Front Page Titles (by Subject) CHAPTER 5.: The Idea of Justice - The Principles of Ethics, vol. 2
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CHAPTER 5.: The Idea of Justice - Herbert Spencer, The Principles of Ethics, vol. 2 
The Principles of Ethics, introduction by Tibor R. Machan (Indianapolis: LibertyClassics, 1978). Vol. 2.
Part of: The Principles of Ethics, 2 vols.
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The Idea of Justice
266. While describing the sentiment of justice the way has been prepared for describing the idea of justice. Though the two are intimately connected they may be clearly distinguished.
One who has dropped his pocketbook and, turning round, finds that another who has picked it up will not surrender it, is indignant. If the goods sent home by a shopkeeper are not those he purchased, he protests against the fraud. Should his seat at a theater be usurped during a momentary absence, he feels himself ill used. Morning noises from a neighbor's poultry he complains of as grievances. And, meanwhile, he sympathizes with the anger of a friend who has been led by false statements to join a disastrous enterprise, or whose action at law has been rendered futile by a flaw in the procedure. But though, in these cases, his sense of justice is offended, he may fail to distinguish the essential trait which in each case causes the offense. He may have the sentiment of justice in full measure while his idea of justice remains vague.
This relation between sentiment and idea is a matter of course. The ways in which men trespass on one another become more numerous in their kinds, and more involved, as society grows more complex; and they must be experienced in their many forms, generation after generation, before analysis can make clear the essential distinction between legitimate acts and illegitimate acts. The idea emerges and becomes definite in the course of the experiences that action may be carried up to a certain limit without causing resentment from others, but if carried beyond that limit produces resentment. Such experiences accumulate; and gradually, along with repugnance to the acts which bring reactive pains, there arises a conception of a limit to each kind of activity up to which there is freedom to act. But since the kinds of activity are many and become increasingly various with the development of social life, it is a long time before the general nature of the limit common to all cases can be conceived.2
A further reason for this slowness of development should be recognized. Ideas as well as sentiments must, on the average, be adjusted to the social state. Hence, as war has been frequent or habitual in nearly all societies, such ideas of justice as have existed have been perpetually confused by the conflicting requirements of internal amity and external enmity.
267. Already it has been made clear that the idea of justice, or at least the human idea of justice, contains two elements. On the one hand, there is that positive element implied by each man's recognition of his claims to unimpeded activities and the benefits they bring. On the other hand, there is that negative element implied by the consciousness of limits which the presence of other men having like claims necessitates. Two opposite traits in these two components especially arrest the attention.
Inequality is the primordial idea suggested. For if the principle is that each shall receive the benefits and evils due to his own nature and consequent conduct, then, since men differ in their powers, there must be differences in the results of their conduct. Unequal amounts of benefit are implied.
Mutual limitations to men's actions suggest a contrary idea. When it is seen that if each pursues his ends regardless of his neighbor's claims, quarrels must result, there arises the consciousness of bounds which must be set to the doings of each to avoid the quarrels. Experience shows that these bounds are on the average the same for all. And the thought of spheres of action bounded by one another, which hence results, involves the conception of equality.
Unbalanced appreciations of these two factors in human justice, lead to divergent moral and social theories, which we must now glance at.
268. In some of the rudest men the appreciations are no higher than those which we see among inferior gregarious animals. Here the stronger takes what he pleases from the weaker without exciting general reprobation–as among the Dogribs; while, elsewhere, there is practiced and tacitly approved something like communism–as among the Fuegians. But where habitual war has developed political organization, the idea of inequality becomes predominant. If not among the conquered, who are made slaves, yet among the conquerors, who naturally think of that which conduces to their interest as that which ought to be, there is fostered this element in the conception of justice which implies that superiority shall have the benefits of superiority.
Though the Platonic dialogues may not be taken as measures of Greek belief, yet we may gather from them what beliefs were general. Glaucon, describing a current opinion, says:
This, as they affirm, is the origin and nature of justice: there is a mean or compromise between the best of all, which is to do and not to suffer injustice, and the worst of all, which is to suffer without the power of retaliation; and justice, being the mean between the two, is tolerated not as good, but as the lesser evil. And immediately afterwards it is said that men are only diverted into the path of justice by the force of law.
In this significant passage several things are to be noted. There is first a recognition of the fact, above indicated, that at an early stage the practice of justice is initiated by the dread of retaliation, and the conviction, suggested by experience, that on the whole it is desirable to avoid aggression and to respect the limit which compromise implies: there is no thought of intrinsic flagitiousness in aggression, but only of its impolicy. Furthers the limit to each man's actions, described as “a mean or compromise,” and respect for which is called “the path of justice,” is said to be established only “by the force of law.” Law is not considered as an expression of justice otherwise cognizable, but as itself the source of justice; and hence results the meaning of a preceding proposition, that it is just to obey the law. Thirdly. there is an implication that were it not for retaliation and legal penalties, the stronger might with propriety take advantage of the weaker. There is a half-expressed belief that superiority ought to have all the advantages which superiority can take: the idea of inequality occupies a prominent place, while the idea of equality makes no definite appearance.
