[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.
[231] Cf. ante, Book ii. chap. v. § [2].
[232] It is perhaps hardly necessary that I should here notice the Hobbist doctrine, revived in a modified form by Austin, that “the power of the sovereign is incapable of [legal] limitation.” For no one now maintains pure Hobbism: and Austin is as far as possible from meaning that there cannot be an express or tacit understanding between Sovereign and Subjects, the violation of which by the former may make it morally right for the latter to rebel. In fact, as used by him, Hobbes’ doctrine reduces itself to the rather unimportant proposition that a sovereign will not be punished for unconstitutional conduct through the agency of his own law-courts, so long as he remains sovereign. I may take this opportunity of observing that Austin’s definition of Law is manifestly unsuited for our present purpose: since a law, in his view, is not a command that ought to be obeyed, but a command for the violation of which we may expect a particular kind of punishment.