V. JUSTICE…

V. JUSTICE

§ 1. We have seen that in delineating the outline of duty, as intuitively recognised, we have to attempt to give to common terms a definite and precise meaning. This process of definition always requires some reflection and care, and is sometimes one of considerable difficulty. But there is no case where the difficulty is greater, or the result more disputed, than when we try to define Justice.

Before making the attempt, it may be as well to remind the reader what it is that we have to do. We have not to inquire into the derivation of the notion of Justice, as we are not now studying the history of our ethical thought, but its actual condition. Nor can we profess to furnish a definition which will correspond to every part of the common usage of the term; for many persons are undoubtedly vague and loose in their application of current moral notions. But it is an assumption of the Intuitional method[204] that the term ‘justice’ denotes a quality which it is ultimately desirable to realise in the conduct and social relations of men; and that a definition may be given of this which will be accepted by all competent judges as presenting, in a clear and explicit form, what they have always meant by the term, though perhaps implicitly and vaguely. In seeking such a definition we may, so to speak, clip the ragged edge of common usage, but we must not make excision of any considerable portion.[205]

Perhaps the first point that strikes us when we reflect upon our notion of Justice is its connexion with Law. There is no doubt that just conduct is to a great extent determined by Law, and in certain applications the two terms seem interchangeable. Thus we speak indifferently of ‘Law Courts’ and ‘Courts of Justice,’ and when a private citizen demands Justice, or his just rights, he commonly means to demand that Law should be carried into effect. Still reflection shows that we do not mean by Justice merely conformity to Law. For, first, we do not always call the violators of law unjust, but only of some Laws: not, for example, duellists or gamblers. And secondly, we often judge that Law as it exists does not completely realise Justice; our notion of Justice furnishes a standard with which we compare actual laws, and pronounce them just or unjust. And, thirdly, there is a part of just conduct which lies outside the sphere even of Law as it ought to be; for example, we think that a father may be just or unjust to his children in matters where the law leaves (and ought to leave) him free.

We must then distinguish Justice from what has been called the virtue or duty of Order, or Law-observance: and perhaps, if we examine the points of divergence just mentioned, we shall be led to the true definition of Justice.

Let us therefore first ask, Of what kind of laws is the observance generally thought to be a realisation of Justice? In most cases they might be described as laws which define and secure the interests of assignable individuals. But this description is not complete, as Justice is admittedly concerned in the apportionment of adequate punishment to each offender; though we should not say that a man had an interest in the adequacy of his punishment. Let us say, then, that the laws in which Justice is or ought to be realised, are laws which distribute and allot to individuals either objects of desire, liberties and privileges, or burdens and restraints, or even pains as such. These latter, however, are only allotted by law to persons who have broken other laws. And as all law is enforced by penalties, we see how the administration of law generally may be viewed as the administration of Justice, in accordance with this definition: not because all laws are primarily and in their first intention distributive, but because the execution of law generally involves the due allotment of pains and losses and restraints to the persons who violate it. Or, more precisely, we should say that this legal distribution ought to realise Justice, for we have seen that it may fail to do so. We have next to ask, therefore, What conditions must laws fulfil in order that they may be just in their distributive effects?

Here, however, it may seem that we are transgressing the limit which divides Ethics from Politics: for Ethics is primarily concerned with the rules which ought to govern the private conduct of individuals; and it is commonly thought that private persons ought to obey even laws that they regard as unjust, if established by lawful authority. Still, this is doubted in the case of laws that seem extremely unjust: as (e.g.) the Fugitive Slave law in the United States before the rebellion. At any rate it seems desirable that we should here digress somewhat into political discussion; partly in order to elucidate the notion of Justice, which seems to be essentially the same in both regions, and partly because it is of great practical importance to individuals, in regulating private conduct beyond the range of Law-observance, to know whether the laws and established order of the society in which they live are just or unjust.

