Utilitarianism
by John Stuart Mill
(1863)
From: http://www.utilitarianism.com/mill1.htm
Chapter 1 Chapter
2 Chapter 3 Chapter
4 Chapter 5
Chapter 5
On the Connection between Justice and Utility
IN ALL ages of speculation, one of the strongest obstacles to the
reception of the doctrine that Utility or Happiness is the criterion
of right and wrong, has been drawn from the idea of justice. The
powerful sentiment, and apparently clear perception, which that
word recalls with a rapidity and certainty resembling an instinct,
have seemed to the majority of thinkers to point to an inherent
quality in things; to show that the just must have an existence
in Nature as something absolute, generically distinct from every
variety of the Expedient, and, in idea, opposed to it, though (as
is commonly acknowledged) never, in the long run, disjoined from
it in fact.
In the case of this, as of our other moral sentiments, there is
no necessary connection between the question of its origin, and
that of its binding force. That a feeling is bestowed on us by Nature,
does not necessarily legitimate all its promptings. The feeling
of justice might be a peculiar instinct, and might yet require,
like our other instincts, to be controlled and enlightened by a
higher reason. If we have intellectual instincts, leading us to
judge in a particular way, as well as animal instincts that prompt
us to act in a particular way, there is no necessity that the former
should be more infallible in their sphere than the latter in theirs:
it may as well happen that wrong judgments are occasionally suggested
by those, as wrong actions by these. But though it is one thing
to believe that we have natural feelings of justice, and another
to acknowledge them as an ultimate criterion of conduct, these two
opinions are very closely connected in point of fact. Mankind are
always predisposed to believe that any subjective feeling, not otherwise
accounted for, is a revelation of some objective reality. Our present
object is to determine whether the reality, to which the feeling
of justice corresponds, is one which needs any such special revelation;
whether the justice or injustice of an action is a thing intrinsically
peculiar, and distinct from all its other qualities, or only a combination
of certain of those qualities, presented under a peculiar aspect.
For the purpose of this inquiry it is practically important to consider
whether the feeling itself, of justice and injustice, is sui generis
like our sensations of colour and taste, or a derivative feeling,
formed by a combination of others. And this it is the more essential
to examine, as people are in general willing enough to allow, that
objectively the dictates of justice coincide with a part of the
field of General Expediency; but inasmuch as the subjective mental
feeling of justice is different from that which commonly attaches
to simple expediency, and, except in the extreme cases of the latter,
is far more imperative in its demands, people find it difficult
to see, in justice, only a particular kind or branch of general
utility, and think that its superior binding force requires a totally
different origin. To throw light upon this question, it is necessary
to attempt to ascertain what is the distinguishing character of
justice, or of injustice: what is the quality, or whether there
is any quality, attributed in common to all modes of conduct designated
as unjust (for justice, like many other moral attributes, is best
defined by its opposite), and distinguishing them from such modes
of conduct as are disapproved, but without having that particular
epithet of disapprobation applied to them. If in everything which
men are accustomed to characterise as just or unjust, some one common
attribute or collection of attributes is always present, we may
judge whether this particular attribute or combination of attributes
would be capable of gathering round it a sentiment of that peculiar
character and intensity by virtue of the general laws of our emotional
constitution, or whether the sentiment is inexplicable, and requires
to be regarded as a special provision of Nature. If we find the
former to be the case, we shall, in resolving this question, have
resolved also the main problem: if the latter, we shall have to
seek for some other mode of investigating it.
To find the common attributes of a variety of objects, it is necessary
to begin by surveying the objects themselves in the concrete. Let
us therefore advert successively to the various modes of action,
and arrangements of human affairs, which are classed, by universal
or widely spread opinion, as Just or as Unjust. The things well
known to excite the sentiments associated with those names are of
a very multifarious character. I shall pass them rapidly in review,
without studying any particular arrangement.
In the first place, it is mostly considered unjust to deprive any
one of his personal liberty, his property, or any other thing which
belongs to him by law. Here, therefore, is one instance of the application
of the terms just and unjust in a perfectly definite sense, namely,
that it is just to respect, unjust to violate, the legal rights
of any one. But this judgment admits of several exceptions, arising
from the other forms in which the notions of justice and injustice
present themselves. For example, the person who suffers the deprivation
may (as the phrase is) have forfeited the rights which he is so
deprived of: a case to which we shall return presently. But also,
Secondly; the legal rights of which he is deprived, may be rights
which ought not to have belonged to him; in other words, the law
which confers on him these rights, may be a bad law. When it is
so, or when (which is the same thing for our purpose) it is supposed
to be so, opinions will differ as to the justice or injustice of
infringing it. Some maintain that no law, however bad, ought to
be disobeyed by an individual citizen; that his opposition to it,
if shown at all, should only be shown in endeavouring to get it
altered by competent authority. This opinion (which condemns many
of the most illustrious benefactors of mankind, and would often
protect pernicious institutions against the only weapons which,
in the state of things existing at the time, have any chance of
succeeding against them) is defended, by those who hold it, on grounds
of expediency; principally on that of the importance, to the common
interest of mankind, of maintaining inviolate the sentiment of submission
to law. Other persons, again, hold the directly contrary opinion,
that any law, judged to be bad, may blamelessly be disobeyed, even
though it be not judged to be unjust, but only inexpedient; while
others would confine the licence of disobedience to the case of
unjust laws: but again, some say, that all laws which are inexpedient
are unjust; since every law imposes some restriction on the natural
liberty of mankind, which restriction is an injustice, unless legitimated
by tending to their good. Among these diversities of opinion, it
seems to be universally admitted that there may be unjust laws,
and that law, consequently, is not the ultimate criterion of justice,
but may give to one person a benefit, or impose on another an evil,
which justice condemns. When, however, a law is thought to be unjust,
it seems always to be regarded as being so in the same way in which
a breach of law is unjust, namely, by infringing somebody's right;
which, as it cannot in this case be a legal right, receives a different
appellation, and is called a moral right. We may say, therefore,
that a second case of injustice consists in taking or withholding
from any person that to which he has a moral right. Thirdly, it
is universally considered just that each person should obtain that
(whether good or evil) which he deserves; and unjust that he should
obtain a good, or be made to undergo an evil, which he does not
deserve. This is, perhaps, the clearest and most emphatic form in
which the idea of justice is conceived by the general mind. As it
involves the notion of desert, the question arises, what constitutes
desert? Speaking in a general way, a person is understood to deserve
good if he does right, evil if he does wrong; and in a more particular
sense, to deserve good from those to whom he does or has done good,
and evil from those to whom he does or has done evil. The precept
of returning good for evil has never been regarded as a case of
the fulfilment of justice, but as one in which the claims of justice
are waived, in obedience to other considerations.
