite a different line of reasoning: we have to ask,
not what services of a certain kind are intrinsically worth, but what
reward can procure them and whether the rest of society gain by the
services more than the equivalent reward. We have, in short, to give up
as impracticable the construction of an ideally just social order,[227]
in which all services are rewarded in exact proportion to their
intrinsic value. And, for similar reasons, we seem forced to conclude,
more generally, that it is impossible to obtain clear premises for
a reasoned method of determining exactly different amounts of Good
Desert. Indeed, perhaps, Common Sense scarcely holds such a method
to be possible: for though it considers Ideal Justice to consist in
rewarding Desert, it regards as Utopian any general attempt to realise
this ideal in the social distribution of the means of happiness. In the
actual state of society it is only within a very limited range that
any endeavour is made to reward Good Desert. Parents attempt this to
some extent in dealing with their children, and the State in rewarding
remarkable public services rendered by statesmen, soldiers, etc.: but
reflection on these cases will show how very rough and imperfect are
the standards used in deciding the amount due. And ordinarily the only
kind of Justice which we try to realise is that which consists in the
fulfilment of contracts and definite expectations; leaving the general
fairness of Distribution by Bargaining to take care of itself.
§ 7. When we pass to consider the case of Criminal Justice, we find,
in the first place, difficulties corresponding to those which we
have already noticed. We find, to begin, a similar implication and
partial confusion of the ideas of Law and Justice. For, as was said,
by ‘bringing a man to Justice’ we commonly mean ‘inflicting legal
punishment’ on him: and we think it right that neither more nor less
than the penalty prescribed by law should be executed, even though
we may regard the legal scale of punishment as unjust. At the same
time, we have no such perplexity in respect of changes in the law as
occurs in the case of Civil Justice; for we do not think that a man can
acquire, by custom, prescriptive rights to over-lenient punishment,
as he is thought to do to an unequal distribution of liberties and
privileges. If now we investigate the ideal of Criminal Justice, as
intuitively determined, we certainly find that in so far as punishment
is not regarded as merely preventive,[228] it is commonly thought that
it ought to be proportioned to the gravity of crime.[229] Still, when
we endeavour to make the method of apportionment perfectly rational and
precise, the difficulties seem at least as great as in the case of Good
Desert. For, first, the assumption of Free Will seems necessarily to
come in here also; since if a man’s bad deeds are entirely caused by
nature and circumstances, it certainly appears, as Robert Owen urged,
that he does not properly deserve to be punished for them; Justice
would rather seem to require us to try to alter the conditions under
which he acts. And we actually do punish deliberate offences more than
impulsive, perhaps as implying a more free choice of evil. Again,
we think that offences committed by persons who have had no moral
training, or a perverted training, are really less criminal; at the
same time it is commonly agreed that men can hardly remit punishment
on this account. Again the gravity--from a moral point of view--of a
crime seems to be at least much reduced, if the motive be laudable,
as when a man kills a villain whose crimes elude legal punishment,
or heads a hopeless rebellion for the good of his country: still it
would be paradoxical to affirm that we ought to reduce punishment
proportionally: Common Sense would hold that--whatever God may do--men
must, generally speaking, inflict severe punishment for any gravely
mischievous act forbidden by law which has been intentionally done,
even though it may have been prompted by a good motive.
But even if we neglect the motive, and take the intention only into
account, it is not easy to state clear principles for determining the
gravity of crimes. For sometimes, as in the case of the patriotic
rebel, the intention of the criminal is to do what is right and good:
and in many cases, though he knows that he is doing wrong, he does
not intend to cause any actual harm to any sentient being; as when
a thief takes what he thinks will not be missed. Again, we do not
commonly think that a crime is rendered less grave by being kept
perfectly secret; and yet a great part of the harm done by a crime is
the ‘secondary evil’ (as Bentham calls it) of the alarm and insecurity
which it causes; and this part is cut off by complete secrecy. It may
be replied that this latter difficulty is not a practical one; because
we are not called upon to punish a crime until it has been discovered,
and then the secondary evil has been caused, and is all the greater
because of the previous secrecy. But it remains true that it was not
designed for discovery; and therefore that this part of the evil caused
by the crime was not intended by the criminal. And if we say that the
heinousness of the crime depends on the loss of happiness that would
generally be caused by such acts if they were allowed to go unpunished,
and that we must suppose the criminal to be aware of this; we seem to
be endeavouring to force a utilitarian theory into an intuitional form
by means of a legal fiction.
