Essays in social justice

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Preface

One of the surest signs of degeneration is the growth of sentimental as distinguished from practical morality, especially when it is combined with an ingrowing conscience. Sentimental morality is the sort which evaluates character and conduct by their abihty to satisfy an inner sense of propriety, or to create within us the sensation of approval. Both character and conduct, under this system, come under what economists would call " consumers' goods " whose function is to please. Practical morahty is the sort which evaluates character and conduct by their results. The test is thus objective and not subjective. " By their fruits ye shall know them " is robust and wholesome doctrine, though even this may be travestied by defining fruits in subjective terms, under the alluring but delusive name of spiritual goods. An ingrowing conscience is one which leads its possessor to look continually inward upon his own motives and to try perpetually to test them by some supposedly inner knowledge as to what a motive ought to be like. Such a person is like one who would try to guide himself through the world by closing his eyes to the objects around him and following an assumed irmer sense of direction.

One school would have us believe that this inner knowledge, or intuition, is like the compass which the ship carries in her midst, which points unerringly to a fixed point outside the ship, and which, accordingly, becomes a safe guide. Another school, the anthropological, demonstrates conclusively that this compass does not point to any fixed vi PREFACE

point outside the ship, but may point in any and every direction, according to circumstances of time and place. In other words, the human conscience is the product of circumstances, and may lead to any conceivable kind of conduct. But this school goes further and virtually says that it does not matter since there is no fixed point outside the ship toward which the compass can point. We are on an open sea and one direction is as good as another provided we all agree upon it. We shall then all be pleased with the direction we are going, and that is all we need to care about. In other words, any kind of character or conduct which pleases us, which creates the sensation of approval within us, is as good as any other. Whatever we all agree to be right is right.

This book is written on the assumption that there is a fixed point outside the ship by which it must steer, that it makes a great deal of difference in which direction we happen to be headed, and, moreover, that we must be guided by looking out at this fixed point and not by looking in upon our own consciences, for our consciences may be perverted. Character and conduct either of the individual or the state are thus to be evaluated, not in accordance with their power to please, or to create the sensation of approval within us; but in accordance with their power to propel us in the right direction. What is the right direction is a question of fact and not a question of opinion, of hkes and dislikes, or of approval and disapproval by an iimer conscience.

T. N. Carver.

Cambridoe, Mass., December, 1914.

Contents

PAGE

I. What is Justice ? 3

II. The Ultimate Basis of Social Conflict » 35

Chapter I What Is Justice ?

The need for justice grows out of the conflict of human interests. That is to say, if there were no conflict of interests among mankind we should never have invented the word justice, nor conceived the idea for which it stands. How these conflicts arise will form the theme of the next two chapters. In the present chapter we are concerned with the concept of justice itself and the test by which one may determine whether a given act or policy is just or unjust.

While the need for justice arises out of the conflict of human interests, the occasion for the use of the word or the concept arises only when an attempt is made to adjust conflicts on some other basis than that of might. The unthinking plants and the lowest animals know no such thing as justice. Every conflict is settled by the right of might. Possibly some of the higher and more gregarious animals may have some dim perception of something resembling justice, though even that is doubtful. Certainly the attitude of the member of a herd or pack toward fellow members is different from that toward those outside the group. In this respect they resemble human beings. It may be that the difference is one of degree; but a difference of degree, if it be wide enough, constitutes a difference of kind. In fact, most differences are differences of degree. However, we need not waste time discussing a problem of which we know so little as we do about the mental processes of animals. Certain it is that human beings, especially those who call themselves highly civilized, not only hold an attitude toward members of their own herd or pack, variously called state, nation, or social group, different from that which they hold toward members of other groups, but they are also in the habit of thinking about this attitude, and wondering what it should be. When they are thinking about this they are either thinking about justice or something very closely related to it.