What was the opinion of Plato, or rather of Socrates, on the matter is not very easy to find out. Greek ideas on many matters had not yet reached the stage of definiteness, and throughout the dialogues the thinking is hazy. Justice, which is in some places exemplified by honesty, is elsewhere the equivalent of virtue at large, and then (to quote from Jowett's summary) is regarded as “universal order or well being, first in the state, and secondly in the individual.” This last, which is the finished conclusion, implies established predominance of a ruling class and subjection of the rest. Justice consists “in each of the three classes doing the work of its own class”: carpenter, shoemaker, or what not, “doing each his own business, and not another's”; and all obeying the class whose business it is to rule.3 Thus the idea of justice is developed from the idea of inequality. Though there is some recognition of equality of positions and of claims among members of the same class, yet the regulations respecting community of wives &c. in the guardian class, have for their avowed purpose to establish, even within that class, unequal privileges for the benefit of the superior.
That the notion of justice had this general character among the Greeks, is further shown by the fact that it recurs in Aristotle. In Chapter V of his Politics, he concludes that the relation of master and slave is both advantageous and just.
But now observe that though in the Greek conception of justice there predominates the idea of inequality, while the idea of equality is inconspicuous, the inequality refers, not to the natural achievement of greater rewards by greater merits, but to the artificial apportionment of greater rewards to greater merits. It is an inequality mainly established by authority The gradations in the civil organization are of the same nature as those in the military organization. Regimentation pervades both; and the idea of justice is conformed to the traits of the social structure.
And this is the idea of justice proper to the militant type at large, as we are again shown throughout Europe in subsequent ages. It will suffice to point out that along with the different law-established positions and privileges of different ranks, there went gradations in the amounts paid in composition for crimes, according to the rank of the injured. And how completely the notion of justice was determined by the notion of rightly existing inequalities, is shown by the condemnation of serfs who escaped into the towns, and were said to have “unjustly” withdrawn themselves from the control of their lords.
Thus, as might be expected, we find that while the struggle for existence between societies is going on actively, recognition of the primary factor in justice which is common to life at large, human and subhuman, is very imperfectly qualified by recognition of the secondary factor. That which we may distinguish as the brute element in the conception is but little mitigated by the human element.
269. All movements are rhythmical, and, among others, social movements, with their accompanying doctrines. After that conception of justice in which the idea of inequality unduly predominates, comes a conception in which the idea of equality unduly predominates.
A recent example of such reactions is furnished by the ethical theory of Bentham. As is shown by the following extract from Mr. Mill's Utilitarianism (p. 91), the idea of inequality here entirely disappears:
The Greatest-Happiness 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
Now though Bentham ridicules the taking of justice as our guide, saying that while happiness is an end intelligible to all, justice is a relatively unintelligible end, yet he tacitly asserts that his principle, “everybody to count for one, nobody for more than one,” is just; since, otherwise, he would be obliged to admit that it is unjust, and we may not suppose he would do so. Hence the implication of his doctrine is that justice means an equal apportionment of the benefits, material and immaterial, which men's activities bring. There is no recognition of the propriety of inequalities in men's shares of happiness, consequent on inequalities in their faculties or characters.
This is the theory which communism would reduce to practice. From one who knows him, I learn that Prince Krapotkin blames the English socialists because they do not propose to act out the rule popularly worded as “share and share alike.” In a recent periodical, M. de Laveleye summed up the communistic principle as being “that the individual works for the profit of the state, to which he hands over the produce of his labor for equal division among all.” In the communistic utopia described in Mr. Bellamy's Looking Backward, it is held that each “shall make the same effort,” and that if by the same effort, bodily or mental, one produces twice as much as another, he is not to be advantaged by the difference. The intellectually or physically feeble are to be quite as well off as others: the assertion being that the existing regime is one of “robbing the incapable class of their plain right in leaving them unprovided for.”
The principle of inequality is thus denied absolutely. It is assumed to be unjust that superiority of nature shall bring superiority of results, or, at any rate, superiority of material results; and as no distinction appears to be made in respect either of physical qualities or intellectual qualities or moral qualities, the implication is not that strong and weak shall fare alike, but that foolish and wise, worthy and unworthy. mean and noble, shall do the same. For if, according to this conception of justice, defects of nature, physical or intellectual, ought not to count, neither ought moral defects, since they are all primarily inherited.
And here, too, we have a deliberate abolition of that cardinal distinction between the ethics of the family and the ethics of the state, emphasized at the outset: an abolition which, as we saw, must eventuate in decay and disappearance of the species or variety in which it takes place.
270. After contemplating these divergent conceptions of justice, in which the ideas of inequality and equality almost or quite exclude one another, we are now prepared for framing a true conception of justice.
