Concerning Justice

by Lucilius A. Emery

At the outset I accept Herbert Spencer's theory that the idea of justice contains two sentiments, positive and negative; the one the sentiment of the individual that he has the right by nature to the unimpeded use of his faculties and to the benefits he acquires by such use; the other the consciousness that the presence of other individuals with similar claims of rights necessitates some limitation of his own claims. Out of those two sentiments is evolved, I think, the idea of justice or injustice according as they are or are not in equilibrium. They suggest the definition that justice is the equilibrium between the full freedom of the individual and the restrictions thereon necessary for the safety of society. The restraint of personal conduct within too narrow limits, the necessity of which cannot be made clear, excites resentment, stimulates angry passions, and hence causes unhappiness through a sense of injustice. Restraint within necessary limits only, the necessity of which can be seen, arouses no resentment; on the contrary, it satisfies the individual, favors harmonious cooperation, profits society and increases the happiness of its members, through the appreciation of that necessity.

But for the fixing of the boundary line between necessary and unnecessary restraints upon personal conduct, some other matters still are to be considered. I have said that man instinctively feels resentment at interference with whatever he may think is his right to do, or get, or keep. If this interference is from any of his fellow men his resentment is greater than when it is from natural forces. There arises the desire for vengeance, the desire to "get even,"—to use a common phrase,—by inflicting a corresponding injury on the offender. An eye for an eye, a tooth for a tooth, is instinctively demanded now as of old. If unable to inflict a corresponding injury there is the desire to inflict an equivalent injury. To paraphrase Bacon, revenge is justice running wild.

This instinct should be heeded by society. If it be necessary for its own preservation that society restrain this instinct, prohibit private vengeance, then it must itself provide for satisfaction of the instinct; the offender must be compelled to make full compensation or else be made to suffer in turn some deprivation of rights claimed by him that shall be commensurate with the offense. This should be done speedily and gratuitously so far as possible. Delay and expense cause resentment in the suitor for justice and so cause injustice. In doing this, society not only protects itself but it restores an equilibrium of rights disturbed by the offender. This restoration of equilibrium is an essential element in the concept of justice. Of course, as society progresses and human nature improves, this desire of the injured for vengeance on the offender becomes weaker. The virtues of mercy, forgiveness, or willingness to forego the demand for punishment, come into play and society is allowed to attempt to reform rather than to punish, or is allowed to pardon altogether. These virtues, however, are not part of the concept of justice. If the punishment seems inadequate, or the pardon seems undeserved, there remains, or is again excited, the feeling of resentment. The equilibrium is not restored.

Another sentiment or feeling is to be reckoned with in order to secure this equilibrium in society. The young, untrained child is impatient of all restraint. It is only by experience that he learns he must submit to restraint if he would have any sort of association with his fellows. He learns that he must submit to the rules of the game if he would have a part in the game. As he comes to maturity he becomes conscious that society must impose restraint upon him and hence feels no resentment against all restraint, as does the untrained child. He does, however, feel resentment if restraints are imposed upon him in his pursuit of happiness which are not imposed upon others in their pursuit. Similarly he feels resentment if exemptions from restraint are allowed some others and not allowed him also. Furthermore, he is quick to note any discrimination against himself and prone to imagine it when in fact there is none.

Almost as soon as the average child is placed with others under a common authority, as in a public school, he begins to complain of the teacher's partiality to other pupils. He will stay in no game where the rules operate unequally against him. He insists on an even chance with his fellow players. When later in life he engages in business he resents any favoritism shown by the government of his state or town to others in the same or a similar business. This feeling is especially noticeable in the matter of taxation. If one believes the taxes imposed by the government are unnecessarily heavy he may feel some resentment, but his resentment is much greater if he believes he is overtaxed in comparison with his fellows, that they are escaping their proportionate share of the burden, or that taxes are imposed on his products in order to favor the products of others, as when oleomargarine was taxed to handicap it in its competition with butter.