But when men are merely thinking about their attitude toward their fellow members of a social group, and wondering what that attitude should be, their ideas of justice are not Kkely to be very clear or definite. It is only when some attempt is made to settle an actual conflict of interests between individuals that they are forced to think in clear and definite terms. Sometimes their conclusions are, to our ears, extremely absurd, but they are at least definite and specific. There is a story of a missionary who had a watch which was coveted by an influential member of the tribe where he was located. This member hired a professional thief to steal the watch, paying him in advance. The missionary heard of the bargain, kept guard and, when the thief appeared, drove him away. Having already received his pay, and not wishing to return it to his employer, the thief absconded. Thereupon the employer demanded that the missionary should compensate him for the loss which he had sustained through the dishonesty of the thief. He reasoned that if the missionary had not scared the thief, he, the employer, would not have sustained the loss. The missionary was the cause of the loss and should therefore be compelled to make it good.

This story is used to illustrate the points already made in this discussion. First, there were conflicts of interests.

The man who employed the thief wanted the missionary's watch; so did the missionary. The thief also wanted the reward which he had already received; so did the employer. Second, this caused the employer to ponder over the situation. If he had not felt obliged to treat the missionary differently from the way he would treat an animal or a member of another tribe, he would have taken the watch by force, if he could. He felt obliged to observe certain customs of the tribe. Similarly, in demanding compensation for the loss sustained by the absconding of his employee, he showed some consideration. He did not choose the direct method of knocking the missionary on the head and taking what he wanted. Third, and most important, he worked out a theory of justice to fit this specific case. It may have been an incorrect theory, but it was specific in its application.

Another point, of the very greatest importance, is also illustrated by this story: the man who employed the thief was not restrained merely by his own sense of right and wrong; he was restrained also by his sense of responsibihty to a power stronger than himself, that is, to the tribe or the tribal chief. And this sense of responsibility was created by something very material and easily appreciated; that was the physical force which would be exerted to cause him pain, if he disregarded it. He knew perfectly well that he must deal with other members of his group according to rules laid down by that group, otherwise the group would chastise him in some way which he would not Uke. This represents the final stage in the development of the concept of justice, though the question as to the exact difference between justice and injustice may be far from clear. There exists at least, at this point, some kind of a concept of justice. This point is reached when men have not only thought about how to settle specific conflicts of interest, but when the social group has undertaken to act as an umpire, and to enforce its decisions by superior power.

The groups which imdertake to adjudicate the conflicting interests of mankind are known as states * or nations. These are groups of individuals which, as groups, undertake not only to settle or adjust conflicting interests among their own members, but to protect and discipline them as well. When a group has no superior or stronger group exercising authority over it, and giving it protection, it is said to be a sovereign group. Such a group may be said to be a law unto itself. It is self-controlled and self-disciplined, subject to no laws except those of the cosmic imiverse, and it is self-protected, having no defence except its own power and internal efficiency. It stands alone facing a hostile or friendly universe, according to the circumstances of time and place. But in order to maintain its place in that imiverse, surrounded by rival groups whose interests frequently conflict with its own, it must be strong. How can such a state grow strong ? One way is so to discipline its individual members as to secure as large a contribution from each to the strength of the whole as possible. The state which fails in this will fail in everything, provided another rival group succeeds better. In that event, the rival group will grow stronger and, should their interests ever come in conflict, it will pursue its own interests to the disadvantage of the weaker group.

The term state is in this instance used in the generic sense of a sovereign law-making power, and not as the name merely of one of the component parts of the American Union. But, because of the confusion likely to arise in the minds of American readers through the use of the word state in this double sense, the term nation will be used as the name of a sovereign group. This is in harmony with American, but opposed to European usage.

As between sovereign groups, though there are frequent conflicts of interest, yet the concept of justice is only vaguely and occasionally effective. Here, and here only in the hirnian world, might makes right, or rather, it takes the place of right. The primordial struggle for existence holds sway, practically vmmitigated and only slightly softened by concepts of right or justice. The only influence of such concepts is to reduce the savage ferocity of a conquering army to the rules of civilized warfare, to cause the stronger party voluntarily to show pity to the weaker, and to cause it to fear the ill opinion or open hostility of the rest of mankind. These considerations, however, have little influence upon an international bully whose moral sensibihties do not permit it to feel a sense of pity, or to care for the good opinions of the rest of mankind. When conditions arise imder which these sovereign groups are subjected to the will of a higher power which has the physical force to compel obedience, then these groups have surrendered their sovereignty to the higher power. That is what the states of the American imion did in 1789, though some of them were not convinced of it until 1865 ; that is what the states of the German Empire did in 187 1 ; and that is what the states of Europe will do when a new Charlemagne arises. Then justice will have a clear and definite instead of an obscure and indefinite meaning in its application to the relations among groups which are now sovereign.