We have hitherto spoken of intentional wrong-doing: but positive law
awards punishment also for harm that is due to rashness or negligence;
and the justification of this involves us in further difficulties.
Some jurists seem to regard rashness and negligence as positive states
of mind, in which the agent consciously refuses the attention or
reflection which he knows he ought to give; and no doubt this sort
of wilful recklessness does sometimes occur, and seems as properly
punishable as if the resulting harm had been positively intended. But
the law as actually administered does not require evidence that this
was the agent’s state of mind (which indeed in most cases it would be
impossible to give): but is content with proof that the harm might have
been prevented by such care as an average man would have shown under
the circumstances. And most commonly by ‘carelessness’ we simply mean
a purely negative psychological fact, _i.e._ that the agent did not
perform certain processes of observation or reflection; it is therefore
at the time strictly involuntary, and so scarcely seems to involve
ill-desert. It may be said perhaps that though the present carelessness
is not blameworthy, the past neglect to cultivate habits of care is so.
But in many individual instances we cannot reasonably infer even this
past neglect; and in such cases the utilitarian theory of punishment,
which regards it as a means of preventing similar harmful acts in
the future, seems alone applicable. Similar difficulties arise, as
was before hinted (p. 282), in determining the limits within which
Reparation is due; that is, on the view that it is not incumbent on us
to make compensation for all harm caused by our muscular actions, but
only for harm which--if not intentional--was due to our rashness or
negligence.
The results of this examination of Justice may be summed up as
follows. The prominent element in Justice as ordinarily conceived
is a kind of Equality: that is, Impartiality in the observance or
enforcement of certain general rules allotting good or evil to
individuals. But when we have clearly distinguished this element,
we see that the definition of the virtue required for practical
guidance is left obviously incomplete. Inquiring further for the
right general principles of distribution, we find that our common
notion of Justice includes--besides the principle of Reparation for
injury--two quite distinct and divergent elements. The one, which we
may call Conservative Justice, is realised (1) in the observance of
Law and Contracts and definite understandings, and in the enforcement
of such penalties for the violation of these as have been legally
determined and announced; and (2) in the fulfilment of natural and
normal expectations. This latter obligation, however, is of a somewhat
indefinite kind. But the other element, which we have called Ideal
Justice, is still more difficult to define; for there seem to be
two quite distinct conceptions of it, embodied respectively in what
we have called the Individualistic and the Socialistic Ideals of a
political community. The first of these takes the realisation of
Freedom as the ultimate end and standard of right social relations:
but on examining it closer we find that the notion of Freedom will
not give a practicable basis for social construction without certain
arbitrary[230] definitions and limitations: and even if we admit these,
still a society in which Freedom is realised as far as is feasible does
not completely suit our sense of Justice. _Prima facie_, this is more
satisfied by the Socialistic Ideal of Distribution, founded on the
principle of requiting Desert: but when we try to make this principle
precise, we find ourselves again involved in grave difficulties; and
similar perplexities beset the working out of rules of Criminal Justice
on the same principle.
FOOTNOTES:
[204] How far an independent principle of Justice is required for the
Utilitarian method will be hereafter considered. (Book iv. chap. i.)