Now perhaps the most obvious and commonly recognised characteristic of just laws is that they are Equal: and in some departments of legislation, at least, the common notion of Justice seems to be exhaustively expressed by that of Equality. It is commonly thought, for example, that a system of taxation would be perfectly just if it imposed exactly equal burdens upon all:[206] and though this notion of ‘equal burden’ is itself somewhat difficult to define with the precision required for practical application, still we may say that Justice here is thought to resolve itself into a kind of equality. However, we cannot affirm generally that all laws ought to affect all persons equally, for this would leave no place for any laws allotting special privileges and burdens to special classes of the community; but we do not think all such laws necessarily unjust: e.g. we think it not unjust that only persons appointed in a certain way should share in legislation, and that men should be forced to fight for their country but not women. Hence some have said that the only sense in which justice requires a law to be equal is that its execution must affect equally all the individuals belonging to any of the classes specified in the law. And no doubt this rule excludes a very real kind of injustice: it is of the highest importance that judges and administrators should never be persuaded by money or otherwise to show ‘respect of persons.’ So much equality, however, is involved in the very notion of a law, if it be couched in general terms: and it is plain that laws may be equally executed and yet unjust: for example, we should consider a law unjust which compelled only red-haired men to serve in the army, even though it were applied with the strictest impartiality to all red-haired men. We must therefore conclude, that, in laying down the law no less than in carrying it out, all inequality[207] affecting the interests of individuals which appears arbitrary, and for which no sufficient reason can be given, is held to be unjust. But we have still to ask, what kind of reasons for inequality Justice admits and from what general principle (or principles) all such reasons are to be deduced?

§ 2. Perhaps we shall find it easier to answer this question, if we examine the notion of Justice as applied to that part of private conduct which lies beyond the sphere of law. Here, again, we may observe that the notion of Justice always involves allotment of something considered as advantageous or disadvantageous: whether it be money or other material means of happiness; or praise, or affection, or other immaterial good, or some merited pain or loss. Hence I should answer the question raised in the preceding chapter (§ 3), as to the classification of the duties there discussed under the heads of Justice and Benevolence respectively, by saying that the fulfilment of any duty of the affections, considered by itself, does not exemplify Justice: but that when we come to compare the obligations arising out of different affectionate relations, and to consider the right allotment of love and kind services, the notion of Justice becomes applicable. In order to arrange this allotment properly we have to inquire what is Just. What then do we mean by a just man in matters where law-observance does not enter? It is natural to reply that we mean an impartial man, one who seeks with equal care to satisfy all claims which he recognises as valid and does not let himself be unduly influenced by personal preferences. And this seems an adequate account of the virtue of justice so far as we consider it merely subjectively, and independently of the intellectual insight required for the realisation of objective justice in action: if we neglect to give due consideration to any claim which we regard as reasonable, our action cannot be just in intention. This definition suffices to exclude wilful injustice: but it is obvious that it does not give us a sufficient criterion of just acts, any more than the absence of arbitrary inequality was found to be a sufficient criterion of just laws.[208] We want to know what are reasonable claims.

Well, of these the most important--apart from the claims discussed in the preceding chapter--seems to be that resulting from contract. This is to a certain extent enforced by law: but it is clear to us that a just man will keep engagements generally, even when there may be no legal penalty attached to their violation. The exact definition of this duty, and its commonly admitted qualifications, will be discussed in the next chapter: but of its general bindingness Common Sense has no doubt.

Further, we include under the idea of binding engagements not merely verbal promises, but also what are called ‘implied contracts’ or ‘tacit understandings.’ But this latter term is a difficult one to keep precise: and, in fact, is often used to include not only the case where A has in some way positively implied a pledge to B, but also the case where B has certain expectations of which A is aware. Here, however, the obligation is not so clear: for it would hardly be said that a man is bound to dispel all erroneous expectations that he may know to be formed respecting his conduct, at the risk of being required to fulfil them. Still, if the expectation was such as most persons would form under the circumstances, there seems to be some sort of moral obligation to fulfil it, if it does not conflict with other duties, though the obligation seems less definite and stringent than that arising out of contract. Indeed I think we may say that Justice is generally, though somewhat vaguely, held to prescribe the fulfilment of all such expectations (of services, etc.) as arise naturally and normally out of the relations, voluntary or involuntary, in which we stand towards other human beings. But the discussions in the preceding chapter have shown the difficulty of defining even those duties of this kind which, in an indefinite form, seemed certain and indisputable: while others are only defined by customs which to reflection appear arbitrary. And though while these customs persist, the expectations springing from them are in a certain sense natural, so that a just man seems to be under a kind of obligation to fulfil them, this obligation cannot be regarded as clear or complete, for two reasons that were given in the last chapter; first, because customs are continually varying, and as long as any one is in a state of variation, growing or decaying, the validity of the customary claim is obviously doubtful; and secondly, because it does not seem right that an irrational and inexpedient custom should last for ever, and yet it can only be abolished by being “more honoured in the breach than in the observance.”

