For it is commonly thought that the individual’s right to Freedom includes the right of appropriating material things. But, if Freedom be understood strictly, I do not see that it implies more than his right to non-interference while actually using such things as can only be used by one person at once: the right to prevent others from using at any future time anything that an individual has once seized seems an interference with the free action of others beyond what is needed to secure the freedom, strictly speaking, of the appropriator. It may perhaps be said that a man, in appropriating a particular thing, does not interfere with the freedom of others, because the rest of the world is still open to them. But others may want just what he has appropriated: and they may not be able to find anything so good at all, or at least without much labour and search; for many of the instruments and materials of comfortable living are limited in quantity. This argument applies especially to property in land: and it is to be observed that, in this case, there is a further difficulty in determining how much a man is to be allowed to appropriate by ‘first occupation.’ If it be said that a man is to be understood to occupy what he is able to use, the answer is obvious that the use of land by any individual may vary almost indefinitely in extent, while diminishing proportionally in intensity. For instance, it would surely be a paradoxical deduction from the principle of Freedom to maintain that an individual had a right to exclude others from pasturing sheep on any part of the land over which his hunting expeditions could extend.[214] But if so can it be clear that a shepherd has such a right against one who wishes to till the land, or that one who is using the surface has a right to exclude a would-be miner? I do not see how the deduction is to be made out. Again, it may be disputed whether the right of Property, as thus derived, is to include the right of controlling the disposal of one’s possessions after death. For this to most persons seems naturally bound up with ownership: yet it is paradoxical to say that we interfere with a man’s freedom of action by anything that we may do after his death to what he owned during his life: and jurists have often treated this right as purely conventional and not therefore included in ‘natural law.’
Other difficulties might be raised: but we need not pursue them, for if Freedom be taken simply to mean that one man’s actions are to be as little as possible restrained by others, it is obviously more fully realised without appropriation. And if it be said that it includes, beside this, facility and security in the gratification of desires, and that it is Freedom in this sense that we think should be equally distributed, and that this cannot be realised without appropriation; then it may be replied, that in a society where nearly all material things are already appropriated, this kind of Freedom is not and cannot be equally distributed. A man born into such a society, without inheritance, is not only far less free than those who possess property, but he is less free than if there had been no appropriation. It may be said[215] that, having freedom of contract, he will give his services in exchange for the means of satisfying his wants; and that this exchange must necessarily give him more than he could have got if he had been placed in the world by himself; that, in fact, any human society always renders the part of the earth that it inhabits more capable of affording gratification of desires to each and all of its later-born members than it would otherwise be. But however true this may be as a general rule, it is obviously not so in all cases: as men are sometimes unable to sell their services at all, and often can only obtain in exchange for them an insufficient subsistence. And, even granting it to be true, it does not prove that society, by appropriation, has not interfered with the natural freedom of its poorer members: but only that it compensates them for such interference, and that the compensation is adequate: and it must be evident that if compensation in the form of material commodities can be justly given for an encroachment on Freedom, the realisation of Freedom cannot be the one ultimate end of distributive Justice.
§ 5. It seems, then, that though Freedom is an object of keen and general desire, and an important source of happiness, both in itself and indirectly from the satisfaction of natural impulses which it allows, the attempt to make it the fundamental notion of theoretical Jurisprudence is attended with insuperable difficulties: and that even the Natural Rights which it claims to cover cannot be brought under it except in a very forced and arbitrary manner.[216] But further, even if this were otherwise, an equal distribution of Freedom does not seem to exhaust our notion of Justice. Ideal Justice, as we commonly conceive it, seems to demand that not only Freedom but all other benefits and burdens should be distributed, if not equally, at any rate justly,—Justice in distribution being regarded as not identical with Equality, but merely exclusive of arbitrary inequality.
How, then, shall we find the principle of this highest and most comprehensive ideal?
We shall be led to it, I think, by referring again to one of the grounds of obligation to render services, which was noticed in the last chapter: the claim of Gratitude. It there appeared that we have not only a natural impulse to requite benefits, but also a conviction that such requital is a duty, and its omission blameworthy, to some extent at least; though we find it difficult to define the extent. Now it seems that when we, so to say, universalise this impulse and conviction, we get the element in the common view of Justice, which we are now trying to define. For if we take the proposition ‘that good done to any individual ought to be requited by him,’ and leave out the relation to the individual in either term of the proposition, we seem to have an equally strong conviction of the truth of the more general statement ‘that good deeds ought to be requited.’[217] And if we take into consideration all the different kinds and degrees of services, upon the mutual exchange of which society is based, we get the proposition ‘that men ought to be rewarded in proportion to their deserts.’ And this would be commonly held to be the true and simple principle of distribution in any case where there are no claims arising from Contract or Custom to modify its operation.