[205] Aristotle, in expounding the virtue of Δικαιοσύνη, which
corresponds to our Justice, notices that the word has two meanings; in
the wider of which it includes in a manner all Virtue, or at any rate
the social side or aspect of Virtue generally. The word ‘Justice’ does
not appear to be used in English in this comprehensive manner (except
occasionally in religious writings, from the influence of the Greek
word as used in the New Testament): although the verb “to justify”
seems to have this width of meaning; for when I say that one is
“justified” in doing so and so, I mean no more than that such conduct
is right for him. In the present discussion, at any rate, I have
confined myself to the more precise signification of the term.
[206] I ought to say that, in my view, this only applies to taxes
in the narrower sense in which they are distinguished from payments
for services received by individuals from Government. In the case of
these latter, I conceive that Justice is rather held to lie in duly
proportioning payment to amount of service received. Some persons have
held that all payments made to Government ought to be determined on
this principle: and this view seems to me to be consistent with the
individualistic ideal of political order, which I shall presently
examine: but, as I have elsewhere tried to show (_Princ. of Pol.
Econ._ Book iii. chap. viii.), there is an important department of
Governmental expenditure to which this principle is not applicable.
[207] It may be well to notice a case in which the very equality of
application, which is, as has been said, implied in the mere idea of a
law couched in general terms, is felt to be unjust. This is the case
where the words of a statute, either from being carelessly drawn, or on
account of the inevitable defects of even the most precise terminology,
include (or exclude) persons and circumstances which are clearly not
included in (or excluded from) the real intent and purpose of the law.
In this case a particular decision, strictly in accordance with a law
which generally considered is just, may cause extreme injustice: and so
the difference between actual Law and Justice is sharply brought out.
Still we cannot in this way obtain principles for judging generally of
the justice of laws.
[208] It should be observed that we cannot even say, in treating of
the private conduct of individuals, that _all_ arbitrary inequality
is recognised as unjust: it would not be commonly thought unjust in a
rich bachelor with no near relatives to leave the bulk of his property
in providing pensions exclusively for indigent red-haired men, however
unreasonable and capricious the choice might appear.
[209] It may be observed that sometimes claims generated in this way
have legal validity; as when a right of way is established without
express permission of the landowner, merely by his continued indulgence.
[210] This is the case even, as I say, when laws are altered lawfully:
still more after any exceptional crisis at which there has occurred
a rupture of political order: for then the legal claims arising out
of the new order which is thus rooted in disorder conflict with those
previously established in a manner which admits of no theoretical
solution: it can only be settled by a rough practical compromise. See
next chapter, § 3.
[211] Book i. chap. vi. § 2.
[212] It is characteristic of an unprogressive society that in it these
two points of view are indistinguishable; the Jural Ideal absolutely
coincides with the Customary, and social perfection is imagined to
consist in the perfect observance of a traditional system of rules.
[213] This question, how far the conception of Freedom involves
unlimited right to limit Freedom by free contract, will meet us again
in the next chapter, when we consider the general duty of obedience to
Law.
[214] It has often been urged as a justification for expropriating
savages from the land of new colonies that tribes of hunters have
really no moral right to property in the soil over which they hunt.
[215] This is the argument used by optimistic political economists such
as Bastiat.
[216] The further consideration of Political Freedom, with which
we shall be occupied in the next chapter, will afford additional
illustrations of the difficulties involved in the notion.
[217] If the view given in the text be sound, it illustrates very
strikingly the difference between natural instincts and moral
intuitions. For the impulse to requite a service is, on its emotional
side, quite different from that which prompts us to claim the fruits of
our labour, or “a fair day’s wages for a fair day’s work.” Still, our
apprehension of the _duty_ of Gratitude seems capable of being subsumed
under the more general intuition ‘that desert ought to be requited.’
[218] It certainly requires a considerable strain to bring the ‘right
of First Discovery’ under the notion of ‘right to the produce of one’s
labour.’ Hence Locke and others have found it necessary to suppose,
as the ultimate justification of the former right, ‘a tacit consent’
of mankind in general that all things previously unappropriated shall
belong to the first appropriator. But this must be admitted to be a
rather desperate device of ethico-political construction: on account
of the fatal facility with which it may be used to justify almost any
arbitrariness in positive law.