Fourthly, it is confessedly unjust to break faith with any one:
to violate an engagement, either express or implied, or disappoint
expectations raised by our conduct, at least if we have raised those
expectations knowingly and voluntarily. Like the other obligations
of justice already spoken of, this one is not regarded as absolute,
but as capable of being overruled by a stronger obligation of justice
on the other side; or by such conduct on the part of the person
concerned as is deemed to absolve us from our obligation to him,
and to constitute a forfeiture of the benefit which he has been
led to expect.
Fifthly, it is, by universal admission, inconsistent with justice
to be partial; to show favour or preference to one person over another,
in matters to which favour and preference do not properly apply.
Impartiality, however, does not seem to be regarded as a duty in
itself, but rather as instrumental to some other duty; for it is
admitted that favour and preference are not always censurable, and
indeed the cases in which they are condemned are rather the exception
than the rule. A person would be more likely to be blamed than applauded
for giving his family or friends no superiority in good offices
over strangers, when he could do so without violating any other
duty; and no one thinks it unjust to seek one person in preference
to another as a friend, connection, or companion. Impartiality where
rights are concerned is of course obligatory, but this is involved
in the more general obligation of giving to every one his right.
A tribunal, for example, must be impartial, because it is bound
to award, without regard to any other consideration, a disputed
object to the one of two parties who has the right to it. There
are other cases in which impartiality means, being solely influenced
by desert; as with those who, in the capacity of judges, preceptors,
or parents, administer reward and punishment as such. There are
cases, again, in which it means, being solely influenced by consideration
for the public interest; as in making a selection among candidates
for a government employment. Impartiality, in short, as an obligation
of justice, may be said to mean, being exclusively influenced by
the considerations which it is supposed ought to influence the particular
case in hand; and resisting the solicitation of any motives which
prompt to conduct different from what those considerations would
dictate.
Nearly allied to the idea of impartiality is that of equality;
which often enters as a component part both into the conception
of justice and into the practice of it, and, in the eyes of many
persons, constitutes its essence. But in this, still more than in
any other case, the notion of justice varies in different persons,
and always conforms in its variations to their notion of utility.
Each person maintains that equality is the dictate of justice, except
where he thinks that expediency requires inequality. The justice
of giving equal protection to the rights of all, is maintained by
those who support the most outrageous inequality in the rights themselves.
Even in slave countries it is theoretically admitted that the rights
of the slave, such as they are, ought to be as sacred as those of
the master; and that a tribunal which fails to enforce them with
equal strictness is wanting in justice; while, at the same time,
institutions which leave to the slave scarcely any rights to enforce,
are not deemed unjust, because they are not deemed inexpedient.
Those who think that utility requires distinctions of rank, do not
consider it unjust that riches and social privileges should be unequally
dispensed; but those who think this inequality inexpedient, think
it unjust also. Whoever thinks that government is necessary, sees
no injustice in as much inequality as is constituted by giving to
the magistrate powers not granted to other people. Even among those
who hold levelling doctrines, there are as many questions of justice
as there are differences of opinion about expediency. Some Communists
consider it unjust that the produce of the labour of the community
should be shared on any other principle than that of exact equality;
others think it just that those should receive most whose wants
are greatest; while others hold that those who work harder, or who
produce more, or whose services are more valuable to the community,
may justly claim a larger quota in the division of the produce.
And the sense of natural justice may be plausibly appealed to in
behalf of every one of these opinions.
Among so many diverse applications of the term justice, which yet
is not regarded as ambiguous, it is a matter of some difficulty
to seize the mental link which holds them together, and on which
the moral sentiment adhering to the term essentially depends. Perhaps,
in this embarrassment, some help may be derived from the history
of the word, as indicated by its etymology.