The concept of justice, as applied to the conflict of interests within a nation, has come to play so large a part in our thinking as to influence more or less directly our thinking with respect to international relations. One symptom of this is the frequency with which it is asked: is it right for a nation to do that which it would not permit one of its citizens, or a group of its citizens, to do ?

The chief purpose of the nation is essentially that of every living being, viz., to keep on living. It is in no better position to consider, judicially, whether it ought to keep on living or not than is the individual. It can be counted on to decide that question in the affirmative as surely as can the individual. It can, therefore, be counted on to do everything within its power and wisdom to enable it to keep on living. If its existence is threatened, either directly or remotely, it can be counted on to exercise all its power, and to scruple at nothing in its own defence. That is precisely what the individual would do were he similarly situated, that is, were he left to defend himself without any protection from a higher power, and to direct himself without any control by a higher power. The individual who wished to keep on living under such circiunstances would, if he were wise, keep himself in the best possible condition. So must the nation. This would require the individual to safeguard the interests of every useful organ or constituent part of his body and to train every useful faculty. The state must do the same. It would also require the individual to discipline himself, to hold every appetite or propensity in check which would, if uncontrolled, weaken him and put him at a disadvantage in the struggle. The state is imder the same compulsion, it must not only safeguard and encourage every interest which contributes to the strength of the whole, but it must also restrain and hold in check every interest and every propensity of every citizen which in any way weakens the strength of the whole.

One of the first signs of decadence in a nation is its tendency to forget this stern fact. The greatest and most deadly of all intellectual vices is the imwillingness to see things as they are, or the propensity to believe that to be true which one wishes were true. Under what used to be miscalled the " canker of a long peace," men begin to wish that they had nothing to do but to enjoy themselves. They therefore succeed in believing that to be true. As a result they become impatient of restraint and discipline, they begin to demand freedom to do as they please, which results in general irresponsibihty and inefficiency, for which rowdyism is the only good name. It is useless to point out to them that this is the way to national ruin. They do not believe it. Besides, they think that it will not come in their own day. " After us, the deluge," is their cry.

On what principle or principles, according to what rules, shall the state control and discipline its members, and adjust their conflicting interests, protecting some and restraining others ? That is the problem of social justice. It has to do with the internal economy of the nation rather than with its external relations. As to the individual, it has to do with his external relations with his fellow citizens rather than with his internal adjustments.

Since the first duty of the state is to be strong in order that it may Hve, and since it must adjust the conflicting interests of its citizens, it follows that its duty is so to adjust these conflicting interests as to make itself strong. It must repress and discourage those interests of its individuals which conflict with its own, and it must support and encourage those which harmonize with its own. That is justice. In the most general terms, therefore, justice may be defined as such an adjustment of the conflicting interests of the citizens of a nation as will interfere least with, and contribute most to, the strength of the nation.

Looked at from another angle the same idea may be expressed by saying that justice is the name for the moral obligation of the state, as distinct from the individual, with respect to its task of adjusting conflicting interests. Since lo ESSAYS IN SOCIAL JUSTICE

the state has this to do, it must find out how to do it. What ought the state to do with respect to these conflicts, and how ought it to do it ? These are the questions of social justice. Since the state is self-ruled, and, what is more important, self-protected, the only answer it can possibly make to these questions is that it must do it in such a way as to strengthen itself and safeguard its own existence. This obhgation of the nation toward its members is like that of an umpire toward those whose conflicting interests he is called upon to adjust, except that the nation is an umpire whose well-being depends upon the aggregate well-being of those whose conflicting interests he is adjudicating. Such an obhgation as this no group, certainly no sovereign group, can avoid. Its own self-preservation demands it.

The rules of justice, that is, the rules according to which these conflicting interests are to be adjusted, may be embodied in positive law, or in mere pubHc opinion or social sentiment. They may emanate from the sovereign group, called the nation, in which case they take precedence, in practice, over all others, or they may emanate from indefinite and intangible groups, variously called " the community," " society," or even " civilization " or " Christendom," in which case they become effective in proportion as they are embodied in positive law and are enforced by the sovereign group.

