The Foundations of Morality

CHAPTER 24 Justice

1. Justice and Freedom

The key terms used by moral philosophers—“good,” “right,” “ought,” etc.—all seem to be indefinable except in other terms that already imply the same notion. Such a term is Justice. Ask the average man what he means by justice and he will probably reply that what is just is what is “equitable” or what is “fair.” To the Institutes of Justinian we owe the famous definition that justice is the constant and continual purpose which gives to everyone his own. But if we ask how we determine what is a man’s “own,” we are told that his own is what is “rightfully” his own, and if we ask how we are to determine what is rightfully his own, we are likely to be brought back to the answer that this is determined in accordance with the dictates of justice.

One difficulty is that the terms Justice and Just are used in many different senses in many different settings. As Roscoe Pound has written:

The problem is difficult, and perhaps the best procedure is to clear the ground by examining at least two famous definitions or formulas of justice to see whether they are satisfactory.

The first thing to be said about this is that it sounds much more like a formula for Liberty than a formula for Justice. And it does not appear, on examination, to be a very satisfactory formula for either. Interpreted literally, it implies that a thug should have the freedom to stand behind a street corner and hit everyone who rounds the corner on the head with a club provided he concedes the equal freedom of anybody else to do the same thing. If it be answered that such action would infringe the freedom of others to do the same thing because it would incapacitate them from doing so, the formula still seems to give a license for all sorts of mutual injuries and annoyances that are not actually crippling or fatal.

The curious fact is that (probably as a result of prior criticisms) Spencer recognized this objection and attempted to answer it:

But this is a strange defense. A philosopher cannot set forth an explicit formula, and then say that it does not mean exactly what it appears to mean, because it is intended to mean something else. What it “really” means and what it does not “really” mean must be explicitly embodied in the formula itself. If it is not, the formula must be restated, or another formula must be substituted that does in fact say what it is intended to say, no more and no less.

It is very doubtful, in fact, that any autonomous formula can be framed for either Liberty or Justice. Any satisfactory formula will be found to depend upon or to imply teleological or utilitist considerations. But before passing on to the justification of this conclusion, we must consider further the difficulties of any independent formula.

The difficulty is excellently summed up (if I may anticipate the discussion of Chapter 26) by Henry Sidgwick in connection with freedom:

2. The Golden Rule

Suppose we try a different formula altogether. The Golden Rule in its positive form enjoins one to “Do unto others as you would have others do unto you.” This is intended as much more than a formula of Justice; it is a formula of Benevolence. Even as such it raises many problems. I may wish my uncle to leave me his fortune. Should I, therefore, turn over my own wealth to my uncle? Even if we dismiss all such extreme interpretations, the Rule seems to ignore differences in preference and taste. You may wish your friend to give you a set of Shakespeare for Christmas. Should you, therefore, give him a set? He may prefer a case of whiskey. You may wish a girl to give you her love; but she may prefer not to have yours.

Most of these difficulties are avoided by the Golden Rule in its negative form (which also appears to be historically much older): “Do not do unto others,” as Confucius put it, “what you would not wish others to do unto you.” This is certainly a good practical rule of thumb both in ethics and in law. Its political utility is well explained by Bruno Leoni:

Yet though the negative form of the Golden Rule is a rough working formula of justice, it is not, any more than the positive form of the Rule, a precise guide that can be applied with complete literalness. A man may not like to be haled into court for nonpayment even of a just debt. But this does not mean that he should never sue anybody else to collect a just debt.

3. “Every One to Count for One”

One of the principal difficulties in the concept of justice is that, though almost everyone uses the word with assurance, its meaning varies widely in different contexts. At times it seems to call for Equality and at other times for Inequality. This is recognized at the beginning of a long discussion by Hastings Rashdall:

Though I find Rashdall’s subsequent discussion of Justice somewhat disappointing, the procedure he suggests, of examining “these two rival and prima facie inconsistent ideals” of Justice, cannot fail to be enlightening, so I propose to follow him a little further.

Let us return to Rashdall’s contention that the Benthamite maxim could not possibly have been established by experience but must rest upon “an a priori judgment.” This is the contention not only of Rashdall, but of many other ethical writers. It is found, for example, even in Herbert Spencer:

Now I think it can be shown that this principle is not “intuitive” or a priori, but was developed out of human experience. It is the ethical parallel of the juridical principle of equality before the law. If this principle is intuitive or a priori, it would become enormously difficult to explain why moral and legal philosophy took so long to get around to recognizing it, or why it is still so difficult to formulate the principle with satisfactory precision. In examining this question we shall be incidentally examining the whole problem of intuitionism in ethics.

Bentham, of course, did not invent or discover the principle. He merely gave explicit verbal formulation to a principle already implicit in existing social customs, conventions, tacit rules and understandings, and working arrangements. How did such tacit rules and arrangements come into being?