In most, if not in all, languages, the etymology of the word which
corresponds to Just, points distinctly to an origin connected with
the ordinances of law. Justum is a form of jussum, that which has
been ordered. Dikaion comes directly from dike, a suit at law. Recht,
from which came right and righteous, is synonymous with law. The
courts of justice, the administration of justice, are the courts
and the administration of law. La justice, in French, is the established
term for judicature. I am not committing the fallacy imputed with
some show of truth to Horne Tooke, of assuming that a word must
still continue to mean what it originally meant. Etymology is slight
evidence of what the idea now signified is, but the very best evidence
of how it sprang up. There can, I think, be no doubt that the idee
mere, the primitive element, in the formation of the notion of justice,
was conformity to law. It constituted the entire idea among the
Hebrews, up to the birth of Christianity; as might be expected in
the case of a people whose laws attempted to embrace all subjects
on which precepts were required, and who believed those laws to
be a direct emanation from the Supreme Being. But other nations,
and in particular the Greeks and Romans, who knew that their laws
had been made originally, and still continued to be made, by men,
were not afraid to admit that those men might make bad laws; might
do, by law, the same things, and from the same motives, which if
done by individuals without the sanction of law, would be called
unjust. And hence the sentiment of injustice came to be attached,
not to all violations of law, but only to violations of such laws
as ought to exist, including such as ought to exist, but do not;
and to laws themselves, if supposed to be contrary to what ought
to be law. In this manner the idea of law and of its injunctions
was still predominant in the notion of justice, even when the laws
actually in force ceased to be accepted as the standard of it.
It is true that mankind consider the idea of justice and its obligations
as applicable to many things which neither are, nor is it desired
that they should be, regulated by law. Nobody desires that laws
should interfere with the whole detail of private life; yet every
one allows that in all daily conduct a person may and does show
himself to be either just or unjust. But even here, the idea of
the breach of what ought to be law, still lingers in a modified
shape. It would always give us pleasure, and chime in with our feelings
of fitness, that acts which we deem unjust should be punished, though
we do not always think it expedient that this should be done by
the tribunals. We forego that gratification on account of incidental
inconveniences. We should be glad to see just conduct enforced and
injustice repressed, even in the minutest details, if we were not,
with reason, afraid of trusting the magistrate with so unlimited
an amount of power over individuals. When we think that a person
is bound in justice to do a thing, it is an ordinary form of language
to say, that he ought to be compelled to do it. We should be gratified
to see the obligation enforced by anybody who had the power. If
we see that its enforcement by law would be inexpedient, we lament
the impossibility, we consider the impunity given to injustice as
an evil, and strive to make amends for it by bringing a strong expression
of our own and the public disapprobation to bear upon the offender.
Thus the idea of legal constraint is still the generating idea of
the notion of justice, though undergoing several transformations
before that notion, as it exists in an advanced state of society,
becomes complete.
The above is, I think, a true account, as far as it goes, of the
origin and progressive growth of the idea of justice. But we must
observe, that it contains, as yet, nothing to distinguish that obligation
from moral obligation in general. For the truth is, that the idea
of penal sanction, which is the essence of law, enters not only
into the conception of injustice, but into that of any kind of wrong.
We do not call anything wrong, unless we mean to imply that a person
ought to be punished in some way or other for doing it; if not by
law, by the opinion of his fellow-creatures; if not by opinion,
by the reproaches of his own conscience. This seems the real turning
point of the distinction between morality and simple expediency.
It is a part 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 that it may be exacted from him, we do not call it his
duty. Reasons of prudence, or the interest of other people, may
militate against actually exacting it; but the person himself, it
is clearly understood, would not be entitled to complain. There
are other things, on the contrary, which we wish that people should
do, which we like or admire them for doing, perhaps dislike or despise
them for not doing, but yet admit that they are not bound to do;
it is not a case of moral obligation; we do not blame them, that
is, we do not think that they are proper objects of punishment.
How we come by these ideas of deserving and not deserving punishment,
will appear, perhaps, in the sequel; but I think there is no doubt
that this distinction lies at the bottom of the notions of right
and wrong; that we call any conduct wrong, or employ, instead, some
other term of dislike or disparagement, according as we think that
the person ought, or ought not, to be punished for it; and we say,
it would be right, to do so and so, or merely that it would be desirable
or laudable, according as we would wish to see the person whom it
concerns, compelled, or only persuaded and exhorted, to act in that
manner.*
[* See this point enforced and illustrated by Professor Bain, in
an admirable chapter (entitled "The Ethical Emotions, or the
Moral Sense"), of the second of the two treatises composing
his elaborate and profound work on the Mind.]
This, therefore, being the characteristic difference which marks
off, not justice, but morality in general, from the remaining provinces
of Expediency and Worthiness; the character is still to be sought
which distinguishes justice from other branches of morality. Now
it is known that ethical writers divide moral duties into two classes,
denoted by the ill-chosen expressions, duties of perfect and of
imperfect obligation; the latter being those 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 definite person,
nor at any prescribed time. In the more precise language of philosophic
jurists, 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 moral obligations which
do not give birth to any right. I think it will be found that this
distinction exactly coincides with that which exists between justice
and the other obligations of morality. In our survey of the various
popular acceptations of justice, the term appeared generally to
involve the idea of a personal right- a claim on the part of one
or more individuals, like that which the law gives when it confers
a proprietary or other legal right. Whether the injustice consists
in depriving a person of a possession, or in breaking faith with
him, or in treating him worse than he deserves, or worse than other
people who have no greater claims, in each case the supposition
implies two things- a wrong done, and some assignable person who
is wronged. Injustice may also be done by treating a person better
than others; but the wrong in this case is to his competitors, who
are also assignable persons.
