The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Volume Ii
• Preface to Part Iv (when First Issued Separately)
• Part IV.: The Ethics of Social Life: Justice
• Chapter 1.: Animal Ethics
• Chapter 2.: Subhuman Justice
• Chapter 3.: Human Justice
• Chapter 4.: The Sentiment of Justice
• Chapter 5.: The Idea of Justice
• Chapter 6.: The Formula of Justice
• Chapter 7.: The Authority of This Formula
• Chapter 8.: Its Corollaries
• Chapter 9.: The Right to Physical Integrity
• Chapter 10.: The Rights to Free Motion and Locomotion
• Chapter 11.: The Rights to the Uses of Natural Media
• Chapter 12.: The Right of Property
• Chapter 13.: The Right of Incorporeal Property
• Chapter 14.: The Rights of Gift and Bequest
• Chapter 15.: The Rights of Free Exchange and Free Contract
• Chapter 16.: The Right to Free Industry
• Chapter 17.: The Rights of Free Belief and Worship
• Chapter 18.: The Rights of Free Speech and Publication
• Chapter 19.: A Retrospect With an Addition
• Chapter 20.: The Rights of Women
• Chapter 21.: The Rights of Children
• Chapter 22.: Political Rights–so-called
• Chapter 23.: The Nature of the State
• Chapter 24.: The Constitution of the State
• Chapter 25.: The Duties of the State
• Chapter 26.: The Limits of State Duties
• Chapter 27.: The Limits of State Duties–continued
• Chapter 28.: The Limits of State Duties–continued
• Chapter 29.: The Limits of State Duties–concluded
• Part V.: The Ethics of Social Life: Negative Beneficence
• Chapter 1.: Kinds of Altruism
• Chapter 2.: Restraints On Free Competition
• Chapter 3.: Restraints On Free Contract
• Chapter 4.: Restraints On Undeserved Payments
• Chapter 5.: Restraints On Displays of Ability
• Chapter 6.: Restraints On Blame
• Chapter 7.: Restraints On Praise
• Chapter 8.: The Ultimate Sanctions
• Part VI.: The Ethics of Social Life: Positive Beneficence
• Chapter 1.: Marital Beneficence
• Chapter 2.: Parental Beneficence
• Chapter 3.: Filial Beneficence
• Chapter 4.: Aiding the Sick and the Injured
• Chapter 5.: Succor to the Ill-used and the Endangered
• Chapter 6.: Pecuniary Aid to Relatives and Friends
• Chapter 7.: Relief of the Poor
• Chapter 8.: Social Beneficence
• Chapter 9.: Political Beneficence
• Chapter 10.: Beneficence At Large
• Appendices
• Appendix A.: the Kantian Idea of Rights
• Appendix B.: the Land Question
• Appendix C.: The Moral Motive
• Appendix D.: Conscience In Animals
• Appendix E.: Replies to Criticisms
• References

CHAPTER 3.

Human Justice

257. The contents of the last chapter foreshadow the contents of this. As, from the evolution point of view, human life must be regarded as a further development of subhuman life, it follows that from this same point of view, human justice must be a further development of subhuman justice. For convenience the two are here separately treated, but they are essentially of the same nature, and form parts of a continuous whole.

Of man, as of all inferior creatures, the law by conformity to which the species is preserved, is that among adults the individuals best adapted to the conditions of their existence shall prosper most, and that individuals least adapted to the conditions of their existence shall prosper least–a law which, if uninterfered with, entails survival of the fittest, and spread of the most adapted varieties. And as before so here, we see that, ethically considered, this law implies that each individual ought to receive the benefits and the evils of his own nature and consequent conduct: neither being prevented from having whatever good his actions normally bring to him, nor allowed to shoulder off on to other persons whatever ill is brought to him by his actions.

To what extent such ill, naturally following from his actions, may be voluntarily borne by other persons, it does not concern us now to inquire. The qualifying effects of pity, mercy, and generosity, will be considered hereafter in the parts dealing with “Negative Beneficence” and “Positive Beneficence.” Here we are concerned only with pure justice.

