The Methods of Ethics

by Henry Sidgwick

Now perhaps the most obvious and commonly recognised characteristic of just laws is that they are Equal: and in some departments of legislation, at least, the common notion of Justice seems to be exhaustively expressed by that of Equality. It is commonly thought, for example, that a system of taxation would be perfectly just if it imposed exactly equal burdens upon all:[206] and though this notion of ‘equal burden’ is itself somewhat difficult to define with the precision required for practical application, still we may say that Justice here is thought to resolve itself into a kind of equality. However, we cannot affirm generally that all laws ought to affect all persons equally, for this would leave no place for any laws allotting special privileges and burdens to special classes of the community; but we do not think all such laws necessarily unjust: e.g. we think it not unjust that only persons appointed in a certain way should share in legislation, and that men should be forced to fight for their country but not women. Hence some have said that the only sense in which justice requires a law to be equal is that its execution must affect equally all the individuals belonging to any of the classes specified in the law. And no doubt this rule excludes a very real kind of injustice: it is of the highest importance that judges and administrators should never be persuaded by money or otherwise to show ‘respect of persons.’ So much equality, however, is involved in the very notion of a law, if it be couched in general terms: and it is plain that laws may be equally executed and yet unjust: for example, we should consider a law unjust which compelled only red-haired men to serve in the army, even though it were applied with the strictest impartiality to all red-haired men. We must therefore conclude, that, in laying down the law no less than in carrying it out, all inequality[207] affecting the interests of individuals which appears arbitrary, and for which no sufficient reason can be given, is held to be unjust. But we have still to ask, what kind of reasons for inequality Justice admits and from what general principle (or principles) all such reasons are to be deduced?

§ 2. Perhaps we shall find it easier to answer this question, if we examine the notion of Justice as applied to that part of private conduct which lies beyond the sphere of law. Here, again, we may observe that the notion of Justice always involves allotment of something considered as advantageous or disadvantageous: whether it be money or other material means of happiness; or praise, or affection, or other immaterial good, or some merited pain or loss. Hence I should answer the question raised in the preceding chapter (§ [3]), as to the classification of the duties there discussed under the heads of Justice and Benevolence respectively, by saying that the fulfilment of any duty of the affections, considered by itself, does not exemplify Justice: but that when we come to compare the obligations arising out of different affectionate relations, and to consider the right allotment of love and kind services, the notion of Justice becomes applicable. In order to arrange this allotment properly we have to inquire what is Just. What then do we mean by a just man in matters where law-observance does not enter? It is natural to reply that we mean an impartial man, one who seeks with equal care to satisfy all claims which he recognises as valid and does not let himself be unduly influenced by personal preferences. And this seems an adequate account of the virtue of justice so far as we consider it merely subjectively, and independently of the intellectual insight required for the realisation of objective justice in action: if we neglect to give due consideration to any claim which we regard as reasonable, our action cannot be just in intention. This definition suffices to exclude wilful injustice: but it is obvious that it does not give us a sufficient criterion of just acts, any more than the absence of arbitrary inequality was found to be a sufficient criterion of just laws.[208] We want to know what are reasonable claims.

Well, of these the most important—apart from the claims discussed in the preceding chapter—seems to be that resulting from contract. This is to a certain extent enforced by law: but it is clear to us that a just man will keep engagements generally, even when there may be no legal penalty attached to their violation. The exact definition of this duty, and its commonly admitted qualifications, will be discussed in the next chapter: but of its general bindingness Common Sense has no doubt.

Further, we include under the idea of binding engagements not merely verbal promises, but also what are called ‘implied contracts’ or ‘tacit understandings.’ But this latter term is a difficult one to keep precise: and, in fact, is often used to include not only the case where A has in some way positively implied a pledge to B, but also the case where B has certain expectations of which A is aware. Here, however, the obligation is not so clear: for it would hardly be said that a man is bound to dispel all erroneous expectations that he may know to be formed respecting his conduct, at the risk of being required to fulfil them. Still, if the expectation was such as most persons would form under the circumstances, there seems to be some sort of moral obligation to fulfil it, if it does not conflict with other duties, though the obligation seems less definite and stringent than that arising out of contract. Indeed I think we may say that Justice is generally, though somewhat vaguely, held to prescribe the fulfilment of all such expectations (of services, etc.) as arise naturally and normally out of the relations, voluntary or involuntary, in which we stand towards other human beings. But the discussions in the preceding chapter have shown the difficulty of defining even those duties of this kind which, in an indefinite form, seemed certain and indisputable: while others are only defined by customs which to reflection appear arbitrary. And though while these customs persist, the expectations springing from them are in a certain sense natural, so that a just man seems to be under a kind of obligation to fulfil them, this obligation cannot be regarded as clear or complete, for two reasons that were given in the last chapter; first, because customs are continually varying, and as long as any one is in a state of variation, growing or decaying, the validity of the customary claim is obviously doubtful; and secondly, because it does not seem right that an irrational and inexpedient custom should last for ever, and yet it can only be abolished by being “more honoured in the breach than in the observance.”