It seems to me that this feature in the case- a right in some person,
correlative to the moral obligation- constitutes the specific difference
between justice, and generosity or beneficence. Justice implies
something which it is not only right to do, and wrong not to do,
but which some individual person can claim from us as his moral
right. No one has a moral right to our generosity or beneficence,
because we are not morally bound to practise those virtues towards
any given individual. And it will be found with respect to this,
as to every correct definition, that the instances which seem to
conflict with it are those which most confirm it. For if a moralist
attempts, as some have done, to make out that mankind generally,
though not any given individual, have a right to all the good we
can do them, he at once, by that thesis, includes generosity and
beneficence within the category of justice. He is obliged to say,
that our utmost exertions are due to our fellow creatures, thus
assimilating them to a debt; or that nothing less can be a sufficient
return for what society does for us, thus classing the case as one
of gratitute; both of which are acknowledged cases of justice. Wherever
there is right, the case is one of justice, and not of the virtue
of beneficence: and whoever does not place the distinction between
justice and morality in general, where we have now placed it, will
be found to make no distinction between them at all, but to merge
all morality in justice.
Having thus endeavoured to determine the distinctive elements which
enter into the composition of the idea of justice, we are ready
to enter on the inquiry, whether the feeling, which accompanies
the idea, is attached to it by a special dispensation of nature,
or whether it could have grown up, by any known laws, out of the
idea itself; and in particular, whether it can have originated in
considerations of general expediency.
I conceive that the sentiment itself does not arise from anything
which would commonly, or correctly, be termed an idea of expediency;
but that though the sentiment does not, whatever is moral in it
does.
We have seen that the two essential ingredients in the sentiment
of justice are, the desire to punish a person who has done harm,
and the knowledge or belief that there is some definite individual
or individuals to whom harm has been done.
Now it appears to me, that the desire to punish a person who has
done harm to some individual is a spontaneous outgrowth from two
sentiments, both in the highest degree natural, and which either
are or resemble instincts; the impulse of self-defence, and the
feeling of sympathy.
It is natural to resent, and to repel or retaliate, any harm done
or attempted against ourselves, or against those with whom we sympathise.
The origin of this sentiment it is not necessary here to discuss.
Whether it be an instinct or a result of intelligence, it is, we
know, common to all animal nature; for every animal tries to hurt
those who have hurt, or who it thinks are about to hurt, itself
or its young. Human beings, on this point, only differ from other
animals in two particulars. First, in being capable of sympathising,
not solely with their offspring, or, like some of the more noble
animals, with some superior animal who is kind to them, but with
all human, and even with all sentient, beings. Secondly, in having
a more developed intelligence, which gives a wider range to the
whole of their sentiments, whether self-regarding or sympathetic.
By virtue of his superior intelligence, even apart from his superior
range of sympathy, a human being is capable of apprehending a community
of interest between himself and the human society of which he forms
a part, such that any conduct which threatens the security of the
society generally, is threatening to his own, and calls forth his
instinct (if instinct it be) of self-defence. The same superiority
of intelligence joined to the power of sympathising with human beings
generally, enables him to attach himself to the collective idea
of his tribe, his country, or mankind, in such a manner that any
act hurtful to them, raises his instinct of sympathy, and urges
him to resistance.
The sentiment of justice, in that one of its elements which consists
of the desire to punish, is thus, I conceive, the natural feeling
of retaliation or vengeance, rendered by intellect and sympathy
applicable to those injuries, that is, to those hurts, which wound
us through, or in common with, society at large. This sentiment,
in itself, has nothing moral in it; what is moral is, the exclusive
subordination of it to the social sympathies, so as to wait on and
obey their call. For the natural feeling would make us resent indiscriminately
whatever any one does that is disagreeable to us; but when moralised
by the social feeling, it only acts in the directions conformable
to the general good: just persons resenting a hurt to society, though
not otherwise a hurt to themselves, and not resenting a hurt to
themselves, however painful, unless it be of the kind which society
has a common interest with them in the repression of.
It is no objection against this doctrine to say, that when we feel
our sentiment of justice outraged, we are not thinking of society
at large, or of any collective interest, but only of the individual
case. It is common enough certainly, though the reverse of commendable,
to feel resentment merely because we have suffered pain; but a person
whose resentment is really a moral feeling, that is, who considers
whether an act is blamable before he allows himself to resent it-
such a person, though he may not say expressly to himself that he
is standing up for the interest of society, certainly does feel
that he is asserting a rule which is for the benefit of others as
well as for his own. If he is not feeling this- if he is regarding
the act solely as it affects him individually- he is not consciously
just; he is not concerning himself about the justice of his actions.
This is admitted even by anti-utilitarian moralists. When Kant (as
before remarked) propounds as the fundamental principle of morals,
"So act, that thy rule of conduct might be adopted as a law
by all rational beings," he virtually acknowledges that the
interest of mankind collectively, or at least of mankind indiscriminately,
must be in the mind of the agent when conscientiously deciding on
the morality of the act. Otherwise he uses words without a meaning:
for, that a rule even of utter selfishness could not possibly be
adopted by all rational beings- that there is any insuperable obstacle
in the nature of things to its adoption- cannot be even plausibly
maintained. To give any meaning to Kant's principle, the sense put
upon it must be, that we ought to shape our conduct by a rule which
all rational beings might adopt with benefit to their collective
interest.
To recapitulate: the idea of justice supposes two things; a rule
of conduct, and a sentiment which sanctions the rule. The first
must be supposed common to all mankind, and intended for their good.