Not only may positive law be wrong and unjust, though always and necessarily pretending to be just, but pubUc opinion and social sentiment are equally Uable to error. But the penalty for mistaken notions of justice is national weakness, and, if they continue and accumulate, national death. If this were not true, there would be no excuse for a study of this kind. How can we be certain that one rule, when applied, works justice and another injustice ? The only

WHAT IS JUSTICE? ii

way is to find out, if we can, whether the one or the other will strengthen the group, or weaken it. The study must be objective, rather than subjective, that is, we must study the laws of economics and social development, rather than our own sentiments.

At the very outset of this discussion, therefore, it is necessary to do that which ought not be necessary, namely, defend the proposition that social sentiment in its purest form, even though called moral sentiment or intuition, is quite likely to be wrong and vmjust. The effectiveness with which a rule is applied to the actual settlement of disputes depends, in a democracy, absolutely upon public sentiment, and the physical force which that sentiment is able to direct and control through governmental agencies. This has led to the not uncommon conclusion that public sentiment, or the popular will, either when expressed directly, or indirectly through constituted agents, is the source of justice. It is merely the source of the power, or physical force exercised by the state which must be invoked in order that a rule may be enforced. The rule and its enforcement may be either just or unjust.

The dictum that " the king can do no wrong " was only one of the many ways in which the idea was expressed that the sovereign will is the source of justice. When the king was supposed to embody in himself the will and sentiments of the people it was easy to conceive that whatever he decreed to be right or wrong must per se be right or wrong. But the case is no better when the people themselves express the sovereign will. Vox populi vox Dei is no nearer the truth than the formula that the king can do no wrong, in fact it is only another variation of the same error.

The bold assertion that the sovereign people can do no wrong would find, doubtless, as few supporters as the proposition that the sovereign person can do no wrong. Under certain conditions neither can be held accountable to any human power. There is no process, asBurke pointed out, whereby one can indict a whole people. But that the whole people can do no wrong is another proposition. Yet such is the tacit assumption on which a great deal of our popular thinking now proceeds. In considering an act of government, a few will ask the question. Is it just; but many more will ask. Does it express the popular will ? They who raise this question must necessarily assume either that the popular will is necessarily, or per se just, or that it is more important that goverimient shall act in accordance with the popular will than that it shall act in accordance with justice. He who consistently believes that the popular will may be wrong is content to judge any act of government on the sole basis of its justice or injustice. If it be just, he will commend it, no matter how universally the popular will opposes it, and if it be unjust he will condemn it no matter how completely it expresses the popular will. In fact he will never ask respecting any policy or proposed policy, Is it popular, or does it really express the popular will ? That would be trivial. He will first try to determine whether it is right, and next, if he be a leader of men, he will try to make the right popular.

Yet, such a view is, in every respect, consistent with democracy. One may beheve thoroughly that the popular will is frequently wrong and yet believe that it is less frequently wrong than that of an hereditary monarch, or an hereditary aristocracy, chosen by the " accident of birth " rather than on the basis of merit. A person who believes this may be as ardent a supporter of democracy as any one, and yet, when he is convinced that the popular will is wrong may condemn it and try to change it. But when he is convinced that an act of government is unjust, he will not ask the question, does it represent the popular will; he will condemn it regardless of its popular support.

Not only do many of our most voluminous writers and most loquacious statesmen support, virtually, the opposite view, but the general trend of opinion, at the present moment (a.d. 1914), seems uimiistakably to be in the direction of the opinion that the popular will must be right. There is comparatively little interest in efforts to make government more just, there is a great deal of interest in efforts to make it more popular. Most of the movements masquerading under the name " progressive " are designed to popularize government rather than to rationalize its acts or make them more just. If as much effort as is now being expended in trying to contrive a fool-proof government were expended in teaching the people how to run the government they have, and how to distinguish between just and unjust acts of government, more real progress would be made. The great question is not how may we ascertain the popular will. It is rather, how may we ascertain what the popular will ought to be.