For example, it would be admitted that—if there has been no previous arrangement—the profits of any work or enterprise should be divided among those who have contributed to its success in proportion to the worth of their services. And it may be observed, that some thinkers maintain the proposition discussed in the previous section—that Law ought to aim at securing the greatest possible Freedom for each individual—not as absolute and axiomatic, but as derivative from the principle that Desert ought to be requited; on the ground that the best way of providing for the requital of Desert is to leave men as free as possible to exert themselves for the satisfaction of their own desires, and so to win each his own requital. And this seems to be really the principle upon which the Right of Property is rested, when it is justified by the proposition that ‘every one has an exclusive right to the produce of his labour.’ For on reflection it is seen that no labour really ‘produces’ any material thing, but only adds to its value: and we do not think that a man can acquire a right to a material thing belonging to another, by spending his labour on it—even if he does so in the bona fide belief that it is his own property—but only to adequate compensation for his labour; this, therefore, is what the proposition just quoted must mean. The principle is, indeed, sometimes stretched to explain the original right of property in materials, as being in a sense ‘produced’ (i.e. found) by their first discoverer;[218] but here again, reflection shows that Common Sense does not grant this (as a moral right) absolutely, but only in so far as it appears to be not more than adequate compensation for the discoverer’s trouble. For example, we should not consider that the first finder of a large uninhabited region had a moral right to appropriate the whole of it. Hence this justification of the right of property refers us ultimately to the principle ‘that every man ought to receive adequate requital for his labour.’ So, again, when we speak of the world as justly governed by God, we seem to mean that, if we could know the whole of human existence, we should find that happiness is distributed among men according to their deserts. And Divine Justice is thought to be a pattern which Human Justice is to imitate as far as the conditions of human society allow.
This kind of Justice, as has been said, seems like Gratitude universalised: and the same principle applied to punishment may similarly be regarded as Resentment universalised; though the parallel is incomplete, if we are considering the present state of our moral conceptions. History shows us a time in which it was thought not only as natural, but as clearly right and incumbent on a man, to requite injuries as to repay benefits: but as moral reflection developed in Europe this notion was repudiated, so that Plato taught that it could never be right really to harm any one, however he may have harmed us. And this is the accepted doctrine in Christian societies, as regards requital by individuals of personal wrongs. But in its universalised form the old conviction still lingers in the popular view of Criminal Justice: it seems still to be widely held that Justice requires pain to be inflicted on a man who has done wrong, even if no benefit result either to him or to others from the pain. Personally, I am so far from holding this view that I have an instinctive and strong moral aversion to it: and I hesitate to attribute it to Common Sense, since I think that it is gradually passing away from the moral consciousness of educated persons in the most advanced communities: but I think it is still perhaps the more ordinary view.
This, then, is one element of what Aristotle calls Corrective Justice, which is embodied in criminal law. It must not be confounded with the principle of Reparation, on which legal awards of damages are based. We have already noticed this as a simple deduction from the maxim of general Benevolence, which forbids us to do harm to our fellow-creatures: for if we have harmed them, we can yet approximately obey the maxim by giving compensation for the harm. Though here the question arises whether we are bound to make reparation for harm that has been quite blamelessly caused: and it is not easy to answer it decisively.[219] On the whole, I think we should condemn a man who did not offer some reparation for any serious injury caused by him to another—even if quite involuntarily caused, and without negligence: but perhaps we regard this rather as a duty of Benevolence—arising out of the general sympathy that each ought to have for others, intensified by this special occasion—than as a duty of strict Justice. If, however, we limit the requirement of Reparation, under the head of strict Justice, to cases in which the mischief repaired is due to acts or omissions in some degree culpable, a difficulty arises from the divergence between the moral view of culpability, and that which social security requires. Of this I will speak presently.[220] In any case there is now[221] no danger of confusion or collision between the principle of Reparative and that of Retributive Justice, as the one is manifestly concerned with the claims of the injured party, and the other with the deserts of the wrongdoer: though in the actual administration of Law the obligation of paying compensation for wrong may sometimes be treated as a sufficient punishment for the wrongdoer.
