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 7.

The Authority of This Formula

275. Before going further we must contemplate this formula under all its aspects, for the purpose of seeing what may be said against it as well as what may be said in its favor.

By those who have been brought up in the reigning school of politics and morals, nothing less than scorn is shown for every doctrine which implies restraint on the doings of immediate expediency or what appears to be such. Along with avowed contempt for “abstract principles” and generalizations, there goes unlimited faith in a motley assemblage of nominees of caucuses, ruled by ignorant and fanatical wire pullers; and it is thought intolerable that its judgments should be in any way subordinated by deductions from ethical truths.

Strangely enough we find in the world of science, too, this approval of political empiricism and disbelief in any other guidance. Though it is a trait of the scientific mind to recognize causation as universal, and though this involves a tacit admission that causation holds throughout the actions of incorporated men, this admission remains a dead letter. Notwithstanding the obvious fact that if there is no causation in public affairs one course must be as good as another; and notwithstanding the obvious fact that to repudiate this implication is to say that some cause determines the goodness or badness of this or that policy; no effort is made to identify the causation. Contrariwise, there is ridicule of those who attempt to find a definite expression for the fundamental principle of harmonious social order. The differences among their views are emphasized, rather than the traits which their views have in common; just as, by adherents of the current creed, the differences among men of science are emphasized, instead of their essential agreements.

Manifestly, then, before proceeding we must deal with the more important objections urged against the formula reached in the last chapter.

276. Every kind of evolution is from the indefinite to the definite; and one of the implications is that a distinct conception of justice can have arisen but gradually. Already the advance towards a practical recognition of justice has been shown to imply a corresponding advance towards theoretical recognition of it. It will be desirable here to observe more closely this growth of the consciousness that the activities carried on for self-conservation by each, are to be restrained by the like activities of all.

And first let us note a fact which might have been fitly included at the close of the last chapter–the fact that where men are subject to the discipline of a peaceful social life only, uninterfered with by the discipline which intersocial antagonisms entail, they quickly develop this consciousness. Entirely pacific tribes, uncivilized in the common sense of the words as some of them are, show a perception of that which constitutes equity, far clearer than the perception displayed by civilized peoples, among whom the habits of industrial life are qualified more or less largely by the habits of militant life. The amiable and conscientious Lepcha, who, while he does not desire to be killed himself, refuses absolutely to assist in killing others; the Hos, full of social virtues, who may be driven almost to suicide by the suspicion that he has committed a theft; the lowly Wood-Veddah, who can scarcely conceive it possible that one man should willingly hurt another, or take that which does not belong to him; these and sundry others show that though there is not intelligence enough to frame a conception of the fundamental social law, there is yet a strong sentiment responding to this law, and an understanding of its special applications. Where the conditions are such as do not require that respect for the claims of fellow tribesmen shall go along with frequent tramplings on the claims of men outside the tribe, there grow up simultaneously in each individual a regard for his own claims and a regard for the claims of other individuals.

It is only where the ethics of amity are entangled with the ethics of enmity, that thoughts about conduct are confused by the necessities of compromise. The habit of aggression outside the society is at variance with the habit of nonaggression inside the society, and at variance with recognition of the law implied by nonaggression. A people which gives to its soldiers the euphemistic title “defenders of their country,” and then exclusively uses them as invaders of other countries–a people which so far appreciates the value of life that within its bounds it forbids prizefights, but beyond its bounds frequently takes scores of lives to avenge one life–a people which at home cannot tolerate the thought that inferiority shall bear the self-inflicted evils of inferiority, but abroad has no compunction in using bullet and bayonet to whatever extent is needful for conquest of the uncivilized, arguing that the inferior should be replaced by the superior; such a people must think crookedly about the ultimate principles of right and wrong. Now enunciating the code appropriate to its internal policy and now the code appropriate to its external policy, it cannot entertain a consistent set of ethical ideas. All through the course of that conflict of races which, by peopling the earth with the strongest, has been a preliminary to high civilization, there have gone on these incongruous activities necessitating incongruous sets of beliefs, and making a congruous set of beliefs inadmissible.

