The last claim to be considered is that of Special Need. This has been substantially stated already, in investigating the obligation of General Benevolence or Common Humanity. For it was said that we owe to all men such services as we can render by a sacrifice or effort small in comparison with the service: and hence, in proportion as the needs of other men present themselves as urgent, we recognise the duty of relievingthem out of our superfluity. But I have thought it right to notice the duty separately, because we are commonly prompted to fulfil it by the specific emotion of Pity or Compassion. Here, again, there seems a doubt how far it is good to foster and encourage this emotion—as distinct from the practical habit of rendering prompt aid and succour in distress, whenever such succour is judged to be right. On the one hand, the emotional impulse tends to make the action of relieving need not only easier to the agent, but more graceful and pleasing: on the other hand, it is generally recognised that mistaken pity is more likely to lead us astray than—e.g.—mistaken gratitude: as it is more liable to interfere dangerously with the infliction of penalties required for the maintenance of social order, or with the operation of motives to industry and thrift, necessary for economic well-being.
And when—to guard against the last-mentioned danger—we try to define the external duty of relieving want, we find ourselves face to face with what is no mere problem of the closet, but a serious practical perplexity to most moral persons at the present day. For many ask whether it is not our duty to refrain from all superfluous indulgences, until we have removed the misery and want that exist around us, as far as they are removable by money. And in answering this question Common Sense seems to be inevitably led to a consideration of the economic consequences of attempting—either by taxation and public expenditure, or by the voluntary gifts of private persons—to provide a sufficient income for all needy members of the community; and is thus gradually brought to substitute for the Intuitional method of dealing with problems of this kind a different procedure, having at least much affinity with the Utilitarian method.[203]
In conclusion, then, we must admit that while we find a number of broad and more or less indefinite rules unhesitatingly laid down by Common Sense in this department of duty, it is difficult or impossible to extract from them, so far as they are commonly accepted, any clear and precise principles for determining the extent of the duty in any case. And yet, as we saw, such particular principles of distribution of the services to which good-will prompts seem to be required forthe perfection of practice no less than for theoretical completeness; in so far as the duties which we have been considering are liable to come into apparent conflict with each other and with other prescriptions of the moral code.
In reply it may perhaps be contended that if we are seeking exactness in the determination of duty, we have begun by examining the wrong notion: that, in short, we ought to have examined Justice rather than Benevolence. It may be admitted that we cannot find as much exactness as we sometimes practically need, by merely considering the common conceptions of the duties to which men are prompted by natural affections; but it may still be maintained that we shall at any rate find such exactness adequately provided for under the head of Justice. This contention I will proceed to examine in the next chapter.
Note.—It should be borne in mind throughout the discussion carried on in this and the next six chapters that what we are primarily endeavouring to ascertain is not true morality but the morality of Common Sense: so that if any moral proposition is admitted to be paradoxical, the admission excludes it,—not as being necessarily false, but as being not what Common Sense holds.
Note.—It should be borne in mind throughout the discussion carried on in this and the next six chapters that what we are primarily endeavouring to ascertain is not true morality but the morality of Common Sense: so that if any moral proposition is admitted to be paradoxical, the admission excludes it,—not as being necessarily false, but as being not what Common Sense holds.
§ 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 distributionoughtto 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 forpractical 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 sufficientreason 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 whereAhas in some way positively implied a pledge toB, but also the case whereBhas certain expectations of whichAis 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 andinexpedient 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 dutiesof 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 rightdistributionof 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 tocompensate 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. Thuse.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 laterconventions 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 thecustomarydistribution 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 showitself 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 tooweto 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 truefundamental 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 knowa priorithat 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 beprohibited 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 theexternalcoercion 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 restof 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 notequally, 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,universalisethis 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 theprinciple 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 thebona fidebelief that it is his own property—but only to adequatecompensationfor 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 amoralright) 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 punishmentmay 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, Ithink 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 orperfectly 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 haveeducated him). And certainly it is only in so far asmoralexcellences 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 makingAhappier thanB, 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 convenientlyadopted 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 thatthis, 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 therationaleof 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 souncertain, 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 tobe 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 thesavantwho 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 thegravity 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 beingkept 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 ofpunishment, 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 satisfiedby 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.