Suppose I am to divide an apple between my two children—two children, two pieces—this is an analysis of the situation which is obvious and may well be called the analytic activity of reason. But shall I give to each an equal share on the ground that both are equally my children or shall I reason that as John is older or larger or hungrier or mentally keener or more generous or is a male, he shall have a larger piece than Jane? To settle this it may be said that we ought to see whether there is any connection between the size of the piece and the particular quality of John which is considered, or that by a somewhat different use of reason we should look at the whole situation and see how we shall best promote family harmony and mutual affection. To settle the first of these problems, that of the connection between the size of the piece and the size of the hunger or the sex of the child, is seemingly again a question of analysis, of finding identical units, but a moment's thought shows that the case is not so simple; that the larger child should have the larger piece is by no means self-evident. This is in principle doubtless the logic, to him that hath shall be given. It is the logic of the survival of the strong, but over against that the moral consciousness has always set another logic which says that the smaller child should have the larger piece if thereby intelligent sympathy can contribute toward evening up the lot of the smaller. Now it is precisely this attitude of the moral consciousness which is not suggested by the term reason, for it is quite different from the analytic and identifying activity. This analytical and identifying activity may very well rule out of court the hypothesis that I should give John the larger piece because he has already eaten too much or because he has just found a penny or because he has red hair; it has undoubtedly helped in abolishing such practices as that of testing innocence by the ordeal. But before the crucial question of justice which divides modern society, namely, whether we shall lay emphasis upon adjustment of rewards to previous abilities, habits, possessions, character, or shall lay stress upon needs, and the possibility of bringing about a greater measure of equality, the doctrine which would find its standard in an a priori reason is helpless.
If we look at the second test suggested, namely, that of considering the situation as a whole with a view to the harmony of the children and the mutual affection within the family, there can be even less question that this is no mere logical problem of the individuals in a logical genus. It is the social problem of individuals who have feelings and emotions as well as thought and will. The problem of distributing the apple fairly is then a complex in which at least the following processes enter. (1) Analysis of the situation to show all the relevant factors with the full bearing of each; (2) putting yourself in the place of each one to be considered and experiencing to the full the claims, the difficulties and the purposes of each person involved; (3) considering all of these as members of the situation so that no individual is given rights or allowed claims except in so far as he represents a point of view which is comprehensive and sympathetic. This I take it is the force of President Wilson's utterance which has commanded such wide acceptance: "America asks nothing for herself except what she has a right to ask in the name of humanity." Kant aimed to express a high and democratic ideal of justice in his doctrine that we should treat every rational being as end. The defect in his statement is that the rational process as such has never treated and so far as can be foreseen never will treat human beings as ends. To treat a human being as an end it is necessary to put oneself into his place in his whole nature and not simply in his universalizing, and legislative aspects: Kant's principle is profound and noble, but his label for it is misleading and leaves a door open for appalling disregard of other people's feelings, sympathies, and moral sentiments, as Professor Dewey has indicated in his recent lectures on "German Philosophy and Politics."
The term "reasonable," which is frequently used in law and common life as a criterion of right, seems to imply that reason is a standard. As already stated, common life understands by the reasonable man one who not only uses his own thinking powers but is willing to listen to reason as presented by some one else. He makes allowance for frailties in human nature. To be reasonable means, very nearly, taking into account all factors of the case not only as I see them but as men of varying capacities and interests regard them. The type of the "unreasonable" employer is the man who refuses to talk over things with the laborers; to put himself in their place; or to look at matters from the point of view of society as a whole.
Just as little does the term reasonable as used in law permit a purely intellectualistic view of the process or an a priori standard. The question as to what is reasonable care or a reasonable price is often declared to be a matter not for the court but for the jury to decide, i.e., it is not to be deduced from any settled principle but is a question of what the average thoughtful man, who considers other people as well as himself, would do under the circumstances. A glance at some of the judicial definitions of such phrases as "reasonable care," "reasonable doubt," "reasonable law," as brought together in Words and Phrases Judicially Defined, illustrates this view. We get a picture not of any definite standard but of such a process as we have described in our analysis, namely, a process into which the existing social tradition, the mutual adjustments of a changing society and the intelligent consideration of all facts, enter. The courts have variously defined the reasonable (1) as the customary, or ordinary, or legal, or (2) as according with the existing state of knowledge in some special field, or (3) as proceeding on due consideration of all the facts, or (4) as offering sufficient basis for action. For example, (1) reasonable care means "according to the usages, habits, and ordinary risks of the business," (2) "surgeons should keep up with the latest advances in medical science," (3) a reasonable price "is such a price as the jury would under all the circumstances decide to be reasonable." "If, after an impartial comparison and consideration the jury can say candidly they are not satisfied with the defendant's guilt they have a reasonable doubt." Under (4) falls one of various definitions of "beyond reasonable doubt." "The evidence must be such as to produce in the minds of prudent men such certainty that they would act without hesitation in their own most important affairs." There is evidently ground for the statement of one judge that "reasonable" (he was speaking the phrase "reasonable care," but his words would seem to apply to other cases) "cannot be measured by any fixed or inflexible standard." Professor Freund characterizes "reasonable" as "the negation of precision." In the development of judicial interpretation as applied to the Sherman Law the tendency is to hold that the "rule of reason" will regard as forbidden by the statute (a) such combinations as have historically been prohibited and (b) such as seem to work some definite injury.