This line of reflection therefore has landed us in a real perplexity respecting the department of duty which we are at present examining. Justice is something that we conceive to be intrinsically capable of perfectly definite determination: a scrupulously just man, we think, must be very exact and precise in his conduct. But when we consider that part of Justice which consists in satisfying such natural and customary claims as arise independently of contract, it seems impossible to estimate these claims with any exactness. The attempt to map out the region of Justice reveals to us a sort of margin or dim borderland, tenanted by expectations which are not quite claims and with regard to which we do not feel sure whether Justice does or does not require us to satisfy them. For the ordinary actions of men proceed on the expectation that the future will resemble the past: hence it seems natural to expect that any particular man will do as others do in similar circumstances, and, still more, that he will continue to do whatever he has hitherto been in the habit of doing; accordingly his fellow-men are inclined to think themselves wronged by his suddenly omitting any customary or habitual act, if the omission causes them loss or inconvenience.[209] On the other hand, if a man has given no pledge to maintain a custom or habit, it seems hard that he should be bound by the unwarranted expectations of others. In this perplexity, common sense often appears to decide differently cases similar in all respects, except in the quantity of disappointment caused by the change. For instance, if a poor man were to leave one tradesman and deal with another because the first had turned Quaker, we should hardly call it an act of injustice, however unreasonable we might think it: but if a rich country gentleman were to act similarly towards a poor neighbour, many persons would say that it was unjust persecution.

The difficulty just pointed out extends equally to the duties of kindness—even to the specially stringent and sacred duties of the domestic affections and gratitude—discussed in the previous chapter. We cannot get any new principle for settling any conflict that may present itself among such duties, by asking ‘what Justice requires of us’: the application of the notion of Justice only leads us to view the problem in a new aspect as a question of the right distribution of kind services—it does not help us to solve it. Had we clear and precise intuitive principles for determining the claims (e.g.) of parents on children, children on parents, benefactors on the recipients of their benefits, we might say exactly at what point or to what extent the satisfaction of one of these claims ought in justice to be postponed to the satisfaction of another, or to any worthy aim of a different kind: but I know no method of determining a problem of this kind which is not either implicitly utilitarian, or arbitrarily dogmatic, and unsupported by Common Sense.

§ 3. If now we turn again to the political question, from which we diverged, we see that we have obtained from the preceding discussion one of the criteria of the justice of laws which we were seeking—viz. that they must avoid running counter to natural and normal expectations—: but we see at the same time that the criterion cannot be made definite in its application to private conduct, and it is easy to show that there is the same indefiniteness and consequent difficulty in applying it to legislation. For Law itself is a main source of natural expectations; and, since in ordinary times the alterations in law are very small in proportion to the amount unaltered, there is always a natural expectation that the existing laws will be maintained: and although this is, of course, an indefinite and uncertain expectation in a society like ours, where laws are continually being altered by lawful authority, it is sufficient for people in general to rely upon in arranging their concerns, investing their money, choosing their place of abode, their trade and profession, etc. Hence when such expectations are disappointed by a change in the law, the disappointed persons complain of injustice, and it is to some extent admitted that justice requires that they should be compensated for the loss thus incurred. But such expectations are of all degrees of definiteness and importance, and generally extend more widely as they decrease in value, like the ripples made by throwing a stone into a pond, so that it is practically impossible to compensate them all: at the same time, I know no intuitive principle by which we could separate valid claims from invalid, and distinguish injustice from simple hardship.[210]

But even if this difficulty were overcome further reflection must, I think, show that the criterion above given is incomplete or imperfectly stated: otherwise it would appear that no old law could be unjust, since laws that have existed for a long time must create corresponding expectations. But this is contrary to Common Sense: as we are continually becoming convinced that old laws are unjust (e.g. laws establishing slavery): indeed, this continually recurring conviction seems to be one of the great sources of change in the laws of a progressive society.

Perhaps we may say that there are natural expectations which grow up from other elements of the social order, independent of and so possibly conflicting with laws: and that we call rules unjust which go counter to these. Thus e.g. primogeniture appears to many unjust, because all the landowner’s children are brought up in equally luxurious habits, and share equally the paternal care and expenditure, and so the inequality of inheritance seems paradoxical and harsh. Still, we cannot explain every case in this way: for example, the conviction that slavery is unjust can hardly be traced to anything in the established order of the slave-holding society, but seems to arise in a different way.