Old-Fashioned Ethics and Common-Sense Metaphysics / With Some of Their Applications

by William Thomas Thornton

In the first place, we may see additional cause for distrusting the testimony which etymology has been supposed to record in favour of 'an origin of justice connected with the ordinances of law.'[12] That 'justum is a form of jussum, that which has been ordered:' that 'δἱκαιον comes directly from δἱκη, a suit of law:' that 'recht, from which came right and righteous, is synonymous with law,' is obvious enough; and it may not be out of place to add that in French the word droit has, with almost savage irony, been selected as the technical name, not of law simply, but of legal procedure with all its crookedness.[13] Still it seems more in the ordinary course of things to explain this linguistic identification of law with justice, by supposing conformity to justice to have been the primitive element in the formation of the notion of law, than by supposing 'conformity to law to have been the primitive element in the formation of the notion of justice.' It seems more probable that certain things were commanded because they were deemed just, than that they were deemed just because they were commanded. Even the ancient Hebrews, who 'believed their laws to be a direct emanation from the Supreme Being,' although, if asked why it was wrong to kill or steal, they might very likely have replied, 'Because theft and murder have been forbidden by God,' would still have acknowledged that it would be wrong to kill or steal, even if there had been no divine prohibition of the practices. And when we recollect that among 'other nations, and in particular the Greeks and Romans, who, knowing that their laws had been made by men, were not afraid to admit that men might make bad laws, ... the sentiment of justice came to be attached, not to all violations of law, but only to violations of such laws as ought to exist,' what had previously appeared probable is converted into certainty. Principles of justice to which law ought to conform cannot but have been anterior to law, and cannot have originated in law. And certainty on this point grows still more certain, assurance becomes doubly sure, when we reflect that, as was pointed out above, many things are just which, not only does not law command, but which justice barely tolerates, permitting them, indeed, to be done, but permitting them also to be reprobated.

Secondly, we may perceive that in mere justice there can be nothing praiseworthy. Justice is nothing more than abstinence from injustice, and no commendation can be due for not doing that the doing of which would deserve censure. Justice, if entitled to be ranked among the virtues at all, is at best only a negative virtue, as being the reverse of a vice. It is distinguished from all other moral qualities, as being the single and solitary one, compliance with whose behests is a duty which we owe to others. Of meekness, patience, temperance, fortitude, courtesy, whatever display it may for any reason be our duty to make, precisely that display justice requires us to make. Whatever of any one of these qualities justice does not exact from us, we may, without wronging any one, omit. We must not, indeed, incapacitate ourselves by tippling for our proper work, nor offend the eyes or ears of decenter folk by reeling obstreperously through the streets; but, if we take the precaution of retiring during an interval of leisure to our privy chamber, our making beasts of ourselves then and there to our heart's content, is our own concern, and nobody else's. No doubt, in doing this we should be doing very wrong, but still there is no contradiction in saying that we should have perfect right to do it, inasmuch as we should thereby be wronging no one but ourselves. Of another class of virtues—of all those which admit of being directly contrasted with justice, and which may for shortness' sake be without much inaccuracy comprehended under the general designation of generosity—it may, with literal truth, be said that the practice of them is no part of our duty to our neighbour. Provided we are careful to let every one have what, between him and us, are his bare dues, we may be selfish, mean, sordid to excess, without infringing any one else's rights, without the smallest dereliction of our duty to others. True, ethical writers are in the habit of speaking of 'duties of perfect and imperfect obligation,' but of these 'ill-chosen expressions,' as Mr. Mill,[14] with abundant reason, styles them, the latter, more particularly, is of a slovenliness which ought to have prevented its being used by any 'philosophic jurists.' What some of these mean by it is stated to be 'duties in which, though the act is obligatory, the particular occasions of performing it are left to our choice; as in the case of charity or beneficence, which we are indeed bound to practise, but not towards any defined person, or at any prescribed time.' But, according to this explanation, there are duties of which performance may not only be indefinitely postponed, even until a morrow that may never come, but of which performance at one time will warrant non-performance of them subsequently; so that, for instance, he who has behaved charitably on past occasions, may be uncharitable afterwards. 'In the more precise language' of other writers, we are told that while 'duties of perfect obligation are those duties in virtue of which a correlative right resides in some person or persons, duties of imperfect obligation are those which do not give birth to any right.' But, as where there is no right nothing can be due, it would seem from this that by duties of imperfect obligation are to be understood duties performance of which is not due. I hope to be pardoned for declining to accept these illusive distinctions as the boundaries which separate justice from the other components of morality. I neither understand how any obligation can be otherwise than perfect, nor do I recognise any duties whatever except those of justice. The main distinction between justice and all positive virtues I take to be that, whereas compliance with its behests is always imperative, compliance with theirs never is, but is always optional and discretionary. Of whatsoever is, for whatsoever reason, due, it is invariably justice, and justice alone, that demands payment or performance. Justice claims, and claims peremptorily, whatever is owing, but never puts forward the smallest pretension to anything that is not owing. But since whatever is owing plainly ought to be paid, and since justice never claims anything but what is owing, it is clear that there cannot be any merit in satisfying the claims of justice. Merit is possible only in actions which justice does not enjoin, but to which some other virtue exhorts.