The other (the sentiment) is a desire that punishment may be suffered
by those who infringe the rule. There is involved, in addition,
the conception of some definite person who suffers by the infringement;
whose rights (to use the expression appropriated to the case) are
violated by it. And the sentiment of justice appears to me to be,
the animal desire to repel or retaliate a hurt or damage to oneself,
or to those with whom one sympathises, widened so as to include
all persons, by the human capacity of enlarged sympathy, and the
human conception of intelligent self-interest. From the latter elements,
the feeling derives its morality; from the former, its peculiar
impressiveness, and energy of self-assertion.
I have, throughout, treated the idea of a right residing in the
injured person, and violated by the injury, not as a separate element
in the composition of the idea and sentiment, but as one of the
forms in which the other two elements clothe themselves. These elements
are, a hurt to some assignable person or persons on the one hand,
and a demand for punishment on the other. An examination of our
own minds, I think, will show, that these two things include all
that we mean when we speak of violation of a right. When we call
anything a person's right, we mean that he has a valid claim on
society to protect him in the possession of it, either by the force
of law, or by that of education and opinion. If he has what we consider
a sufficient claim, on whatever account, to have something guaranteed
to him by society, we say that he has a right to it. If we desire
to prove that anything does not belong to him by right, we think
this done as soon as it is admitted that society ought not to take
measures for securing it to him, but should leave him to chance,
or to his own exertions. Thus, a person is said to have a right
to what he can earn in fair professional competition; because society
ought not to allow any other person to hinder him from endeavouring
to earn in that manner as much as he can. But he has not a right
to three hundred a-year, though he may happen to be earning it;
because society is not called on to provide that he shall earn that
sum. On the contrary, if he owns ten thousand pounds three per cent
stock, he has a right to three hundred a-year; because society has
come under an obligation to provide him with an income of that amount.
To have a right, then, is, I conceive, to have something which
society ought to defend me in the possession of. If the objector
goes on to ask, why it ought? I can give him no other reason than
general utility. If that expression does not seem to convey a sufficient
feeling of the strength of the obligation, nor to account for the
peculiar energy of the feeling, it is because there goes to the
composition of the sentiment, not a rational only, but also an animal
element, the thirst for retaliation; and this thirst derives its
intensity, as well as its moral justification, from the extraordinarily
important and impressive kind of utility which is concerned. The
interest involved is that of security, to every one's feelings the
most vital of all interests. All other earthly benefits are needed
by one person, not needed by another; and many of them can, if necessary,
be cheerfully foregone, or replaced by something else; but security
no human being can possibly do without on it we depend for all our
immunity from evil, and for the whole value of all and every good,
beyond the passing moment; since nothing but the gratification of
the instant could be of any worth to us, if we could be deprived
of anything the next instant by whoever was momentarily stronger
than ourselves. Now this most indispensable of all necessaries,
after physical nutriment, cannot be had, unless the machinery for
providing it is kept unintermittedly in active play. Our notion,
therefore, of the claim we have on our fellow-creatures to join
in making safe for us the very groundwork of our existence, gathers
feelings around it so much more intense than those concerned in
any of the more common cases of utility, that the difference in
degree (as is often the case in psychology) becomes a real difference
in kind. The claim assumes that character of absoluteness, that
apparent infinity, and incommensurability with all other considerations,
which constitute the distinction between the feeling of right and
wrong and that of ordinary expediency and inexpediency. The feelings
concerned are so powerful, and we count so positively on finding
a responsive feeling in others (all being alike interested), that
ought and should grow into must, and recognised indispensability
becomes a moral necessity, analogous to physical, and often not
inferior to it in binding force exhorted,
If the preceding analysis, or something resembling it, be not the
correct account of the notion of justice; if justice be totally
independent of utility, and be a standard per se, which the mind
can recognise by simple introspection of itself; it is hard to understand
why that internal oracle is so ambiguous, and why so many things
appear either just or unjust, according to the light in which they
are regarded.
We are continually informed that Utility is an uncertain standard,
which every different person interprets differently, and that there
is no safety but in the immutable, ineffaceable, and unmistakable
dictates of justice, which carry their evidence in themselves, and
are independent of the fluctuations of opinion. One would suppose
from this that on questions of justice there could be no controversy;
that if we take that for our rule, its application to any given
case could leave us in as little doubt as a mathematical demonstration.
So far is this from being the fact, that there is as much difference
of opinion, and as much discussion, about what is just, as about
what is useful to society. Not only have different nations and individuals
different notions of justice, but in the mind of one and the same
individual, justice is not some one rule, principle, or maxim, but
many, which do not always coincide in their dictates, and in choosing
between which, he is guided either by some extraneous standard,
or by his own personal predilections.
For instance, there are some who say, that it is unjust to punish
any one for the sake of example to others; that punishment is just,
only when intended for the good of the sufferer himself. Others
maintain the extreme reverse, contending that to punish persons
who have attained years of discretion, for their own benefit, is
despotism and injustice, since if the matter at issue is solely
their own good, no one has a right to control their own judgment
of it; but that they may justly be punished to prevent evil to others,
this being the exercise of the legitimate right of self-defence.
Mr. Owen, again, affirms that it is unjust to punish at all; for
the criminal did not make his own character; his education, and
the circumstances which surrounded him, have made him a criminal,
and for these he is not responsible. All these opinions are extremely
plausible; and so long as the question is argued as one of justice
simply, without going down to the principles which lie under justice
and are the source of its authority, I am unable to see how any
of these reasoners can be refuted. For in truth every one of the
three builds upon rules of justice confessedly true. The first appeals
to the acknowledged injustice of singling out an individual, and
making a sacrifice, without his consent, for other people's benefit.