The law thus originating, and thus ethically expressed, is obviously that which commends itself to the common apprehension as just. Sayings and criticisms daily heard imply a perception that conduct and consequence ought not to be dissociated. When, of some one who suffers a disaster, it is said, “He has no one to blame but himself,” there is implied the belief that he has not been inequitably dealt with. The comment on one whose misjudgment or misbehavior has entailed evil upon him, that “he has made his own bed, and now he must lie in it,” has behind it the conviction that this connection of cause and effect is proper. Similarly with the remark, “He got no more than he deserved.” A kindred conviction is implied when, conversely, there results good instead of evil. “He has fairly earned his reward”; “He has not received due recompense”; are remarks indicating the consciousness that there should be a proportion between effort put forth and advantage achieved–that justice demands such a proportion.

258. The truth that justice becomes more pronounced as organization becomes higher, which we contemplated in the last chapter, is further exemplified on passing from subhuman justice to human justice. The degree of justice and the degree of organization simultaneously make advances. These are shown alike by the entire human race, and by its superior varieties as contrasted with its inferior.

We saw that a high species of animal is distinguished from a low species, in the respect that since its aggregate suffers less mortality from incidental destructive agencies, each of its members continues on the average for a longer time subject to the normal relation between conduct and consequence; and here we see that the human race as a whole, far lower in its rate of mortality than nearly all races of inferior kinds, usually subjects its members for much longer periods to the good and evil results of well-adapted and ill-adapted conduct. We also saw that as, among the higher animals, a greater average longevity makes it possible for individual differences to show their effects for longer periods, it results that the unlike fates of different individuals are to a greater extent determined by that normal relation between conduct and consequence which constitutes justice; and we here see that in mankind, unlikenesses of faculty in still greater degrees, and for still longer periods, work out their effects in advantaging the superior and disadvantaging the inferior in the continuous play of conduct and consequence.

Similarly is it with the civilized varieties of mankind as compared with the savage varieties. A still further diminished rate of mortality implies that there is a still larger proportion, the members of which gain good from well-adapted acts and suffer evil from ill-adapted acts. While also it is manifest that both the greater differences of longevity among individuals, and the greater differences of social position, imply that in civilized societies more than in savage societies, differences of endowment, and consequent differences of conduct, are enabled to cause their appropriate differences of results, good or evil: the justice is greater.

259. More clearly in the human race than in lower races, we are shown that gregariousness establishes itself because it profits the variety in which it arises; partly by furthering general safety and partly by facilitating sustentation. And we are shown that the degree of gregariousness is determined by the degree in which it thus subserves the interests of the variety. For where the variety is one of which the members live on wild food, they associate only in small groups: game and fruits widely distributed, can support these only. But greater gregariousness arises where agriculture makes possible the support of a large number on a small area; and where the accompanying development of industries introduces many and various cooperations.

We come now to the truth–faintly indicated among lower beings and conspicuously displayed among human beings–that the advantages of cooperation can be had only by conformity to certain requirements which association imposes. The mutual hindrances liable to arise during the pursuit of their ends by individuals living in proximity, must be kept within such limits as to leave a surplus of advantage obtained by associated life. Some types of men, as the Abors, lead solitary lives, because their aggressiveness is such that they cannot live together. And this extreme case makes it clear that though, in many primitive groups, individual antagonisms often cause quarrels, yet the groups are maintained because their members derive a balance of benefit–chiefly in greater safety. It is also clear that in proportion as communities become developed, their division of labor complex, and their transactions multiplied, the advantages of cooperation can be gained only by a still better maintenance of those limits to each man's activities necessitated by the simultaneous activities of others. This truth is illustrated by the unprosperous or decaying state of communities in which the trespasses of individuals on one another are so numerous and great as generally to prevent them from severally receiving the normal results of their labors.

The requirement that individual activities must be mutually restrained, which we saw is so felt among certain inferior gregarious creatures that they inflict punishments on those who do not duly restrain them, is a requirement which, more imperative among men, and more distinctly felt by them to be a requirement, causes a still more marked habit of inflicting punishments on offenders. Though in primitive groups it is commonly left to any one who is injured to revenge himself on the injurer; and though even in the societies of feudal Europe, the defending and enforcing of his claims was in many cases held to be each man's personal concern; yet there has ever tended to grow up such perception of the need for internal order, and such sentiment accompanying the perception, that infliction of punishments by the community as a whole, or by its established agents, has become habitual. And that a system of laws enacting restrictions on conduct, and punishments for breaking them, is a natural product of human life carried on under social conditions, is shown by the fact that in numerous nations composed of various types of mankind, similar actions, similarly regarded as trespasses, have been similarly forbidden.