From the main difference here pointed out, a minor collateral difference ramifies. Of whatever ought to be paid or done, payment or performance may be righteously enforced. Here I have the satisfaction of proceeding for a few steps side by side with Mr. Mill, although only, I am sorry to say, to part company again immediately. 'It is a part,' he says, 'of the notion of duty in every one of its forms that a person may rightfully be compelled to fulfil it. Duty is a thing which may be exacted from a person as one exacts a debt. Unless we think it may be exacted from him, we do not call it his duty.'[15] Now, since justice never asks for anything but what is due, never makes a requisition compliance with which is not a duty, it follows that all those persons to whom its requisitions are addressed may be rightfully compelled to comply with them, whereas, since what every other virtue requires is always something not due, compliance with its requisitions is never a duty, and cannot, except unrighteously, be enforced. This—viz., the rightfulness of using compulsion in aid of justice, as contrasted with the wrongfulness of resorting to it in aid of generosity, rather than the rightfulness of punishing breaches of the one and not of the other, seems to me the 'real turning-point of the distinction' between the two. For gross disregard of generosity, and indeed of any other virtue, may rightfully be punished, justice fully sanctioning the punishment although indicating also the nature of the penalty to be inflicted in each case, and restricting it within certain limits. Whoever plays the dog in the manger in a manger of his own, or makes an exclusively selfish use of his wealth or other advantages, refusing to do good to his neighbour at however little sacrifice on his own part it might be done, is not thereby infringing anybody else's rights, or thereby wronging any one else. He is only exercising his own undoubted rights. Still he is exercising them in a manner deserving of severe reprobation, and which witnesses of his conduct may justly punish by testifying to him the scorn, disgust, or indignation he has excited. It is no more than just that he should have his deserts and receive the punishment which has become his due. But justice, although permitting him to be punished for acting ungenerously, does not sanction his being compelled to make a show of acting generously. If his conduct had been unjust instead of simply ungenerous, no punishment would be adequate that did not force him to repair the evil he had done, or to do the good he had left undone. But the most flagrant breach of generosity, neither keeping nor taking away anything to which any one has a right, does nothing for which reparation can be due. It consists simply in a man's making an exclusively selfish use of what is exclusively his, and to make such use is one of the rights of property. Whoever exercises that odious right is justly punished by being shown how hateful we think him, but we must not, on pretence of justice, commit the injustice of depriving him of a right which is confessedly his.