Nevertheless, where the conditions have allowed, the conception of justice has slowly evolved to some extent, and found for itself approximately true expressions. In the Hebrew commandments we see interdicts which, while they do not overtly recognize the positive element in justice, affirm in detail its negative element–specify limits to actions, and, by prescribing these limits for all Hebrews, tacitly assert that life, property, good name, &c., must be respected in one as in another. In a form which makes no distinction between generosity and justice, the Christian maxim “Do unto others as ye would that others should do unto you” vaguely implies the equality of men's claims–implies it, indeed, in too sweeping a manner, since it recognizes no reason for inequality in the shares of good respectively appropriate to men: there is in it no direct recognition of any claim which each has to the results of his own activities, but only an implied recognition of such claims in the persons of others, and by implication a prescribing of limits. Taking no note of intermediate forms of the conception, we may instance among modern forms the one which it took in the mind of Kant. His rule, “Act only on that maxim whereby thou canst at the same time will that it should become a universal law,” is, indeed, an allotropic form of the Christian rule. The suggestion that every other man must be imagined to act after a manner similar to the manner proposed, joined with the tacit implication that if suffering would be caused, the act should not be performed (Kant is classed as an antiutilitarian!), indirectly assumes that the welfares of other men are to be considered as severally of like values with the welfare of the actor–an assumption which, while it covers the requirements of justice, covers much more.

But now leaving these indications of the beliefs of those who have approached the question from the religious side and from the ethical side, let us consider the beliefs of those who have approached it from the legal side.

277. Of course, when jurists set forth first principles, or appeal to them, they have in mind the bases of justice, whether they use the word justice or not; since systems of justice, considered in general or in detail, form the subject matters of their works. This premised, let us observe the doctrines from time to time enunciated.

Sir Henry Maine, speaking of certain dangers which threatened the development of Roman law, says:

But at any rate they had adequate protection in their theory of Natural Law. For the Natural Law of the jurisconsults was distinctly conceived by them as a system which ought gradually to absorb civil laws, without superseding them so long as they remained unrepealed. . . . The value and serviceableness of the conception arose from its keeping before the mental vision a type of perfect law, and from its inspiring the hope of an indefinite approximation to it.

[Ancient Law, pp. 76–77, 3d ed.]

In the spirit of these Roman lawyers, one of our early judges of high repute, Chief Justice Hobart, uttered the emphatic assertion–"Even an Act of Parliament made against natural equity. as to make a man Judge in his own case, is void in itself, for jura nature sunt immutabilia, and they are leges legum” (Hobart's Reports, London, 1641, p. 120). So said a great authority of later date. Dominated by a creed which taught that natural things are supernaturally ordained, Blackstone wrote:

This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. . . . no human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.

[Chitty's Blackstone, vol. I., pp. 37–38.]

Of like character is another verdict, given by one who treated of legislation from a philosophical point of view. Sir James Mackintosh defines a law of nature as being

a supreme, invariable, and uncontrollable rule of conduct to all men. . . It is “the law of nature,” because its general precepts are essentially adapted to promote the happiness of man . . . because it is discoverable by natural reason, and suitable to our natural constitution; and because its fitness and wisdom are founded on the general nature of human beings, and not on any of those temporary and accidental situations in which they may be placed.

[Mackintosh's Miscellaneous Works, vol. I., p. 346.]

Even the despotically minded Austin, idolized by the lawyers of our days as having elaborated a theory of unlimited legislative authority, is obliged to confess that the ultimate justification for the governmental absolutism he defends, is ethical. Behind the authority, monarchical, oligarchic, or parliamentary, which enacts laws represented as supreme, there is at length recognized an authority to which it is subordinate–an authority. therefore, which is not derived from human law, but is above human law–an authority which is by implication ascribed, if not to divine enactment, then to the nature of things.

Paying some respect to these dicta (to which I may add that of the German jurists with their Naturrecht) does not imply unreasoning credulity. We may reasonably suspect that, however much they may be in form open to criticism, they are true in essence.

278. “But these are a priori beliefs,” will be the contemptuous comment of many. “They all exemplify that vicious mode of philosophizing which consists in evolving truths out of the depths of one's own consciousness,” will be said by those who hold that general truths can be reached only by conscious induction. Curiously illustrating the law that all movement is rhythmical, the absolute faith of past times in a priori reasoning, has given place to absolute disbelief; and now nothing is to be accepted unless it is reached a posteriori. Any one who contemplates the average sweep of human progress, may feel tolerably certain that this violent reaction will be followed by a re-reaction; and he may infer that both of these antithetical modes of reasoning, while they have their abuses, have also their uses.