This feeling of resentment at inequality of restraints and burdens imposed and exemptions granted is not ignoble, is not a feeling to be suppressed or even concealed. It is far different from the feeling of envy. If I can only afford to ride in a trolley car I may envy the man who can afford to ride in a luxurious motor car and yet not feel wronged. But if I am excluded from a public street car to which he is admitted I have a different feeling, that of resentment. I may be perfectly willing that all others, rich or poor, shall use the streets to the full extent that I do, but if it be proposed that my use shall be limited in order that some others may for their private purposes have more than an equal use with me, my feeling is not one of envy but of indignation. So I can appreciate that if I wilfully or through carelessness injure another I should make full compensation, and hence can cheerfully submit to the law compelling me to do so; but if the law undertakes to exempt any other person from a similar liability, I feel a keen sense of wrong. Conversely, the most strict disciplinarian, the martinet even, if otherwise competent receives ready obedience and respect if it is seen that he treats alike, according to their merits, all subject to his authority. This feeling is natural. Nature is impartial in the application of its laws. It allows no exemption. Its fires burn the weak as well as the strong, the child as well as the man, the poor as well as the rich. One star differs from another star in glory, but no one of all the millions of stars is exempt from any of the laws set by nature for stars.

This feeling of right to impartiality of treatment had some faint expression in the Massachusetts "Body of Liberties" of 1641, in which it was declared that the liberties, etc., therein enumerated should be enjoyed "impartially" by all persons within the jurisdiction of the colony. It was more distinctly recognized in the Connecticut Declaration of 1818 and a part of the Connecticut Bill of Rights today, "That all men when they form a social compact are equal in rights and that no man or set of men are entitled to exclusive public emoluments or privileges from the community." Again it appears in the federal and some state constitutions in the provision against the granting of titles of nobility. It seems to be at least impliedly recognized in the XIVth amendment to the United States Constitution in the clause that no state "shall deny any person within its jurisdiction the equal protection of the laws," since "the equal protection of the laws" necessarily implies protection against unequal laws, laws favoring some at the expense of others or of the whole. If the state favors one more than another it does deny that other equal protection. I do not subscribe to the doctrine that "the greatest good of the greatest number" is to be sought. The only legitimate search is for the good of the whole number without discrimination for or against any one. This sentiment found expression in the once popular slogan, "Equal rights for all. Special privileges for none." I say once popular, for today it would seem not popular in practice. True, special privileges are still loudly denounced, but under the name of special exemptions, they are still demanded by those who denounce them most loudly.

It is not inequality of natural powers of body or mind, nor inequality in natural conditions, that excites this feeling of resentment I have noted. The man of feeble natural powers may envy him of strong natural powers, but he can see that society, that law, is not responsible for that inequality. If one finds himself from lack of natural ability or adaptiveness unable to accomplish what others of superior ability or adaptiveness easily accomplish, and hence he fails to receive the prize they so easily win, he may feel great disappointment and regret, but if honest with himself will not attribute his failure to the injustice of society.

It is not essential to the preservation of society and the race that such inequalities should be removed, that all men should be reduced to a dead level of capacity, that human nature should be ignored. It is strongly felt, however, that society should not itself create artificial inequalities, should not allow one man or set of men a liberty it will not allow to others, should not impose burdens on one man or set of men to be borne by them alone while others are exempt; or if it does undertake to do so it should be able to demonstrate that such artificial inequality is necessary for the safety of all. The intensity of this feeling against artificial inequalities is so great that men sometimes prefer equality before the law even to liberty. When the British ambassador said to Madam De Stael that Frenchmen had no more liberty after the Revolution than before, she answered that they had acquired equality before the law and they preferred that to more liberty. This sentiment was tersely and well expressed in the French Declaration of Rights of 1795. "Equality consists in this, that the law is the same for all whether it protects or punishes."

Of course, no assertion of rights can be carried to the extent of the dictum, "Fiat Justitia ruat Respublica," for if the state fall, all hopes of justice fall with it. When the alternative is the conquest of the particular society by invasion or its disorganization by rebellion or rioting or otherwise, some of its members must submit to the sacrifice of some or all of their rights. Nature will sacrifice individuals for the preservation of the race. Society must sometimes do the same. "Inter arma silent leges." But such times are exceptional and not within the scope of our inquiry.