It is not, then, by being rightfully liable to punishment that unjust differs from ungenerous conduct. The latter also ofttimes deserves and incurs punishment. But since there can be no merit in doing that the not doing of which would merit punishment, it may seem that, as in justice so likewise in generosity there cannot be anything positively meritorious. Neither in truth would there be if conduct were entitled to be styled generous simply as being the reverse of ungenerous. Generosity would then, like justice, be a virtue in no higher sense than that of not being a vice—a negative virtue if a virtue at all. But an action does not really deserve to be called generous unless what justice requires be exceeded by it in a degree more than sufficient to prevent the agent from deserving the imputation of meanness, nor even then unless the excess have been done from a purer motive than that of the hope of praise or other reward. An action is generous only in the proportion in which it involves self-sacrifice, voluntarily undergone for the benefit of others, without any view on the agent's part to further compensation than that derivable from the consciousness of making other people happy. In such voluntary and disinterested self-sacrifice consists the merit which is one chief characteristic of generosity as of most positive virtue, distinguishing it from justice, in which there is never a surrender of anything which one would be warranted in keeping, but merely a rendering of what belongs or is due to others. All conduct, not immoral, admits, as already more than once intimated, of a tripartite division, into that which may be rightfully enforced; that of which, though it be not due nor rightfully enforcible, neglect deserves to be and may justly be punished by reproaches; that which is neither due nor reasonably to be looked for, but which involves a voluntary surrender for the good of others of some good which one might without reproach keep for oneself. Of this last description is the only conduct in which there is any proper or positive virtue.

So much and such complex argumentation may not impossibly be deemed a good deal in excess of what is requisite to establish the conclusion to which it points, and which may be summed up in the following very simple propositions:—That, by a person's rights being understood the privilege of having or doing whatever no other person has a right to prevent his having or doing, justice consists of abstinence from conduct that would interfere with that privilege; that justice, therefore, is not dependent on extrinsic sanction, but arises spontaneously from the nature of things, and may almost indeed be said to spring necessarily from the meaning of words; and that its sole merit is exemption from the demerit that would attach to the withholding or withdrawing from any person anything belonging or due to that person. With all possible confidence, however, in the innate vigour of these propositions, I cannot suppose that they do not require all possible adventitious strengthening to be qualified to displace the doctrine to which they are opposed. I proceed, therefore, to test somewhat further the adequacy of the description of justice which they involve by confronting it with certain intricate problems, in presence of which the rival utilitarian definition will be found to be hopelessly at fault.

There are few subjects on which casuists have differed more widely than those of the legitimacy, and the proper measure of punishment. One thinks it unjust that anybody should be punished for the sake of example to others, or for any purpose except his own amelioration. A second replies that it is only for the sake of other people's good that an offender ought to be punished; for that, as for his own good, he himself should be left to decide what that is, and he is pretty sure not to decide that it is punishment. A third pronounces all punishment unjust, seeing that a man does not make himself criminal, but is made so by circumstances beyond his control—by his birth, parentage, education, and the temptations he meets with. Then, for the apportionment of punishment, some persons think there is no principle like that of the lex talionis—an eye for an eye, and a tooth for a tooth. Others that the penalty should be accurately proportioned to the immorality of the offence, by whatever standard that immorality be measured. Others, again, that punishment should be limited to the minimum necessary to deter from crime, quite irrespectively of the heinousness of the particular crime punished. Of the first three of these opinions, Mr. Mill observes that 'they are all extremely plausible, and that so long as the question is argued as one of justice simply, without going down to the principles that lie under justice, and are the source of its authority, he is unable to see how any one of the reasoners can be refuted. For every one of them builds upon rules of justice confessedly true—each is triumphant so long as he is not obliged to take into consideration any other maxims of justice than those he has selected, but that as soon as their several maxims are brought face to face, each disputant seems to have as much to say for himself as the others. No one can carry out his own notion of justice without trampling upon another equally binding.'[16] This view of the matter, however, can scarcely be regarded as satisfactory. If utilitarian notions of justice cannot be carried out without trampling each other down, they plainly should not be suffered to go at large, but should be relegated forthwith to the limbo of oblivion. But right cannot really be opposed to right; justice cannot really be inconsistent with itself: it never can be unjust to do what is just. Anti-utilitarian justice tolerates no such intestine disorder. The sole ground on which she sanctions punishment is the indispensableness of punishment for the reparation of injury. Whoever has suffered wrong has been subjected to invasion of some right, personal or proprietary, and is entitled to amends for the outrage; while the aggressor from whom the amends are due, ought to render them because he owes them, and because he ought, may, if necessary, be compelled, to render them. By the breach of right which he has committed, he has forfeited his own corresponding right, which may now be equitably set aside to whatever extent may be requisite for reparation of the evil he has done, one essential part of such reparation being adequate security against repetition of the wrong. So far as may be necessary for this purpose, punishment may equitably go, but no further. Genuine justice does not permit penal laws of human enactment to take into account the abstract turpitude of crime. That she reserves for divine cognisance, recollecting that 'Vengeance is mine, I will repay,' saith the Lord. Nor does she permit the smallest aggravation of punishment for the sake either of the offender's own mental improvement, or to discourage others from evil doing; neither, on the other hand, does she recognise any claim to abatement on the plea of an offender not having been able to help acting as he did. She would not, indeed, punish with death or with stripes an outrage committed by a lunatic or an idiot, partly because an outrage may be really less offensive for being committed unwittingly, inasmuch as it does not, at any rate, add insult to injury, and also because the corporal chastisement of a lunatic or an idiot could afford no reparation to the wounded feelings of a healthy mind. But so far as even an idiot or a lunatic was capable of making good the evil he had done by rendering what had in consequence become due, Anti-utilitarianism would require him equally with an erring saint or sage to make it, and equally, too, would subject him to whatever restraint might be deemed not more than sufficient to prevent his doing the same evil again. And of course she does not treat an offender of ordinary intelligence with indulgence which she would not show even to a lunatic, but exacts inexorably full reparation for what he has done, requiring him commonly to pay in kind so far as he can, and to make up with his person for any deficiency. Within the limits thus marked out she is well content that, with the one object which alone justifies punishment, other secondary objects with which justice has no concern, should be combined. She is well content that the same penal measures as are called for in order to compensate the injured party, should also subserve the reform of the criminal, and serve as general deterrents from crime. But she protests against the notion that these, or any other objects, can ever excuse the infringement of any ordinance of justice, or of any of even a criminal's rights which the criminal has not forfeited by crime. Justice, in short, in her penal, as in all her other arrangements, has but to adhere closely to the anti-utilitarian principles of rendering what is due, and of taking nothing that is not due, in order to steer clear of all the difficulties by which the ablest and most accomplished Utilitarians confess themselves staggered.