[219] The reader will find an interesting illustration of the
perplexity of Common Sense on this point in Mr. O. W. Holmes, Junior’s,
book on _The Common Law_, chap. iii., where the author gives a
penetrating discussion of the struggle, in the development of the
doctrine of torts in English Law, between two opposing views: (1) that
“the risk of a man’s conduct is thrown upon him as the result of some
moral short-coming,” and (2) that “a man acts at his peril always, and
wholly irrespective of the state of his consciousness upon the matter.”
The former is the view that has in the main prevailed in English Law;
and this seems to me certainly in harmony with the Common Sense of
mankind, so far as legal liability is concerned; but I do not think
that the case is equally clear as regards moral obligation.
[220] Cf. _post_, pp. 292-3. It may be added that there is often a
further difficulty in ascertaining the amount of compensation due:
for this frequently involves a comparison of things essentially
disparate, and there are some kinds of harm which it seems impossible
to compensate.
[221] In the earlier stage of moral development, referred to in the
preceding paragraph, retribution inflicted on the wrongdoer was
regarded as the normal mode of reparation to the person injured. But
this view is contrary to the moral Common Sense of Christian Societies.
[222] I think the term “merit” often blends the two notions, as when
we speak of “promotion by merit.” By moralists, however, “merit” is
generally used as exactly equivalent to what I have called “desert.”
[223] The only tenable Determinist interpretation of Desert is, in my
opinion, the Utilitarian: according to which, when a man is said to
deserve reward for any services to society, the meaning is that it is
expedient to reward him, in order that he and others may be induced
to render similar services by the expectation of similar rewards. Cf.
_post_, Book iv. chap. iii. § 4.
[224] Perhaps we may partly attribute to the difficulties above
discussed, that the notion of Desert has sometimes dropped out of the
ideal of Utopian reconstructors of society, and ‘Equality of Happiness’
has seemed to be the only end. Justice, it has been thought, prescribes
simply that each should have an equal share of happiness, as far as
happiness depends on the action of others. But there seems to be much
difficulty in working this out: for (apart from the considerations
of Fitness above mentioned) equal happiness is not to be attained by
equal distribution of objects of desire. For some require more and some
less to be equally happy. Hence, it seems, we must take differences of
_needs_ into consideration. But if merely mental needs are included (as
seems reasonable) we should have to give less to cheerful, contented,
self-sacrificing people than to those who are naturally moody and
_exigeant_, as the former can be made happy with less. And this is too
paradoxical to recommend itself to Common Sense.
[225] No doubt, it would be possible to remove, to some extent, the
inequalities that are attributable to circumstances, by bringing the
best education within the reach of all classes, so that all children
might have an equal opportunity of being selected and trained for
any functions for which they seemed to be fit: and this seems to be
prescribed by ideal justice, in so far as it removes or mitigates
arbitrary inequality. Accordingly in those ideal reconstructions of
society, in which we may expect to find men’s notions of abstract
justice exhibited, such an institution as this has generally found a
place. Still, there will be much natural inequality which we cannot
remove or even estimate.
[226] Cf. _post_, Book iv. chap. iii. § 4.
[227] It is not perhaps necessary that I should here enlarge on the
_practical_ obstacles in the way of any attempt to realise such an
ideal system.
[228] I have already expressed my opinion that this Utilitarian view of
punishment is gradually tending to prevail; but I do not think that it
has yet prevailed.
[229] Of course those who hold that the essence of Justice consists in
securing external Freedom among the members of a community, and that
punishment is only justified as a means to this end, naturally think
that in awarding punishment we ought to consider merely its efficacy as
such means. But this can scarcely be put forward as an interpretation
of the common notion of Just Punishment.
[230] By ‘arbitrary’ I mean such definitions and limitations as destroy
the self-evidence of the principle; and, when closely examined, lead us
to regard it as subordinate.