This line of reflection therefore has landed us in a real perplexity respecting the department of duty which we are at present examining. Justice is something that we conceive to be intrinsically capable of perfectly definite determination: a scrupulously just man, we think, must be very exact and precise in his conduct. But when we consider that part of Justice which consists in satisfying such natural and customary claims as arise independently of contract, it seems impossible to estimate these claims with any exactness. The attempt to map out the region of Justice reveals to us a sort of margin or dim borderland, tenanted by expectations which are not quite claims and with regard to which we do not feel sure whether Justice does or does not require us to satisfy them. For the ordinary actions of men proceed on the expectation that the future will resemble the past: hence it seems natural to expect that any particular man will do as others do in similar circumstances, and, still more, that he will continue to do whatever he has hitherto been in the habit of doing; accordingly his fellow-men are inclined to think themselves wronged by his suddenly omitting any customary or habitual act, if the omission causes them loss or inconvenience.[209] On the other hand, if a man has given no pledge to maintain a custom or habit, it seems hard that he should be bound by the unwarranted expectations of others. In this perplexity, common sense often appears to decide differently cases similar in all respects, except in the quantity of disappointment caused by the change. For instance, if a poor man were to leave one tradesman and deal with another because the first had turned Quaker, we should hardly call it an act of injustice, however unreasonable we might think it: but if a rich country gentleman were to act similarly towards a poor neighbour, many persons would say that it was unjust persecution.

The difficulty just pointed out extends equally to the duties of kindness--even to the specially stringent and sacred duties of the domestic affections and gratitude--discussed in the previous chapter. We cannot get any new principle for settling any conflict that may present itself among such duties, by asking ‘what Justice requires of us’: the application of the notion of Justice only leads us to view the problem in a new aspect as a question of the right distribution of kind services--it does not help us to solve it. Had we clear and precise intuitive principles for determining the claims (e.g.) of parents on children, children on parents, benefactors on the recipients of their benefits, we might say exactly at what point or to what extent the satisfaction of one of these claims ought in justice to be postponed to the satisfaction of another, or to any worthy aim of a different kind: but I know no method of determining a problem of this kind which is not either implicitly utilitarian, or arbitrarily dogmatic, and unsupported by Common Sense.

§ 3. If now we turn again to the political question, from which we diverged, we see that we have obtained from the preceding discussion one of the criteria of the justice of laws which we were seeking--viz. that they must avoid running counter to natural and normal expectations--: but we see at the same time that the criterion cannot be made definite in its application to private conduct, and it is easy to show that there is the same indefiniteness and consequent difficulty in applying it to legislation. For Law itself is a main source of natural expectations; and, since in ordinary times the alterations in law are very small in proportion to the amount unaltered, there is always a natural expectation that the existing laws will be maintained: and although this is, of course, an indefinite and uncertain expectation in a society like ours, where laws are continually being altered by lawful authority, it is sufficient for people in general to rely upon in arranging their concerns, investing their money, choosing their place of abode, their trade and profession, etc. Hence when such expectations are disappointed by a change in the law, the disappointed persons complain of injustice, and it is to some extent admitted that justice requires that they should be compensated for the loss thus incurred. But such expectations are of all degrees of definiteness and importance, and generally extend more widely as they decrease in value, like the ripples made by throwing a stone into a pond, so that it is practically impossible to compensate them all: at the same time, I know no intuitive principle by which we could separate valid claims from invalid, and distinguish injustice from simple hardship.[210]

But even if this difficulty were overcome further reflection must, I think, show that the criterion above given is incomplete or imperfectly stated: otherwise it would appear that no old law could be unjust, since laws that have existed for a long time must create corresponding expectations. But this is contrary to Common Sense: as we are continually becoming convinced that old laws are unjust (e.g. laws establishing slavery): indeed, this continually recurring conviction seems to be one of the great sources of change in the laws of a progressive society.

Perhaps we may say that there are natural expectations which grow up from other elements of the social order, independent of and so possibly conflicting with laws: and that we call rules unjust which go counter to these. Thus e.g. primogeniture appears to many unjust, because all the landowner’s children are brought up in equally luxurious habits, and share equally the paternal care and expenditure, and so the inequality of inheritance seems paradoxical and harsh. Still, we cannot explain every case in this way: for example, the conviction that slavery is unjust can hardly be traced to anything in the established order of the slave-holding society, but seems to arise in a different way.