A second greatly vexed question is, 'whether, in a co-operative industrial association, it is just or not that talent or skill should give a title to superior remuneration? On the one side it is argued that all who do the best they can deserve equally well; ... that superior abilities have already advantages more than enough in the admiration they excite, the personal influence they command, and the internal satisfaction attending them; and that society is bound in justice rather to make compensation to the less favoured for this unmerited inequality of advantages, than to aggravate it. On the contrary side, that society, receiving more from the more efficient labourer, owes him a larger return; that a larger share of the joint result being actually his work, not to allow his claim to it is a sort of robbery; that if he is only to receive as much as others he can only be required to produce as much.'[17] 'Between these appeals to conflicting principles of justice,' Mr. Mill considers it impossible to decide. 'Justice,' he says, 'has in this case two sides to it, which it is impossible to bring into harmony, and the two disputants have chosen opposite sides; the one looks to what it is just that the individual should receive, the other to what it is just that the community should give. Each from his own point of view is unanswerable, and any choice between them, on grounds of justice, must be perfectly arbitrary. Social utility alone can decide the preference.'[18] The form of justice depicted with this Janus-like aspect can scarcely be the utilitarian, since, whoever, on utilitarian grounds, selects one of its sides, must perforce, on the same grounds, reject the other. Still, it is spoken of as genuine justice, wherefore that there is a justice independent of utility, would seem, after all, to be admitted by Utilitarians themselves. It is for them, however, to deal with the dilemma which their own ingenuity has thus devised. My only concern with the two-headed monster they have imagined is to protest against its being mistaken for the one sole species of justice which Anti-utilitarianism recognises, and which never presents any such double-faced appearance. In the case before us anti-utilitarian justice would decide with her accustomed ease between the two appellants. What she would look to would simply be that each co-operator should have his due. But how much soever she might declare an inferior workman to deserve for doing his best, she certainly would not allow his deserts to extend to participation in the fruits of the toil of those of his fellows who had done better than he. His having produced as much as he was able could not render due to him a share in the larger produce of others of superior capacity. Very possibly the superior workmen might agree that all should participate equally in the aggregate results of their joint labour. If so, well and good. For so liberal a concession they would deserve credit, and thanks would be due to them from those in whose favour it was made; but this of itself would be a conclusive proof, if any were wanting, that the concession was an act, not of justice, but of generosity, not of debt, but of grace.