And such a modus vivendi of rules and division becomes more and more likely as we expand our imaginary society to three, four, five or n persons. For then no individual will be strong enough to grab for himself what the rest regard as an excessive share, and there will grow up a tacit and even an explicit set of rules embodied in laws which will force equality of consideration and “fairness” in “ownership” or “distribution” simply because this will be recognized as the best if not the only way of minimizing disputes and of keeping the peace.

But suppose, coming back to our minimum society of two, that A is much stronger than B? Then A may try to grab everything for himself, to let B starve, or even to kill her. Then that society is over and sets no precedent. But if, as is more likely and more frequent, A recognizes that he needs or prefers B’s company and cooperation, he will have to release to B at least enough to assure the continuance of that cooperation, and, in proportion as he is wise, he will release enough to maximize that cooperation. This means that it is in A’s interest to maximize the incentives of B as it is in B’s interest to maximize those of A. And this also is true as we enlarge our imaginary society. No matter how unequal the respective members are in talents or abilities, it is in the interest of each that the contributions of all the others should be maximized. And each will eventually discover (after perhaps having tried slaughter, robbery, pillage, slavery, coercion, chicanery, or exploitation) that the best way to assure this maximum contribution by others is to provide those others with maximum incentives.

Let us, at the risk of excessive repetition, state this in another way. The “Benthamite” rule, “Every one to count for one and no one to count for more than one,” is merely another way of stating the rule of equality before the law. It is not an “axiom” in the sense that its truth is immediately self-evident or that a contrary rule is inconceivable or self-contradictory. It is not based, as Spencer and Sidgwick and Rashdall seemed to assume, on an “intuition.” It evolved because it was the only rule on which it was possible to secure agreement. It was, in origin, empirically determined. It doubtless developed gradually out of thousands of decisions by courts and tribunals. Its acceptance was, at the beginning, ad hoc in particular cases. It was vague, not definite; implied, not explicit. It was not at first consciously generalized. When generalized, in fact, it is still resisted by some writers. The rule was established in thousands of legal decisions and millions of private agreements and understandings because it was the only rule that could peaceably resolve disputes. Disputants or acting individuals came to accept it for much the same reasons that the impartial spectator now accepts it. It is now a rule that is basic to a thousand other rules.

Here we begin to glimpse the origins of our modern concept of justice both in the economic and in the legal and moral realm. The concepts of equality before the law, and equality of consideration, develop because the majority see the danger to themselves, as well as to the public peace, of more arbitrary or discriminatory rules.

And here we see, also, the reconciliation of the two apparently inconsistent rules of equality of consideration and inequality of rewards for inequality of contribution, that puzzled Rashdall in his search for some absolute rule of Justice. For the secret of both of these apparently inconsistent rules is that they tend to preserve the public peace, to satisfy most individuals, and to maximize the incentives of each for production and social cooperation.

4. Rules to Promote Cooperation

Now if we adopt this explanation, we recognize that Justice is not the ultimate ethical end, existing purely for its own sake, but is primarily a means, and even a means to a means. Justice and Freedom are the great means to the promotion of Social Cooperation, which in turn is the great means to the realization of each individual’s ends and therefore to the realization of the ends of “society.”

The subordination of Justice to a “mere” means, however important that means is regarded to be, may come as a shock to many moral philosophers, who. have been accustomed to regard it as the supreme ethical end, at least in the social field. The extreme form of this view is epitomized in the famous phrase: fiat justitia, ruat caelum, or even fiat justitia, pereat mundus. Let justice be done though the heavens fall, let justice be done even if it destroys the world. Common sense draws back from any such frightful conclusion. But the answer to such slogans is not that we should be satisfied with a little less than Absolute Justice, in order to hold things together; the answer is that there is something wrong in the conception of justice embodied in such slogans. Justice was made for man, not man for justice.

Now if we want to decide the relative claims of Happiness and Justice as the ultimate ethical goal we can hardly do better than adopt the same type of argument that Spencer himself used in the Data of Ethics (§ 15) when ridiculing Carlyle’s attempt to substitute “blessedness” for happiness as the end of mankind. Are Happiness and Justice antithetical? Then would we prefer more Justice at the cost of less Happiness and of more pain and misery? Would we fight hard and persistently for more Justice even though we knew this would have no effect whatever in increasing Happiness or reducing Misery? Or would we not be tempted to insist on an actual reduction of Justice if we found that to reduce Justice was the best means of reducing misery and increasing Happiness? Which would we prefer: Happiness without Justice or Justice without Happiness?

It is obvious that to treat Justice as an alternative to Happiness, or as preferable to Happiness, gets us into absurd contradictions. Once we accept Justice as a means to the increase as well as the “better distribution” of Happiness, however, these contradictions disappear.