The truth is, this notion of ‘natural expectations’ is worse than indefinite: the ambiguity of the term conceals a fundamental conflict of ideas, which appears more profound and far-reaching in its consequences the more we examine it. For the word ‘natural,’ as used in this connexion, covers and conceals the whole chasm between the actual and the ideal--what is and what ought to be. As we before noticed,[211] the term seems, as ordinarily used, to contain the distinct ideas of (1) the common as opposed to the exceptional, and (2) the original or primitive as contrasted with the result of later conventions and institutions. But it is also used to signify, in more or less indefinite combination with one or other of these meanings, ‘what would exist in an ideal state of society.’ And it is easy to see how these different meanings have been blended and confounded. For since by ‘Nature’ men have really meant God, or God viewed in a particular aspect--God, we may say, as known to us in experience--when they have come to conceive a better state of things than that which actually exists, they have not only regarded this ideal state as really exhibiting the Divine purposes more than the actual, and as being so far more ‘natural’: but they have gone further, and supposed more or less definitely that this ideal state of things must be what God originally created, and that the defects recognisable in what now exists must be due to the deteriorating action of men. But if we dismiss this latter view, as unsupported by historical evidence, we recognise more plainly the contrast and conflict between the other two meanings of ‘natural,’ and the corresponding discrepancy between the two elements of the common notion of Justice. For, from one point of view, we are disposed to think that the customary distribution of rights, goods, and privileges, as well as burdens and pains, is natural and just, and that this ought to be maintained by law, as it usually is: while, from another point of view, we seem to recognise an ideal system of rules of distribution which ought to exist, but perhaps have never yet existed, and we consider laws to be just in proportion as they conform to this ideal. It is the reconciliation between these two views which is the chief problem of political Justice.[212]

On what principles, then, is the ideal to be determined? This is, in fact, the question which has been chiefly in view from the outset of the chapter; but we could not satisfactorily discuss it until we had distinguished the two elements of Justice, as commonly conceived--one conservative of law and custom, and the other tending to reform them. It is on this latter that we shall now concentrate our attention.

When, however, we examine this ideal, as it seems to show itself in the minds of different men in different ages and countries, we observe various forms of it, which it is important to distinguish.

In the first place, it must be noticed that an ideal constitution of society may be conceived and sought with many other ends in view besides the right distribution of good and evil among the individuals that compose it: as (e.g.) with a view to conquest and success in war, or to the development of industry and commerce, or to the highest possible cultivation of the arts and sciences. But any such political ideal as this is beyond the range of our present consideration, as it is not constructed on the basis of our common notion of Justice. Our present question is, Are there any clear principles from which we may work out an ideally just distribution of rights and privileges, burdens and pains, among human beings as such? There is a wide-spread view, that in order to make society just certain Natural Rights should be conceded to all members of the community, and that positive law should at least embody and protect these, whatever other regulations it may contain: but it is difficult to find in Common Sense any definite agreement in the enumeration of these Natural Rights, still less any clear principles from which they can be systematically deduced.

§ 4. There is, however, one mode of systematising these Rights and bringing them under one principle, which has been maintained by influential thinkers; and which, though now perhaps somewhat antiquated, is still sufficiently current to deserve careful examination. It has been held that Freedom from interference is really the whole of what human beings, originally and apart from contracts, can be strictly said to owe to each other: at any rate, that the protection of this Freedom (including the enforcement of Free Contract) is the sole proper aim of Law, i.e. of those rules of mutual behaviour which are maintained by penalties inflicted under the authority of Government. All natural Rights, on this view, may be summed up in the Right to Freedom; so that the complete and universal establishment of this Right would be the complete realisation of Justice,--the Equality at which Justice is thought to aim being interpreted as Equality of Freedom.

Now when I contemplate this as an abstract formula, though I cannot say that it is self-evident to me as the true fundamental principle of Ideal Law, I admit that it commends itself much to my mind; and I might perhaps persuade myself that it is owing to the defect of my faculty of moral (or jural) intuition that I fail to see its self-evidence. But when I endeavour to bring it into closer relation to the actual circumstances of human society, it soon comes to wear a different aspect.

In the first place, it seems obviously needful to limit the extent of its application. For it involves the negative principle that no one should be coerced for his own good alone; but no one would gravely argue that this ought to be applied to the case of children, or of idiots, or insane persons. But if so, can we know a priori that it ought to be applied to all sane adults? since the above-mentioned exceptions are commonly justified on the ground that children, etc., will manifestly be better off if they are forced to do and abstain as others think best for them; and it is, at least, not intuitively certain that the same argument does not apply to the majority of mankind in the present state of their intellectual progress. Indeed, it is often conceded by the advocates of this principle that it does not hold even in respect of adults in a low state of civilisation. But if so, what criterion can be given for its application, except that it must be applied wherever human beings are sufficiently intelligent to provide for themselves better than others would provide for them? and thus the principle would present itself not as absolute, but merely a subordinate application of the wider principle of aiming at the general happiness or well-being of mankind.