Whence come a priori beliefs–how happen they to arise? I do not of course refer to beliefs peculiar to particular persons, which may be results of intellectual perversions. I refer to those which are general, if not universal–beliefs which all, or nearly all, do not profess to base on evidence, and yet which they hold to be certain. The origin of such beliefs is either natural or supernatural. If supernatural, then unless, by believers in a devil, they are regarded as diabolically insinuated into men to mislead them, they must be regarded as divinely implanted for purposes of guidance, and therefore to be trusted. If, not satisfied with an alleged supernatural derivation, we ask for a natural derivation, then our conclusion must be that these modes of thought are determined by converse with the relations of things. One who adheres to the current creed with its good and evil agents, is not without a feasible reason for denying the value of a priori beliefs; but one who accepts the doctrine of evolution is obliged, if he is consistent, to admit that a priori beliefs entertained by men at large, must have arisen, if not from the experiences of each individual, then from the experiences of the race. When, to take a geometrical illustration, it is affirmed that two straight lines cannot inclose a space; and when it is admitted, as it must be, that this truth cannot be established a posteriori, since not in one case, still less in many cases, can lines be pursued out into infinity for the purpose of observing what happens to the space between them; then the inevitable admission must be that men's experiences of straight lines (or rather, having regard to primitive times, let us say objects approximately straight) have been such as to make impossible the conception of space as inclosed by two straight lines–have been such as to make it imperative to think of the lines as bending before the space can be inclosed. Unquestionably, on the evolution hypothesis, this fixed intuition must have been established by that intercourse with things which, throughout an enormous past, has, directly or indirectly, determined the organization of the nervous system and certain resulting necessities of thought; and the a priori beliefs determined by these necessities differ from a posteriori beliefs simply in this, that they are products of the experiences of innumerable successive individuals instead of the experiences of a single individual.

If, then, from the evolution point of view, this is undoubtedly so with those simple cognitions which concern space, time, and number, must we not infer that it is so, in large measure, with those more complex cognitions which concern human relations? I say “in large measure”; partly because the experiences are in this case far more involved and superficially varied, and cannot have produced anything like such definite effects on the nervous organization; and partly because, instead of reaching back through an immeasurable series of ancestral beings, they reach back through a part of the human race only. For these experiences, hardly traceable during early stages, become marked and coherent only where amicable social cooperation, forms a considerable factor in social life. Hence these cognitions must be comparatively indefinite.

The qualification to be therefore made is that these ethical intuitions, far more than the mathematical intuitions, have to be subjected to methodic criticism. Even the judgments of immediate perception respecting straight lines, curves, angles, and so forth, have to be tested in ways devised by conscious reason: one line is perceived to be perpendicular to another with approximate truth, but complete perpendicularity can be ascertained only by the aid of a geometrical theorem. Evidently, then, the relatively vague internal perceptions which men have of right human relations, are not to be accepted without deliberate comparisons, rigorous cross-examinations, and careful testings of all kinds: a conclusion made obvious by the numerous minor disagreements which accompany the major agreement.

Thus even had the foregoing dicta, and along with them the law of equal freedom as recently formulated, no other than a priori derivations (and this is far from being the fact) it would still be rational to regard them as adumbrations of a truth, if not literally true.

279. But now mark that those who, in this case, urge against a system of thought the reproach that it sets out with an a priori intuition, may have the reproach hurled back upon them with more than equal force.

Alike in philosophy, in politics, and in science, we may see that the inductive school has been carried by its violent reaction against the deductive school to the extreme of assuming that conscious induction suffices for all purposes, and that there is no need to take anything for granted. Though giving proof of an alleged truth consists in showing that it is included in some wider established truth, and though, if this wider truth be questioned, the process is repeated by demonstrating that a still wider truth includes it; yet it is tacitly assumed that this process may go on forever without reaching a widest truth, which cannot be included in any other, and therefore cannot be proved. And the result of making this unthinking assumption is the building up of theories which, if they have not a priori beliefs as their bases, have no bases at all. This we shall find to be the case with the utilitarian systems of ethics and politics.5

For what is the ultimate meaning of expediency? When it is proposed to guide ourselves empirically, towards what are we to guide ourselves? If our course must always be determined by the merits of the case, by what are the merits to be judged? “By conduciveness to the welfare of society, or the good of the community,” will be the answer. It will not be replied that the merit to be estimated means increase of misery; it will not be replied that it means increase of a state of indifference, sensational and emotional; and it must therefore be replied that it means increase of happiness. By implication, if not avowedly. greatest happiness is the thing to be achieved by public action, or private action, or both. But now whence comes this postulate? Is it an inductive truth? Then where and by whom has the induction been drawn? Is it a truth of experience derived from careful observations? Then what are the observations, and when was there generalized that vast mass of them on which all politics and morals should be built? Not only are there no such experiences, no such observations, no such induction, but it is impossible that any should be assigned. Even were the intuition universal, which it is not (for it has been denied by ascetics in all ages and places, and is demurred to by an existing school of moralists), it would still have no better warrant than that of being an immediate dictum of consciousness.

