Chapter V: Justice (2)

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.