As usually happens in similar cases, there is a close relationship between this trend of public opinion and the underlying philosophy of the time. When one suggests that there is a test of right and wrong, of justice and injustice, which transcends pubUc opinion, the likes and dislikes of the people, or even their moral sentiments, one rims counter to some very powerful currents of philosophic thought. This is declared to be unthinkable from the very nature of the case. It is contended either that the moral intviitions of mankind, if given free expression, must necessarily be right, or that right and wrong, justice and injustice, have no meaning outside of human Hkes and dislikes.

Even Westermarck, in his monumental work* begins with this categorical statement: " That the moral concepts are ultimately based on emotions, either of indignation or approval, is a fact that a certain school of thinkers have in vain attempted to deny. . . . Men pronounce certain acts to be good or bad on accoimt of the emotions those acts arouse in their minds, just as they call sunshine warm and ice cold on accoxmt of certain sensations which they experience, and as they name a thing pleasant or painful because they feel pleasure or pain. But to attribute a quality to a thing is never the same as merely to state the existence of a particular sensation or feeling in the mind which perceives it."

One might think that as there is an objective quality in sunshine which creates the subjective sensation of warmth, and an objective quality in ice which creates the subjective sensation of coldness, so there might conceivably be an objective quality in goodness which creates the subjective sensation of approval, and an objective quality in badness which creates the subjective sensation of indignation. That would be the reply of the intuitionist. However, it is easy to show that whereas the objective quality of coldness in ice always produces the subjective sensation of coldness when brought into contact with the human body, yet the subjective sensations of approval and disapproval are not invariably produced by the same objective facts. In other words, the same act which at one time produces the sensation of disapproval may, at another time and place, produce the opposite sensation. From this it is argued that right and wrong can have no objective character, but are determined wholly by subjective conditions. Something like

' The Origin and Development of the Moral Ideas, by Edward Westermarck Ph.D., LL.D. 2 vols. Second Edition, London, 1912.

this is intimated by Westermarck in the further statement; " Moral concepts, then, are essentially generalizations of tendencies in certain phenomena to call forth moral emotions."

But are we justified in raising the question: What phenomena ought to arouse the emotion of approval and what ought to arouse that of disapproval in the minds of the masses of the people ? The author seems to imply that we are not — that we have no right to raise such a question; that if certain phenomena actually call forth the emotion of approval, that settles it; there is no higher court of appeal; the phenomena are good. If others actually call forth the sensation of disapproval or indignation, that settles it; thereisnohigher court of appeal; the phenomena are bad. But suppose certain classes of social acts habitually call forth the sensation of approval in the minds of all the people of a nation or a civilization, but as a result of these acts, the nation weakens itself or the civilization destroys itself, leaving the world in possession of other people or other civilizations in which the sensation of approval is called forth by an entirely different class of social acts ? Does this affect the case ? In the opinion of the present writer it does.

Instead of raising the question, ought this class of acts to arouse the sensation of approval and that class the sensation of disapproval, it would probably be more to the point to ask: What wiU happen to a social group wherein this class of acts habitually arouses the sensation of approval, and that the sensation of disapproval ? If, as the result of a careful inquiry, we find that such a community weakens itself and endangers its existence by so doing, this conclusion certainly has some practical importance for that group. Whether we are justified in saying that it ought not approve and disapprove as it does, we can probably say that the chances are that if it continues so to do, it will eventually cease to be, and its territory will be occupied by a group whose approval and disapproval are differently aroused. These elect groups, whose approval and disapproval are given in such ways as to strengthen them and enable them to grow and flourish, need to be studied pretty carefully. They are of vastly more importance than those groups which have become extinct through their own internal weakness.

Another recent work * reiterates time and again the proposition: The mores are always right; the mores can make anything right, etc. This is virtually an endorsement of Westermarck's position. The terms right and wrong have no meaning beyond the sentiments of universal endorsement or disapproval in the minds of the people. Both writers, and a number of others besides, pile up evidence to show what wide variations there have been in social practices among the people of the earth. It is easy to show that almost everything which we think to be wrong has been at one time or another thought to be right by whole communities. In many of these communities the same acts which among us would call forth the sentiments of disapproval, call forth there the sentiments of approval, and the very acts which among us call forth the highest approval, among others have called forth the sentiment of intense indignation. Thus it is easy to show that almost any conceivable kind of conduct has, at one time or another, been thought to be right, and the same acts have, at different times and places, been thought to be wrong.