Mises Daily Articles
The Impossibility of Just Judgment
[Chapter of Resist Not Evil (1903)]
Natural laws rule the world. It is a mistake to believe that the conduct of man is outside of natural law. The laws of being that move all the sentient world rule him. His first impulse is to preserve his life, and his next to preserve the species. Nature planted these instincts so deeply in his being that no civilization can root them up. To destroy these instincts would be to destroy the human race.
The first instinct of man is to preserve his life. To do this he must obtain the food, shelter, and raiment that enable him to live. His constant effort has been ever to get these at the smallest expenditure of time and strength. In a semicooperative state like ours the strongest choose the easiest, most remunerative occupations society can bestow. The less fortunate the next best, and so on down the scale. At the lowest place some are forced to abject toil, to practical slavery, to beggary, to crime.
Men would not steal sheep if they had land on which to raise mutton. Men would not explore their neighbors houses at dead of night, if their own were filled; and women would not sell their bodies if society left them any other fairly decent and pleasant way to live.
Even if punishment by the state could ever be justified, no man is wise enough or good enough to administer that punishment. It is the theory of the law that by means of its magical wisdom it is enabled to fix a code enumerating the acts that are sufficiently evil to constitute a crime; and for each of these enumerated acts it sets a penalty that it presumes is sufficiently severe and drastic to in some mysterious way atone for, excuse, absolve, or at least in some way make right, or certainly make better, the commission of the act.
Punishment must proceed on the theory that some are willfully bad, possessed of devils, and the bad must be punished when found bad, to prevent others who are bad from committing crime. Men could only be punished because they were willfully bad. If men are part good and part bad it will not do to punish. How could the law or courts fix the exact line as to how bad a man might be to deserve punishment, and how good to excuse it? Neither is it the act that should be punished, for it would be a hard and cruel and strange code of negative ethics that should say that a man should be punished for an evil act and not be rewarded for a virtuous one; and even judges might find difficulty in balancing the good and bad — and besides, does not the law in its wisdom say that an evil act shall be punished regardless of its consequences?
I may steal my neighbor's horse at night and return it in the morning. I am nonetheless a thief and my home is the prison. I may burglarize a safe and find it empty, but the crime has been completed and it deserves the penitentiary. In each case I deserve the penitentiary because my heart is bad. Thus the old theory is the only one on which the believer in punishment could rest for a moment, that some men are bad and some are good — at least some are bad.
The law is not concerned with the good. Its business is not rewarding, but punishment; not love but hate. How can human judgment determine what heart is bad? Men's lives are a strange mixture of thought, motive and action; an infinite mixture of good and evil, as it is given to finite man to know good and evil. No life is wholly good, and no life is wholly bad. A life of great virtues may here and there be interspersed with an evil act. The law picks out the evil and ignores the good. A life barren of real affirmative goodness may still be free from serious positive sin and thus escape the condemnation of man and his courts. The conduct that falls under the observation of others is not so much due to the goodness or badness of the heart as to the emotion or placidity of the nature.
In balancing the evil of a life against the good, no one can give the exact weight to each, for no two men weigh moral worth or turpitude with the same scales. Neither can a man's standing be determined until his life is done. Acts that seem evil, if left to develop character, are often the means of softening the heart, of developing love and charity and humanity, of really building up the moral worth of man.
But no person can be judged even by his conduct. Goodness and evil are both latent in man and this fact shows the evil of resistance and force. One may be intrinsically good and live a long life and still never be touched on the proper side to develop character and reveal to the world the real self. It requires circumstance, opportunity, and the proper appeal to develop the best in man, the same as to develop the worst in man. To judge the character of a human soul from one isolated act would be as impossible as to judge his physical health by testing his sight or hearing alone.
Every person's first impressions show how often these are really wrong, and how much they depend on the circumstances of time and place. To really judge another's character requires almost infinite knowledge, not of their acts alone, but of their thoughts and aspirations, their temptations, and environment, and every circumstance that makes up their lives.
But if the administration of punishment is to depend on the good or evil of the man, then each person must be judged from his own standpoint. One's merit or demerit depends not on what he does but on his purpose and intent, on his desire to do good or evil. In short, on the condition of his heart, which can only be told in part from his isolated acts.
Each person has his own rule of conduct and of life. The highest that can be done by any human soul is to live and strive according to his best conception of the highest life. To one man an act appears harmless which to another is a heinous crime. One man would blaspheme, but under no circumstances would beat a dog or kill a fly. One might commit larceny or even murder by the very strength of his love. Again, real character — merit and demerit — cannot be judged except in view of the capacity, the opportunity, the teaching of the life. No honest judgment of the worth of any soul can be measured except with full knowledge of every circumstance that made his life, and with this knowledge the man who would accuse would but condemn himself.
But even if every act of every life were open to the sight of man, this could furnish no guide to true character. The same temptation does not appeal alike to all. One man may not be tempted by strong drink and may never fall. Another with an appetite born in a remote ancestor may struggle manfully and fail. The temptation to take property by force does not appeal to one who can get it by inheritance or gift or fraud. The desire to kill never moves the soul of the placid man. To know what it means requires an intimate, infinite knowledge of every emotion of the soul, of every fiber of the body, and the understanding, not of how the temptations or inducements that he met would affect the judge, but how they would affect the man.
Science has determined a way to measure the height and the girth of an individual, to tell the color of his eyes and hair, to determine the shape and contour of his skull. It has not yet found a way to look beneath the skull and weigh the actions and responsibilities of that hidden, involved mystery — the human brain — or to look at the real man — the human soul — and judge whether the Infinite Maker made it white or black. If every man who passed an unjust judgment on his fellow should be condemned, how many judges would be found so vain and foolish as to review and condemn their Maker's work?
[Originally published as chapter 9 of Resist Not Evil (1903; 2011).]