More than this is true. There is involved a further belief no less a priori. Already l 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. And this tacit assumption that one man's claim to happiness is as good as another's has been recently put into more concrete shape by Mr. Bellamy. who says: “The world, and everything that is in it, will ere long be recognized as the common property of all, and undertaken and administered for the equal benefit of all.” That is to say. whether formulated by Bentham himself, or by Mill as his expositor, or by a communistic disciple, the assumption is that all men have equal rights to happiness. For this assumption no warrant is given, or can be given, other than alleged intuitive perception. It is an a priori cognition.

“But it is not a cognition properly so-called,” will probably be asserted by those who wish to repudiate the communistic implication, at the same time that they wish to repudiate the a priori reasoning. “It is merely the product of perverted fancy. Happiness itself cannot be divided out either equally or unequally, and the greatest happiness is not to be obtained by equal division of the means to happiness, or the benefits, as they are above called. It is to be obtained rather by giving a larger share of means to those who are most capable of happiness.” Raising no question about the practicability of such an adjustment, let us simply ask the warrant for this assertion. Is it an inductive warrant? Has anyone made a number of comparisons between societies in which the one method of apportioning happiness has been pursued, and societies in which the other has been pursued? Hardly so, considering that neither the one method nor the other has been pursued in any society. This alternative assumption has no more facts to stand upon than the assumption repudiated. If it does not claim for itself an a priori warrant, then it has no warrant.

See then the predicament. While reprobating assumptions said to be warranted only by direct intuition, this empirical system makes more such assumptions than the system to which it is opposed! One of them is implied in the assertion that happiness should be the end sought, and another of them is implied in either of the two assertions that men have equal rights to happiness or that they have not equal rights to happiness. Mark, too, that no one of these intuitions is justified by so wide a consensus as the intuition rejected as untrustworthy. Sir Henry Maine remarks that

The happiness of mankind is, no doubt, sometimes assigned, both in the popular and in the legal literature of the Romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the testimonies to this principle compared with the tributes which are constantly offered to the overshadowing claims of the Law of Nature.

[Ancient Law, p. 79, 3d ed.]

And it is scarcely needful to say that 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.

280. But now let it be remembered that this principle of natural equity. expressed in the last chapter as the freedom of each limited only by the like freedom of all, is not an exclusively a priori belief. Though, under one aspect, it is an immediate dictum of the human consciousness after it has been subject to the discipline of prolonged social life, it is, under another aspect, a belief deducible from the conditions to be fulfilled, firstly for the maintenance of life at large, and secondly for the maintenance of social life.

Examination of the facts has shown it to be a fundamental law, by conformity to which life has evolved from its lowest up to its highest forms, that each adult individual shall take the consequences of its own nature and actions: survival of the fittest being the result. And the necessary implication is an assertion of that full liberty to act which forms the positive element in the formula of justice; since, without full liberty to act, the relation between conduct and consequence cannot be maintained. Various examples have made clear the conclusion, manifest in theory, that among gregarious creatures this freedom of each to act, has to be restricted; since if it is unrestricted there must arise such clashing of actions as prevents the gregariousness. And the fact that, relatively unintelligent though they are, inferior gregarious creatures inflict penalties for breaches of the needful restrictions, shows how regard for them has come to be unconsciously established as a condition to persistent social life.

These two laws, holding, the one of all creatures and the other of social creatures, and the display of which is clearer in proportion as the evolution is higher, find their last and fullest sphere of manifestation in human societies. We have recently seen that along with the growth of peaceful cooperation there has been an increasing conformity to this compound law under both its positive and negative aspects; and we have also seen that there has gone on simultaneously an increase of emotional regard for it and intellectual apprehension of it.

So that we have not only the reasons above given for concluding that this a priori belief has its origin in the experiences of the race, but we are enabled to affiliate it on the experiences of living creatures at large, and to perceive that it is but a conscious response to certain necessary relations in the order of nature.

No higher warrant can be imagined; and now, accepting the law of equal freedom as an ultimate ethical principle, having an authority transcending every other, we may proceed with our inquiry.

[[5]There are some who not only decline to admit any truths as necessary, but deny necessity itself; apparently without consciousness of the fact that since, in reasoning, every step from premises to conclusion has no other warrant than perception of the necessity of dependence, to deny necessity is to deny the validity of every argument, including that by which it is proposed to prove the absence of necessity! I recently read a comment on the strange resurrection of a doctrine said to have been long ago killed. Doubtless remarkable enough, if true. I know only one thing more remarkable, and that is the way in which a system of thought may be seen going about in high spirits after having committed suicide!