The second relies on the acknowledged justice of self-defence, and
the admitted injustice of forcing one person to conform to another's
notions of what constitutes his good. The Owenite invokes the admitted
principle, that it is unjust to punish any one for what he cannot
help. Each is triumphant so long as he is not compelled to take
into consideration any other maxims of justice than the one he has
selected; but as soon as their several maxims are brought face to
face, each disputant seems to have exactly as much to say for himself
as the others. No one of them can carry out his own notion of justice
without trampling upon another equally binding.
These are difficulties; they have always been felt to be such;
and many devices have been invented to turn rather than to overcome
them. As a refuge from the last of the three, men imagined what
they called the freedom of the will; fancying that they could not
justify punishing a man whose will is in a thoroughly hateful state,
unless it be supposed to have come into that state through no influence
of anterior circumstances. To escape from the other difficulties,
a favourite contrivance has been the fiction of a contract, whereby
at some unknown period all the members of society engaged to obey
the laws, and consented to be punished for any disobedience to them,
thereby giving to their legislators the right, which it is assumed
they would not otherwise have had, of punishing them, either for
their own good or for that of society. This happy thought was considered
to get rid of the whole difficulty, and to legitimate the infliction
of punishment, in virtue of another received maxim of justice, Volenti
non fit injuria; that is not unjust which is done with the consent
of the person who is supposed to be hurt by it. I need hardly remark,
that even if the consent were not a mere fiction, this maxim is
not superior in authority to the others which it is brought in to
supersede. It is, on the contrary, an instructive specimen of the
loose and irregular manner in which supposed principles of justice
grow up. This particular one evidently came into use as a help to
the coarse exigencies of courts of law, which are sometimes obliged
to be content with very uncertain presumptions, on account of the
greater evils which would often arise from any attempt on their
part to cut finer. But even courts of law are not able to adhere
consistently to the maxim, for they allow voluntary engagements
to be set aside on the ground of fraud, and sometimes on that of
mere mistake or misinformation.
Again, when the legitimacy of inflicting punishment is admitted,
how many conflicting conceptions of justice come to light in discussing
the proper apportionment of punishments to offences. No rule on
the subject recommends itself so strongly to the primitive and spontaneous
sentiment of justice, as the bex talionis, an eye for an eye and
a tooth for a tooth. Though this principle of the Jewish and of
the Mahometan law has been generally abandoned in Europe as a practical
maxim, there is, I suspect, in most minds, a secret hankering after
it; and when retribution accidentally falls on an offender in that
precise shape, the general feeling of satisfaction evinced bears
witness how natural is the sentiment to which this repayment in
kind is acceptable. With many, the test of justice in penal infliction
is that the punishment should be proportioned to the offence; meaning
that it should be exactly measured by the moral guilt of the culprit
(whatever be their standard for measuring moral guilt): the consideration,
what amount of punishment is necessary to deter from the offence,
having nothing to do with the question of justice, in their estimation:
while there are others to whom that consideration is all in all;
who maintain that it is not just, at least for man, to inflict on
a fellow creature, whatever may be his offences, any amount of suffering
beyond the least that will suffice to prevent him from repeating,
and others from imitating, his misconduct.
To take another example from a subject already once referred to.
In a co-operative industrial association, is it just or not that
talent or skill should give a title to superior remuneration? On
the negative side of the question it is argued, that whoever does
the best he can, deserves equally well, and ought not in justice
to be put in a position of inferiority for no fault of his own;
that superior abilities have already advantages more than enough,
in the admiration they excite, the personal influence they command,
and the internal sources of satisfaction attending them, without
adding to these a superior share of the world's goods; 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 it is contended, that society receives
more from the more efficient labourer; that his services being more
useful, society owes him a larger return for them; that a greater
share of the joint result is actually his work, and not to allow
his claim to it is a kind of robbery; that if he is only to receive
as much as others, he can only be justly required to produce as
much, and to give a smaller amount of time and exertion, proportioned
to his superior efficiency. Who shall decide between these appeals
to conflicting principles of justice? justice 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.
How many, again, and how irreconcilable, are the standards of justice
to which reference is made in discussing the repartition of taxation.
One opinion is, that payment to the State should be in numerical
proportion to pecuniary means. Others think that justice dictates
what they term graduated taxation; taking a higher percentage from
those who have more to spare. In point of natural justice a strong
case might be made for disregarding means altogether, and taking
the same absolute sum (whenever it could be got) from every one:
as the subscribers to a mess, or to a club, all pay the same sum
for the same privileges, whether they can all equally afford it
or not. Since the protection (it might be said) of law and government
is afforded to, and is equally required by all, there is no injustice
in making all buy it at the same price. It is reckoned justice,
not injustice, that a dealer should charge to all customers the
same price for the same article, not a price varying according to
their means of payment. This doctrine, as applied to taxation, finds
no advocates, because it conflicts so strongly with man's feelings
of humanity and of social expediency; but the principle of justice
which it invokes is as true and as binding as those which can be
appealed to against it. Accordingly it exerts a tacit influence
on the line of defence employed for other modes of assessing taxation.
People feel obliged to argue that the State does more for the rich
than for the poor, as a justification for its taking more from them:
though this is in reality not true, for the rich would be far better
able to protect themselves, in the absence of law or government,
than the poor, and indeed would probably be successful in converting
the poor into their slaves. Others, again, so far defer to the same
conception of justice, as to maintain that all should pay an equal
capitation tax for the protection of their persons (these being
of equal value to all), and an unequal tax for the protection of
their property, which is unequal. To this others reply, that the
all of one man is as valuable to him as the all of another. From
these confusions there is no other mode of extrication than the
utilitarian.