III
The above view of the function of intelligence, and of the synthetic character of the conscious process may be further defined in certain aspects by comparison with the view of Professor Fite, who likewise develops the significance of consciousness and particularly of intelligence for our ethical concepts and social program.
Professor Fite insists that in contrast with the "functional psychology" which would make consciousness merely a means to the preservation of the organic individual in mechanical working order, the whole value of life from the standpoint of the conscious agent consists in its being conscious. Creative moments in which there is complete conscious control of materials and technique represent high and unique individuality. Extension of range of consciousness makes the agent "a larger and more inclusive being," for he is living in the future and past as well as in the present. Consciousness means that a new and original force is inserted into the economy of the social and the physical world."[78] On the basis of the importance of consciousness Professor Fite would ground his justification of rights, his conception of justice, and his social program. The individual derives his rights simply from the fact that he knows what he is doing, hence as individuals differ in intelligence they differ in rights. The problem of justice is that of according to each a degree of recognition proportioned to his intelligence, that is, treat others as ends so far as they are intelligent; so far as they are ignorant treat them as means.[79] "The conscious individual when dealing with other conscious individuals will take account of their aims, as of other factors in his situation. This will involve 'adjustment,' but not abandonment of ends, i.e., self-sacrifice. Obligation to consider these ends of others is based on 'the same logic that binds me to get out of the way of an approaching train.'"[80]
The point in which the conception of rights and justice and the implied social program advocated in this paper differs as I view it from that of Professor Fite is briefly this. I regard both the individual and his rights as essentially synthetic and in constant process of reconstruction. Therefore what is due to any individual at a moment is not measured by his present stage of consciousness. It is measured rather by his possibilities than his actualities. This does not mean that the actual is to be ignored, but it does mean that if we take our stand upon the actual we are committed to a program with little place for imagination, with an emphasis all on the side of giving people what they deserve rather than of making them capable of deserving more. Professor Fite's position I regard as conceiving consciousness itself too largely in the category of the identical and the static rather than in the more "conscious" categories of constant reconstruction. When by virtue of consciousness you conceive new ends in addition to your former particular ideas of present good the problem is, he says, "to secure perfect fulfilment of each of them." The "usefulness" or "advantage" or "profitableness" of entering into social relations is the central category for measuring their value and their obligation.
Now the conception of securing perfect fulfilment of all one's aims by means of society rather than of putting one's own aims into the process for reciprocal modification and adjustment with the aims of others and of the new social whole involves a view of these ends as fixed, an essentially mechanical view. The same is the implication in considering society from the point of view of use and profit. As previously suggested these economic terms apply appropriately to things rather than to intrinsic values. To consider the uses of a fellow-being is to measure him in terms of some other end than his own intrinsic personal worth. To consider family life or society as profitable implies in ordinary language that such life is a means for securing ends already established rather than that it proves a good to the man who invests in it and thereby becomes himself a new individual with a new standard of values. Any object to be chosen must of course have value to the chooser. But it is one thing to be valued because it appeals to the actual chooser as already constituted; it is another thing to be valued because it appeals to a moving self which adventures upon this new unproved objective. This second is the distinction of taking an interest instead of being interested.
The second point of divergence is that Professor Fite lays greater stress upon the intellectual side of intelligence, whereas I should deny that the intellectual activity in itself is adequate to give either a basis for obligation or a method of dealing with the social problem. The primary fact, as Professor Fite well states it, is "that men are conscious beings and therefore know themselves and one another." It involves "a mutual recognition of personal ends." "That very knowledge which shows the individual himself shows him also that he is living in a world with other persons and other things whose mode of behavior and whose interests determine for him the conditions through which his own interests are to be realized."