The Methods of Ethics

by Henry Sidgwick

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 conveniently adopted 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 that this, 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 the rationale of 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 so uncertain, 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 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.