Again, what discordance is there not as to the most equitable repartition of taxation! That all should be taxed in equal proportion to their pecuniary means; that taxation should be a graduated percentage on income, rising as income rose; that all, whether rich or poor, should be taxed alike; that all should pay equal capitation, but unequal property-tax—these are some out of many divergencies of opinion, and 'from these confusions' there is, Mr. Mill considers, 'no other mode of extrication than the utilitarian.'[19] But if there were really no other, there would, in fact, be none at all. For opinions differ scarcely less as to the utility, than as to the justice of each specified mode of taxation. There are quite as many persons who think it expedient as who think it equitable that people should be taxed either equally, or according to any of the suggested schemes of inequality. All the help that Utilitarianism here affords is, as usual, to leave every one to judge for himself which plan is the most advisable, and then to pronounce that to be the only moral plan. Anti-utilitarianism offers guidance of a very different sort. It wastes no time in seeking for an escape from confusion, for it allows no confusion to exist. It spurns equally the idea of different persons being required to pay different prices for equal quantities of the same thing, merely because some of them can afford to pay more, and that of their being all required to pay the same price for different quantities, merely because all are equally in need of the quantities they respectively obtain. It recognises only an imperfect analogy between a club or a mess to which no one need subscribe unless he likes, and a national community to whose funds every resident within its territory has no choice but to contribute; and while quite content that members of the one should be assessed at any rates to which they have spontaneously consented, it protests against the imposition on members of the other of burdens disproportioned to their several abilities. It denies that the shilling of a man who has but one in the world is of the same value to him because it is his all, as is to another an estate bringing him in 100,000l. a year, seeing that, if the former had his pocket picked, he might presently beg, borrow, or earn a second coin, whereas if the latter were dispossessed of his estate he might live to the age of Methusaleh without acquiring its equivalent. It perceives that a rich man, by receiving public protection for his property as well as his person, is relieved from an expense in maintaining private watchmen, which a poor man, with nothing but his carcass to defend, would have as little occasion as ability to incur; and it concludes that more being thus in effect given to the rich, more is due from him in return, and more, consequently, may be rightfully exacted.

We come, now, to a case that may well give to both Utilitarians and Anti-utilitarians pause—with this difference, however, that whereas it brings the former to an everlasting standstill, the latter may, after a while, go on complacently meditative, at least, if not rejoicing.

There are certain situations in which justice loses its authority. 'Thus, to save a life, it may be allowable ... to steal or take by force the necessary food or medicine, or kidnap and compel to officiate the only qualified medical practitioner.'[20] Wherefore, since to steal or to kidnap is essentially wrong, it may sometimes be allowable to do wrong. Mr. Mill's explanation of the paradox is, that 'there are particular cases in which some other social duty is so important as to overrule any one of the general maxims of justice; but that in such cases we usually say, not that justice must give way to some other moral principle, but that what is just in ordinary cases is, by reason of that other principle, not just in the particular case.'[21] I submit, however, that there is no real occasion to resort to any such 'useful accommodation of language,' in order to be 'saved from the necessity of admitting that there may be laudable injustice.' Let us never shrink from looking error in the face, for fear that, after she has slunk away abashed, some insoluble mystery may remain behind. It is better, at any rate, to be puzzled than deceived. There can be no doubt about theft being essentially unjust, and no skill in the arrangement of words can convert injustice into justice, or prevent injustice from being wrong. But when, as occasionally happens, the only choice open to us is between two immoral courses, it is morally incumbent on us to select the less immoral of the two. The wrong we decide upon does not, however, itself become smaller because it prevents a larger. A sworn bravo, who had taken in advance the wages of assassination, would sin less by breaking than by keeping faith with his employer; but, in either case, would sin. Abstinence from murder would not absolve him from the guilt of perjury. If, unless a loaf were stolen, a life would be lost, Anti-utilitarianism might pardon, but would scarcely applaud the theft. At all events it would not, like the rival doctrine in a similar strait, be reduced to double on itself, declaring that wrong had become right and black white, that the Ethiopian had changed his skin and the leopard his spots. It would still insist as positively as ever that to steal another man's bread cannot be just, however benevolent the purpose for which it is stolen.