When, however, we turn again to the other branch of Retributive Justice, which is concerned with the reward of services, we find another notion, which I will call Fitness, often blended indistinguishably[222] with the notion of Desert, and so needing to be carefully separated from it; and when the distinction has been made, we see that the two are liable to come into collision. I do not feel sure that the principle of ‘distribution according to Fitness’ is found, strictly speaking, in the analysis of the ordinary notion of Justice: but it certainly enters into our common conception of the ideal or perfectly rational order of society, as regards the distribution both of instruments and functions, and (to some extent at least) of other sources of happiness. We certainly think it reasonable that instruments should be given to those who can use them best, and functions allotted to those who are most competent to perform them: but these may not be those who have rendered most services in the past. And again, we think it reasonable that particular material means of enjoyment should fall to the lot of those who are susceptible of the respective kinds of pleasure; as no one would think of allotting pictures to a blind man, or rare wines to one who had no taste: hence we should probably think it fitting that artists should have larger shares than mechanics in the social distribution of wealth, though they may be by no means more deserving. Thus the notions of Desert and Fitness appear at least occasionally conflicting; but perhaps, as I have suggested, Fitness should rather be regarded as a utilitarian principle of distribution, inevitably limiting the realisation of what is abstractly just, than as a part of the interpretation of Justice proper: and it is with the latter that we are at present concerned. At any rate it is the Requital of Desert that constitutes the chief element of Ideal Justice, in so far as this imports something more than mere Equality and Impartiality. Let us then examine more closely wherein Desert consists; and we will begin with Good Desert or Merit, as being of the most fundamental and permanent importance; for we may hope that crime and its punishment will decrease and gradually disappear as the world improves, but the right or best distribution of the means of wellbeing is an object that we must always be striving to realise.
§ 6. And first, the question which we had to consider in defining Gratitude again recurs: whether, namely, we are to apportion the reward to the effort made, or to the results attained. For it may be said that the actual utility of any service must depend much upon favourable circumstances and fortunate accidents, not due to any desert of the agent: or again, may be due to powers and skills which were connate, or have been developed by favourable conditions of life, or by good education, and why should we reward him for these? (for the last-mentioned we ought rather to reward those who have educated him). And certainly it is only in so far as moral excellences are exhibited in human achievements that they are commonly thought to be such as God will reward. But by drawing this line we do not yet get rid of the difficulty. For it may still be said that good actions are due entirely, or to a great extent, to good dispositions and habits, and that these are partly inherited and partly due to the care of parents and teachers; so that in rewarding these we are rewarding the results of natural and accidental advantages, and it is unreasonable to distinguish these from others, such as skill and knowledge, and to say that it is even ideally just to reward the one and not the other. Shall we say, then, that the reward should be proportionate to the amount of voluntary effort for a good end? But Determinists will say that even this is ultimately the effect of causes extraneous to the man’s self. On the Determinist view, then, it would seem to be ideally just (if anything is so) that all men should enjoy equal amounts of happiness: for there seems to be no justice in making A happier than B, merely because circumstances beyond his own control have first made him better. But why should we not, instead of ‘all men,’ say ‘all sentient beings’? for why should men have more happiness than any other animal? But thus the pursuit of ideal justice seems to conduct us to such a precipice of paradox that Common Sense is likely to abandon it. At any rate the ordinary idea of Desert has thus altogether vanished.[223] And thus we seem to be led to the conclusion which I anticipated in Book i. chap. [v.]: that in this one department of our moral consciousness the idea of Free Will seems involved in a peculiar way in the moral ideas of Common Sense, since if it is eliminated the important notions of Desert or Merit and Justice require material modification.[224] At the same time, the difference between Determinist and Libertarian Justice can hardly have any practical effect. For in any case it does not seem possible to separate in practice that part of a man’s achievement which is due strictly to his free choice from that part which is due to the original gift of nature and to favouring circumstances:[225] so that we must necessarily leave to providence the realisation of what we conceive as the theoretical ideal of Justice, and content ourselves with trying to reward voluntary actions in proportion to the worth of the services intentionally rendered by them.