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:

In different theories which have been urged justice has been regarded as an individual virtue, or as a moral idea, or as a regime of social control, or as the end or purpose of social control and so of law, or as the ideal relation among men which we seek to promote and maintain in civilized society and toward which we direct social control and law as the most specialized form of social control. Definitions of justice depend upon which of these approaches is taken. (1)

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 of these is the formula of justice originally enunciated by Kant and later (independently, as he thought) by Herbert Spencer. The Kantian idea of justice was the external liberty of each limited by the like liberty of all others: "The universal Law of Right may then be expressed thus: 'Act externally in such a manner that the free exercise of thy Will may be able to co-exist with the Freedom of all others, according to a universal Law l'" The rule as formulated by Herbert Spencer is very close to this: "Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man." (2)

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:

A possible misapprehension must be guarded against. There are acts of aggression which the formula is presumably intended to exclude, which apparently it does not exclude. It may be said that if A strikes B, then, so long as B is not debarred from striking A in return, no greater freedom is claimed by the one than by the other; or it may be said that if A has trespassed on B's property, the requirement of the formula has not been broken so long as B can trespass on A's property. Such interpretations, however, mistake the essential meaning of the formula.... Instead of justifying aggression and counter-aggression, the intention of the formula is to fix a bound which may not be exceeded on either side. (3)

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.

His formula "does not countenance," Spencer explains, "a superfluous interference with another's life [my italics]." (4) But he does not define what he means by "superfluous," or which interferences are superfluous and which are not. He is compelled, in fact, in his later explanations, to fall back upon a utilitarian justification of his formula as tending to promote the maximum of freedom, happiness, and life; but elsewhere he declares that the principle of utility presupposes the anterior principle of justice, and that the principle of justice rests on an a priori cognition.

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:

The term Freedom is ambiguous. If we interpret it strictly, as meaning Freedom of Action alone, the principle seems to allow any amount of mutual annoyance except constraint. But obviously no one would be satisfied with such Freedom as this. If, however, we include in the idea freedom from pain and annoyance inflicted by others, the right of freedom itself seems to prevent us from accepting the principle in all its breadth. For there is scarcely any gratification of a man's natural impulses which may not cause some annoyance to others: and we cannot prohibit all such annoyances without restraining freedom of action to a degree that would be intolerable: and yet it is hard to lay down any principle for distinguishing intuitively those that ought to be allowed from those that must be prohibited. (5)

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:

In any society feelings and convictions relating to actions that should not be done are much more homogeneous and easily identifiable than any other kind of feelings and convictions. Legislation protecting people against what they do not want other people to do to them is likely to be much more easily determinable and more generally successful than any kind of legislation based on other "positive" desires of the same individuals. In fact, such desires are not only usually much less homogeneous and compatible with one another than the "negative" ones, but are also often very difficult to ascertain. (6)

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:

Now, when we ask "What is Justice?", we are at once met by two conflicting ideals, each of which on the face of it seems entitled to respect. In the first place the principle that every human being is of equal intrinsic value, and is therefore entitled to equal respect, is one which commends itself to common sense, a principle which may naturally claim to be the exacter expression of the Christian ideal of Brotherhood. On the other hand, the principle that the good ought to be preferred to the bad, that men ought to be rewarded according to their goodness or according to their work, is one which no less commends itself to the unsophisticated moral consciousness. We shall perhaps best arrive at some true idea of the nature of Justice by examining the claims of these two rival and prima facie inconsistent ideals -- the ideal of equality, considered in the sense of equality of consideration, and the ideal of just recompense or reward -- and we shall perhaps do well to start with the suspicion that there will be a considerable presumption against any solution of the problem which does not recognize some meaning or element of truth in each of them. (7)

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.

He begins by examining the Benthamite maxim "Every one to count for one and nobody to count for more than one." This maxim, Rashdall continues, was put forward by Bentham "as a canon for the distribution of happiness. He saw clearly enough that his 'greatest happiness' principle, or the principle of greatest good (however good may be interpreted), stands in need of this or some supplementary canon before it can be available for practical application." (8)

Rashdall then considers the alleged mathematical problem of "distributing" maximum happiness as among, say, a hundred people, and adds: "The principle which Bentham adopted as a solution of such problems is the maxim 'Every one to count for one and nobody for more than one.' He failed to see how impossible it is to establish such a principle by experience or to rest it upon anything but an a priori judgment." (9)

Rashdall then goes on to consider in what sense the maxim properly applies. He rejects the formula of equality of material rewards or "equality of opportunity" and concludes that "there is only one sort of equality that is always practicable and always right, and that is equality of consideration." (10) (My italics.) He then proceeds to argue that the Benthamite maxim is acceptable only if it is interpreted to mean: "Every man's good to count as equal to the like good of every other man." (11)

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:

Already I have referred to Bentham's rule -- "Everybody to count for one, nobody for more than one," joined with Mr. Mill's comment that the greatest happiness principle is meaningless unless "One person's happiness . . . is counted for exactly as much as another's." Hence the Benthamite theory of morals and politics posits this as a fundamental, self-evident truth.... For this assumption no warrant is given, or can be given, other than alleged intuitive perception. It is an a priori cognition. (12)

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?