One could apply the same method in deciding between Justice and Social Cooperation as end or means. Social Cooperation is the great means of maximizing the happiness and well-being of each and therefore of all; and Justice is the name we give to the set of rules, relationships, and arrangements that do most to promote voluntary Social Cooperation. The most just rules are those rules governing distribution, ownership, rewards, and penalties that, while minimizing the temptations to antisocial behavior, maximize the encouragements and incentives to effort, production, and mutual helpfulness.

I have in this chapter several times criticized some of Herbert Spencer’s ideas regarding Justice; but it would be unfair as well as ungenerous not to pay tribute to one of his greatest contributions to the subject. It is strange, in fact, that his definition and concept finally went wrong after they came so close to being right. For I find in Spencer a clearer anticipation of the central importance of Social Cooperation as the great means to all our ends than in any other writer up to his time. He again and again uses the phrase. Already in the Data of Ethics, published in 1879, we find him writing:

This is an isolated reference. But in the section on Justice, which did not appear until 1891, and was embodied in Volume II of The Principles of Ethics, we find Spencer repeatedly re-turning to the phrase and the concept: “Active co-operation” (p. 11). “The a priori condition to harmonious cooperation comes to be tacitly recognized as something like a law” (p. 13). “The advantages of co-operation can be had only by conformity to certain requirements which association imposes” (p. 20). “This pro-altruistic sentiment of justice serves temporarily to cause respect for one another’s claims, and so to make social co-operation possible” (p. 31). “As fast as voluntary co-operation which characterizes the industrial type of society, becomes more general than compulsory cooperation which characterizes the militant type of society” (p. 33). “The equality concerns the mutually-limited spheres of action which must be maintained if associated men are to co-operate harmoniously. . . . But here we have only to do with those claims and those limits which have to be maintained as conditions to harmonious co-operation” (p. 43). “Amicable social cooperation” (p. 56). “Peaceful cooperation” (p. 61).

How did it happen, after coming so near to the truth in his preliminary argument, that Spencer ended by offering, not an adequate explanation of the nature and purpose of Justice, but an (unsatisfactory) formula for Freedom? The reason, I think, is that, in spite of his new insights, he could not bring himself to abandon the chief concepts and conclusions at which he had arrived in his Social Statics in 1850.

Before we leave this subject, it will be profitable to return for a moment to the slogan: fiat justitia, ruat caelum. It is extravagant and absurd, but there is a grain of truth in it. We should not lightly abandon the established rules of equity, fairness, and justice in a particular case because we may feel that in that particular case their application may do more harm than good. For the established rules of justice must have a certain sanctity or near-sanctity. They are the product of mankind’s reason applied to its accumulated experience. They are to be tested by their long-run consequences in the over-whelming majority of cases rather than by their short-run consequences in particular cases. The dangers of breaking an established rule of justice or equity in a particular case are not to be underestimated. The harm that the strict application of these rules may do in particular cases is enormously less than the harm that would follow from applying the rules discriminately or capriciously, from making constant exceptions in the alleged interest of the “merits of the particular case.”

So, to come back once more to fiat justitia, ruat caelum, the demand that “justice be done, though the heavens fall” is indeed preposterous; but it is not preposterous to demand—on the contrary, it is essential to demand—that justice be done (i.e., that the established rules of justice be applied) even though it causes some temporary inconvenience or regrettable result in this or that particular case.

5. Justice as a Means

That justice is primarily a means to social cooperation, that social cooperation is primarily a means to promote the maximum happiness and well-being of each and all, does not reduce the importance of either justice or social cooperation. For both are the necessary means, the indispensable means to the desired goal. And therefore both of them are to be valued and cherished as ends-in-themselves. For a means can also be an end, if not the ultimate end. It can even seem to form an integral part of the ultimate end. The happiness and wellbeing of men simply cannot be achieved, and hardly imagined, without Justice and Social Cooperation.

Among the older writers the one who seems to me, second only to Hume, to have most clearly recognized the true basis, nature, and importance of Justice is John Stuart Mill. His discussion occurs in Chapter V (the final chapter) of his essay on Utilitarianism. It is probably the excellence of this section that is responsible for that essay’s high reputation and continued appeal, in spite of some inconsistencies and logical weaknesses in the earlier chapters. I cannot refrain from quoting a page or two from this chapter, “On the Connection Between Justice and Utility”:

While I dispute the pretensions of any theory which sets up an imaginary standard of justice not grounded on utility, I account the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality. Justice is a name for certain classes of moral rules which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life; and the notion which we have found to be of the essence of the idea of justice—that of a right residing in an individual—implies and testifies to this more binding obligation.