Through all which sets of facts is manifested the truth, recognized practically if not theoretically, that each individual carrying on the actions which subserve his life, and not prevented from receiving their normal results, good and bad, shall carry on these actions under such restraints as are imposed by the carrying on of kindred actions by other individuals, who have similarly to receive such normal results, good and bad. And vaguely, if not definitely, this is seen to constitute what is called justice.

260. We saw that among inferior gregarious creatures, justice in its universal simple form, besides being qualified by the self-subordination which parenthood implies, and in some measure by the self-restraint necessitated by association, is, in a few cases, further qualified in a small degree by the partial or complete sacrifice of individuals made in defense of the species. And now, in the highest gregarious creature, we see that this further qualification of primitive justice assumes large proportions.

No longer, as among inferior beings, demanded only by the need for defense against enemies of other kinds, this further self-subordination is, among human beings, also demanded by the need for defense against enemies of the same kind. Having spread wherever there is food, groups of men have come to be everywhere in one another's way; and the mutual enmities hence resulting, have made the sacrifices entailed by wars between groups, far greater than the sacrifices made in defense of groups against inferior animals. It is doubtless true with the human race, as with lower races, that destruction of the group, or the variety, does not imply destruction of the species; and it follows that such obligation as exists for selfsubordination in the interests of the group, or the variety, is an obligation of lower degree than is that of care of offspring, without fulfillment of which the species will disappear, and of lower degree than the obligation to restrain actions within the limits imposed by social conditions, without fulfillment, or partial fulfillment, of which the group will dissolve. Still, it must be regarded as an obligation to the extent to which the maintenance of the species is subserved by the maintenance of each of its groups.

But the self-subordination thus justified, and in a sense rendered obligatory, is limited to that which is required for defensive war. Only because the preservation of the group as a whole conduces to preservation of its members' lives, and their ability to pursue the objects of life, is there a reason for the sacrifice of some of its members; and this reason no longer exists when war is offensive instead of defensive.

It may, indeed, be contended that since offensive wars initiate those struggles between groups which end in the destruction of the weaker, offensive wars, furthering the peopling of the earth by the stronger, subserve the interests of the race. But even supposing that the conquered groups always consisted of men having smaller mental or bodily fitness for war (which they do not; for it is in part a question of numbers, and the smaller groups may consist of the more capable warriors), there would still be an adequate answer. It is only during the earlier stages of human progress that the development of strength, courage, and cunning, are of chief importance. After societies of considerable size have been formed, and the subordination needed for organizing them produced, other and higher faculties become those of chief importance; and the struggle for existence carried on by violence, does not always further the survival of the fittest. The fact that but for a mere accident Persia would have conquered Greece, and the fact that the Tartar hordes very nearly overwhelmed European civilization, show that offensive war can be trusted to subserve the interests of the race only when the capacity for a high social life does not exist; and that in proportion as this capacity develops, offensive war tends more and more to hinder, rather than to further, human welfare. In brief we may say that the arrival at a stage in which ethical considerations come to be entertained, is the arrival at a stage in which offensive war, by no means certain to further predominance of races fitted for a high social life, and certain to cause injurious moral reactions on the conquering as well as on the conquered, ceases to be justifiable; and only defensive war retains a quasi-ethical justification.

And here it is to be remarked that the self-subordination which defensive war involves, and the need for such qualification of the abstract principle of justice as it implies, belong to that transitional state necessitated by the physical-force conflict of races; and that they must disappear when there is reached a peaceful state. That is to say, all questions concerning the extent of such qualifications pertain to what we have distinguished as relative ethics; and are not recognized by that absolute ethics which is concerned with the principles of right conduct in a society formed of men fully adapted to social life.

This distinction I emphasize here because, throughout succeeding chapters, we shall find that recognition of it helps us to disentangle the involved problems of political ethics.