Is, then the difference between the just and the Expedient a merely
imaginary distinction? Have mankind been under a delusion in thinking
that justice is a more sacred thing than policy, and that the latter
ought only to be listened to after the former has been satisfied?
By no means. The exposition we have given of the nature and origin
of the sentiment, recognises a real distinction; and no one of those
who profess the most sublime contempt for the consequences of actions
as an element in their morality, attaches more importance to the
distinction than I do. 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.
The moral rules which forbid mankind to hurt one another (in which
we must never forget to include wrongful interference with each
other's freedom) are more vital to human well-being than any maxims,
however important, which only point out the best mode of managing
some department of human affairs. They have also the peculiarity,
that they are the main element in determining the whole of the social
feelings of mankind. It is their observance which alone preserves
peace among human beings: if obedience to them were not the rule,
and disobedience the exception, every one would see in every one
else an enemy, against whom he must be perpetually guarding himself.
What is hardly less important, these are the precepts which mankind
have the strongest and the most direct inducements for impressing
upon one another. By merely giving to each other prudential instruction
or exhortation, they may gain, or think they gain, nothing: in inculcating
on each other the duty of positive beneficence they have an unmistakable
interest, but far less in degree: a person may possibly not need
the benefits of others; but he always needs that they should not
do him hurt. Thus the moralities which protect every individual
from being harmed by others, either directly or by being hindered
in his freedom of pursuing his own good, are at once those which
he himself has most at heart, and those which he has the strongest
interest in publishing and enforcing by word and deed. It is by
a person's observance of these that his fitness to exist as one
of the fellowship of human beings is tested and decided; for on
that depends his being a nuisance or not to those with whom he is
in contact. Now it is these moralities primarily which compose the
obligations of justice. The most marked cases of injustice, and
those which give the tone to the feeling of repugnance which characterises
the sentiment, are acts of wrongful aggression, or wrongful exercise
of power over some one; the next are those which consist in wrongfully
withholding from him something which is his due; in both cases,
inflicting on him a positive hurt, either in the form of direct
suffering, or of the privation of some good which he had reasonable
ground, either of a physical or of a social kind, for counting upon.
The same powerful motives which command the observance of these
primary moralities, enjoin the punishment of those who violate them;
and as the impulses of self-defence, of defence of others, and of
vengeance, are all called forth against such persons, retribution,
or evil for evil, becomes closely connected with the sentiment of
justice, and is universally included in the idea. Good for good
is also one of the dictates of justice; and this, though its social
utility is evident, and though it carries with it a natural human
feeling, has not at first sight that obvious connection with hurt
or injury, which, existing in the most elementary cases of just
and unjust, is the source of the characteristic intensity of the
sentiment. But the connection, though less obvious, is not less
real. He who accepts benefits, and denies a return of them when
needed, inflicts a real hurt, by disappointing one of the most natural
and reasonable of expectations, and one which he must at least tacitly
have encouraged, otherwise the benefits would seldom have been conferred.
The important rank, among human evils and wrongs, of the disappointment
of expectation, is shown in the fact that it constitutes the principal
criminality of two such highly immoral acts as a breach of friendship
and a breach of promise. Few hurts which human beings can sustain
are greater, and none wound more, than when that on which they habitually
and with full assurance relied, fails them in the hour of need;
and few wrongs are greater than this mere withholding of good; none
excite more resentment, either in the person suffering, or in a
sympathising spectator. The principle, therefore, of giving to each
what they deserve, that is, good for good as well as evil for evil,
is not only included within the idea of justice as we have defined
it, but is a proper object of that intensity of sentiment, which
places the just, in human estimation, above the simply Expedient.
Most of the maxims of justice current in the world, and commonly
appealed to in its transactions, are simply instrumental to carrying
into effect the principles of justice which we have now spoken of.
That a person is only responsible for what he has done voluntarily,
or could voluntarily have avoided; that it is unjust to condemn
any person unheard; that the punishment ought to be proportioned
to the offence, and the like, are maxims intended to prevent the
just principle of evil for evil from being perverted to the infliction
of evil without that justification. The greater part of these common
maxims have come into use from the practice of courts of justice,
which have been naturally led to a more complete recognition and
elaboration than was likely to suggest itself to others, of the
rules necessary to enable them to fulfil their double function,
of inflicting punishment when due, and of awarding to each person
his right.
That first of judicial virtues, impartiality, is an obligation
of justice, partly for the reason last mentioned; as being a necessary
condition of the fulfilment of the other obligations of justice.
But this is not the only source of the exalted rank, among human
obligations, of those maxims of equality and impartiality, which,
both in popular estimation and in that of the most enlightened,
are included among the precepts of justice. In one point of view,
they may be considered as corollaries from the principles already
laid down. If it is a duty to do to each according to his deserts,
returning good for good as well as repressing evil by evil, it necessarily
follows that we should treat all equally well (when no higher duty
forbids) who have deserved equally well of us, and that society
should treat all equally well who have deserved equally well of
it, that is, who have deserved equally well absolutely. This is
the highest abstract standard of social and distributive justice;
towards which all institutions, and the efforts of all virtuous
citizens, should be made in the utmost possible degree to converge.
But this great moral duty rests upon a still deeper foundation,
being a direct emanation from the first principle of morals, and
not a mere logical corollary from secondary or derivative doctrines.