In other fields of thought it has fallen to my lot to show that the right view is obtained by coordinating the antagonistic wrong views. Thus, the association theory of intellect is harmonized with the transcendental theory on perceiving that when, to the effects of individual experiences, are added the inherited effects of experiences received by all ancestors, the two views become one. So, too, when the molding of feelings into harmony with requirements, generation after generation, is recognized as causing an adapted moral nature, there results a reconciliation of the expediency theory of morals with the intuitional theory. And here we see that a like mutual correction occurs with this more special component of ethics now before us.
For if each of these opposite conceptions of justice is accepted as true in part, and then supplemented by the other, there results that conception of justice which arises on contemplating the laws of life as carried on in the social state. The equality concerns the mutually limited spheres of action which must be maintained if associated men are to cooperate harmoniously. The inequality concerns the results which each may achieve by carrying on his actions within the implied limits. No incongruity exists when the ideas of equality and inequality are applied the one to the bounds and the other to the benefits. Contrariwise, the two may be, and must be, simultaneously asserted.
Other injunctions which ethics has to utter do not here concern us. There are the self-imposed requirements and limitations of private conduct, forming that large division of ethics treated of in Part III; and there are the demands and restraints included under “Negative Beneficence” and “Positive Beneficence,” to be hereafter treated of, which are at once self-imposed and in a measure imposed by public opinion. But here we have to do only with those claims and those limits which have to be maintained as conditions to harmonious cooperation, and which alone are to be enforced by society in its corporate capacity.
271. Any considerable acceptance of so definite an idea of justice is not to be expected. It is an idea appropriate to an ultimate state, and can be but partially entertained during transitional states; for the prevailing ideas must, on the average, be congruous with existing institutions and activities.
The two essentially different types of social organization, militant and industrial, based respectively on status and on contract, have, as we have above seen, feelings and beliefs severally adjusted to them; and the mixed feelings and beliefs appropriate to intermediate types, have continually to change according to the ratio between the one and the other. As I have elsewhere shown,4 during the thirty–or rather forty–years' peace, and consequent weakening of the militant organization, the idea of justice became clearer: coercive regulations were relaxed and each man left more free to make the best of himself. But since then, the redevelopment of militancy has caused reversal of these changes; and, along with nominal increases of freedom, actual diminutions of freedom have resulted from multiplied restrictions and exactions. The spirit of regimentation proper to the militant type, has been spreading throughout the administration of civil life. An army of workers with appointed tasks and apportioned shares of products, which socialism, knowingly or unknowingly, aims at, shows in civil life the same characters as an army of soldiers with prescribed duties and fixed rations shows in military life; and every act of Parliament which takes money from the individual for public purposes and gives him public benefits, tends to assimilate the two. Germany best shows this kinship. There, where militancy is most pronounced, and where the regulation of citizens is most elaborate, socialism is most highly developed; and from the head of the German military system has now come the proposal of regimental regulations for the working classes throughout Europe.
Sympathy which, a generation ago, was taking the shape of justice, is relapsing into the shape of generosity; and the generosity is exercised by inflicting injustice. Daily legislation betrays little anxiety that each shall have that which belongs to him, but great anxiety that he shall have that which belongs to somebody else. For while no energy is expended in so reforming our judicial administration that everyone may obtain and enjoy all he has earned, great energy is shown in providing for him and others benefits which they have not earned. Along with that miserable laissez-faire which calmly looks on while men ruin themselves in trying to enforce by law their equitable claims, there goes activity in supplying them, at other men's cost, with gratis novel-reading!
[]The genesis of the idea of simple limits to simple actions is exhibited to us by intelligent animals, and serves to elucidate the process in the case of more complex actions and less obvious limits. I refer to the dogs of Constantinople, among which, if not between individuals yet between groups of individuals, there are tacit assertions of claims and penalties for invasions of claims. This well-known statement has been recently verified in a striking way in the work of Major E. C. Johnson, On the Track of the Crescent. He says (pp. 58—59): “One evening l was walking [in Constantinople] with an English officer of gendarmerie when a bitch came up and licked his hand. . . . She followed us a little way, and stopped short in the middle of the street. She wagged her tail, and looked wistfully after us, but never stirred when we called her. A few nights afterwards. . . the same bitch. . . recognized me. . . and followed me to the boundary of her district.”
[]On another page there is furnished a typical example of Socratic reasoning. It is held to be a just “principle that individuals are neither to take what is another’s, nor to be deprived of what is their own.” From this it is inferred that justice consists in “having and doing what is a man's own”; and then comes the further inference that it is unjust for one man to assume another's occupation, and “force his way” out of one class into another. Here, then, because a man's own property and his own occupation are both called his own, the same conclusion is drawn concerning both. Two fallacies are involved–the one that a man can “own” a trade in the same way that he owns a coat, and the other that because he may not be deprived of the coat he must be restricted to the trade. The Platonic dialogues are everywhere vitiated by fallacies of this kind, caused by confounding words with things–unity of name with unity of nature.
[]Principles of Sociology, secs. 266—7; PoliticalInstitutions, secs. 573—74 and 559.