We can clarify our understanding of the process if we begin by imagining a minimum society consisting solely of A and B. (13) If A and B are of equal strength and ability, or approximately so, A will not be able to keep the product of their joint effort entirely for himself, or even to appropriate a grossly disproportionate share of it, for the simple reason that B will not let him. After a certain number of squabbles they will, for the sake of economizing effort, minimizing annoyance, and keeping the peace, probably arrive at a tacit or even explicit modus vivendi by which each will agree to accept approximately equal shares of their joint product or will agree to certain uniform rules of division of work, division of product, priority, etc.

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 nowaccepts 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

So we are brought back once more to the promotion of Social Cooperation as the key to the problem of Justice as well as other major ethical problems. "The ultimate yardstick of justice is conduciveness to the preservation of social cooperation.... Social cooperation becomes for almost every man the great means for the attainment of all ends.... In ethics a common ground for the choice of rules of conduct is given so far as people agree in considering the preservation of social cooperation the foremost means for attaining all their ends." (14)

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.

Let us see what happens when we reject the notion of justice as a means to the promotion of social cooperation and hence to the maximization of happiness and well-being, and treat Justice as the supreme end in itself. Even Herbert Spencer came near doing this in his section on Justice in the second volume of his Principles of Ethics. We have already seen that he regarded the Benthamite rule "Everybody to count for one, nobody for more than one" as "an a priori cognition." (15) He quoted Sir Henry Maine in support of putting the Law of Nature, or Justice, above the goal of human happiness, and went on: "Since Roman times there has continued to be this contrast between the narrow recognition of happiness as an end, and the wide recognition of natural equity as an end." And he concluded that we must accept "the law of equal freedom [his formula for Justice] as an ultimate ethical principle, having an authority transcending every other." (16)

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 wellbeing 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:

Harmonious co-operation, by which alone in any [society] the greatest happiness can be attained, is, as we saw, made possible only by respect for one another's claims: there must be neither those direct aggressions which we class as crimes against person and property, nor must there be those indirect aggressions constituted by breaches of contracts. So that maintenance of equitable relations between men is the condition to attainment of greatest happiness in all societies, however much the greatest happiness attainable in each may differ in nature, or amount, or both.(17)

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 returning 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 co-operation 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 cooperation" (p. 43). "Amicable social co-operation" (p. 56). "Peaceful co-operation" (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 overwhelming 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."

But all this has been pointed out by Hume. I need merely refer the reader again to the extensive quotations I made from Hume in Chapter 8, on "The Need for General Rules," in which Hume points out that just laws may sometimes "deprive, without scruple, a beneficent man of all his possessions if acquired by mistake, without a good title, in order to bestow them on a selfish miser who has already heaped up immense stores of superfluous riches." (18) Nevertheless, in the interests of long-run public good, it is essential that established general rules of justice be applied without arbitrary exceptions.

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 well being 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.

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 characterizes 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. (19)

Notes

1. Justice According to Law (Yale University Press, 1951), p. 2.

2. The Principles of Ethics (Appleton, 1898), II, 46.

3. Ibid., II, 46-47.

4. Loc. cit.

5. The Methods of Ethics (Macmillan, 1877), pp. 246-247.

6. Freedom and the Law (Princeton: Van Nostrand, 1961), p. 15.

7. Theory of Good and Evil (Oxford University Press, 1907), I p. 223

8. Loc. cit.

9. Ibid., p. 224.

10. Ibid., p. 233.

11. Ibid., p. 240.

12. The Principles of Ethics, II, 58-59.

13. Students of economics will recognize that the method I am here adopting is analogous to the use of the Robinson Crusoe, or isolated individual, hypothesis in economics. This simplifying hypothesis has frequently been ridiculed by Karl Marx and others, but seems to me essential, not only for teaching the basic principles of economics to beginners, but for the clarification of the sophisticated economist's own thinking on many problems. One of the reasons so much nonsense is written in modern economics is precisely because this method is neglected. Ethics would be in a more advanced stage than it is if moral philosophers had begun more often with the postulate of the isolated individual and then moved, for many problems, to the postulate of a society of two, three, etc. before jumping immediately to The Great Society. I believe this applies also in the other social sciences, such as economics and sociology. The careful use of this method would have avoided some of the major fallacies, for example, of so-called "aggregative" or "macroeconomics."

14. Ludwig von Mises; Theory and History (Yale University Press, 1957), pp. 54, 56, 61.

15. Principles of Ethics, II, 58-59.

16. Principles of Ethics, II, 60, 61.

17. § 62.

18. David Hume, an Inquiry Concerning the Principles of Morals, p. 122.

19. Utilitarianism (many editions), Chap. V (pp. 73-75).

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