It is involved in the very meaning of Utility, or the Greatest Happiness
Principle. That principle is a mere form of words without rational
signification, unless one person's happiness, supposed equal in
degree (with the proper allowance made for kind), is counted for
exactly as much as another's. Those conditions being supplied, Bentham's
dictum, "everybody to count for one, nobody for more than one,"
might be written under the principle of utility as an explanatory
commentary.* The equal claim of everybody to happiness in the estimation
of the moralist and the legislator, involves an equal claim to all
the means of happiness, except in so far as the inevitable conditions
of human life, and the general interest, in which that of every
individual is included, set limits to the maxim; and those limits
ought to be strictly construed. As every other maxim of justice,
so this is by no means applied or held applicable universally; on
the contrary, as I have already remarked, it bends to every person's
ideas of social expediency. But in whatever case it is deemed applicable
at all, it is held to be the dictate of justice. All persons are
deemed to have a right to equality of treatment, except when some
recognised social expediency requires the reverse. And hence all
social inequalities which have ceased to be considered expedient,
assume the character not of simple inexpediency, but of injustice,
and appear so tyrannical, that people are apt to wonder how they
ever could have. been tolerated; forgetful that they themselves
perhaps tolerate other inequalities under an equally mistaken notion
of expediency, the correction of which would make that which they
approve seem quite as monstrous as what they have at last learnt
to condemn. The entire history of social improvement has been a
series of transitions, by which one custom or institution after
another, from being a supposed primary necessity of social existence,
has passed into the rank of a universally stigmatised injustice
and tyranny. So it has been with the distinctions of slaves and
freemen, nobles and serfs, patricians and plebeians; and so it will
be, and in part already is, with the aristocracies of colour, race,
and sex.
[* This implication, in the first principle of the utilitarian
scheme, of perfect impartiality between persons, is regarded by
Mr. Herbert Spencer (in his Social Statics) as a disproof of the
pretensions of utility to be a sufficient guide to right; since
(he says) the principle of utility presupposes the anterior principle,
that everybody has an equal right to happiness. It may be more correctly
described as supposing that equal amounts of happiness are equally
desirable, whether felt by the same or by different persons. This,
however, is not a pre-supposition; not a premise needful to support
the principle of utility, but the very principle itself; for what
is the principle of utility, if it be not that "happiness"
and "desirable" are synonymous terms? If there is any
anterior principle implied, it can be no other than this, that the
truths of arithmetic are applicable to the valuation of happiness,
as of all other measurable quantities.]
[Mr. Herbert Spencer, in a private communication on the subject
of the preceding Note, objects to being considered an opponent of
utilitarianism, and states that he regards happiness as the ultimate
end of morality; but deems that end only partially attainable by
empirical generalisations from the observed results of conduct,
and completely attainable only by deducing, from the laws of life
and the conditions of existence, what kinds of action necessarily
tend to produce happiness, and what kinds to produce unhappiness.
What the exception of the word "necessarily," I have no
dissent to express from this doctrine; and (omitting that word)
I am not aware that any modern advocate of utilitarianism is of
a different opinion. Bentham, certainly, to whom in the Social Statics
Mr. Spencer particularly referred, is, least of all writers, chargeable
with unwillingness to deduce the effect of actions on happiness
from the laws of human nature and the universal conditions of human
life. The common charge against him is of relying too exclusively
upon such deductions, and declining altogether to be bound by the
generalisations from specific experience which Mr. Spencer thinks
that utilitarians generally confine themselves to. My own opinion
(and, as I collect, Mr. Spencer's) is, that in ethics, as in all
other branches of scientific study, the consilience of the results
of both these processes, each corroborating and verifying the other,
is requisite to give to any general proposition the kind degree
of evidence which constitutes scientific proof.]
It appears from what has been said, that justice is a name for
certain moral requirements, which, regarded collectively, stand
higher in the scale of social utility, and are therefore of more
paramount obligation, than any others; though particular cases may
occur in which some other social duty is so important, as to overrule
any one of the general maxims of justice. Thus, to save a life,
it may not only be allowable, but a duty, to steal, or take by force,
the necessary food or medicine, or to kidnap, and compel to officiate,
the only qualified medical practitioner. In such cases, as we do
not call anything justice which is not a virtue, 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. By this useful accommodation
of language, the character of indefeasibility attributed to justice
is kept up, and we are saved from the necessity of maintaining that
there can be laudable injustice.
The considerations which have now been adduced resolve, I conceive,
the only real difficulty in the utilitarian theory of morals. It
has always been evident that all cases of justice are also cases
of expediency: the difference is in the peculiar sentiment which
attaches to the former, as contradistinguished from the latter.
If this characteristic sentiment has been sufficiently accounted
for; if there is no necessity to assume for it any peculiarity of
origin; if it is simply the natural feeling of resentment, moralised
by being made coextensive with the demands of social good; and if
this feeling not only does but ought to exist in all the classes
of cases to which the idea of justice corresponds; that idea no
longer presents itself as a stumbling-block to the utilitarian ethics.
Justice remains the appropriate name for certain social utilities
which are vastly more important, and therefore more absolute and
imperative, than any others are as a class (though not more so than
others may be in particular cases); and which, therefore, ought
to be, as well as naturally are, guarded by a sentiment not only
different in degree, but also in kind; distinguished from the milder
feeling which attaches to the mere idea of promoting human pleasure
or convenience, at once by the more definite nature of its commands,
and by the sterner character of its sanctions.
THE END
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