But, again, the term Freedom is ambiguous. If we interpret it strictly, as meaning Freedom of Action alone, the principle seems to allow any amount of mutual annoyance except constraint. But obviously no one would be satisfied with such Freedom as this. If, however, we include in the idea absence of pain and annoyance inflicted by others, it becomes at once evident that we cannot prohibit all such annoyances without restraining freedom of action to a degree that would be intolerable; since there is scarcely any gratification of a man’s natural impulses which may not cause some annoyance to others. Hence in distinguishing the mutual annoyances that ought to be allowed from those that must be prohibited we seem forced to balance the evils of constraint against pain and loss of a different kind: while if we admit the Utilitarian criterion so far, it is difficult to maintain that annoyance to individuals is never to be permitted in order to attain any positive good result, but only to prevent more serious annoyance.

Thirdly, in order to render a social construction possible on this basis, we must assume that the right to Freedom includes the right to limit one’s freedom by contract; and that such contracts, if they are really voluntary and not obtained by fraud or force, and if they do not violate the freedom of others, are to be enforced by legal penalties. But I cannot see that enforcement of Contracts is strictly included in the notion of realising Freedom; for a man seems to be most completely free when no one of his volitions is allowed to have any effect in causing the external coercion of any other. If, again, this right of limiting Freedom is itself unlimited, a man might thus freely contract himself out of freedom into slavery, so that the principle of freedom would turn out suicidal; and yet to deduce from this principle a limited right of limiting freedom by contract seems clearly impossible.[213]

But if it be difficult to define freedom as an ideal to be realised in the merely personal relations of human beings, the difficulty is increased when we consider the relation of men to the material means of life and happiness.

For it is commonly thought that the individual’s right to Freedom includes the right of appropriating material things. But, if Freedom be understood strictly, I do not see that it implies more than his right to non-interference while actually using such things as can only be used by one person at once: the right to prevent others from using at any future time anything that an individual has once seized seems an interference with the free action of others beyond what is needed to secure the freedom, strictly speaking, of the appropriator. It may perhaps be said that a man, in appropriating a particular thing, does not interfere with the freedom of others, because the rest of the world is still open to them. But others may want just what he has appropriated: and they may not be able to find anything so good at all, or at least without much labour and search; for many of the instruments and materials of comfortable living are limited in quantity. This argument applies especially to property in land: and it is to be observed that, in this case, there is a further difficulty in determining how much a man is to be allowed to appropriate by ‘first occupation.’ If it be said that a man is to be understood to occupy what he is able to use, the answer is obvious that the use of land by any individual may vary almost indefinitely in extent, while diminishing proportionally in intensity. For instance, it would surely be a paradoxical deduction from the principle of Freedom to maintain that an individual had a right to exclude others from pasturing sheep on any part of the land over which his hunting expeditions could extend.[214] But if so can it be clear that a shepherd has such a right against one who wishes to till the land, or that one who is using the surface has a right to exclude a would-be miner? I do not see how the deduction is to be made out. Again, it may be disputed whether the right of Property, as thus derived, is to include the right of controlling the disposal of one’s possessions after death. For this to most persons seems naturally bound up with ownership: yet it is paradoxical to say that we interfere with a man’s freedom of action by anything that we may do after his death to what he owned during his life: and jurists have often treated this right as purely conventional and not therefore included in ‘natural law.’

Other difficulties might be raised: but we need not pursue them, for if Freedom be taken simply to mean that one man’s actions are to be as little as possible restrained by others, it is obviously more fully realised without appropriation. And if it be said that it includes, beside this, facility and security in the gratification of desires, and that it is Freedom in this sense that we think should be equally distributed, and that this cannot be realised without appropriation; then it may be replied, that in a society where nearly all material things are already appropriated, this kind of Freedom is not and cannot be equally distributed. A man born into such a society, without inheritance, is not only far less free than those who possess property, but he is less free than if there had been no appropriation. It may be said[215] that, having freedom of contract, he will give his services in exchange for the means of satisfying his wants; and that this exchange must necessarily give him more than he could have got if he had been placed in the world by himself; that, in fact, any human society always renders the part of the earth that it inhabits more capable of affording gratification of desires to each and all of its later-born members than it would otherwise be. But however true this may be as a general rule, it is obviously not so in all cases: as men are sometimes unable to sell their services at all, and often can only obtain in exchange for them an insufficient subsistence. And, even granting it to be true, it does not prove that society, by appropriation, has not interfered with the natural freedom of its poorer members: but only that it compensates them for such interference, and that the compensation is adequate: and it must be evident that if compensation in the form of material commodities can be justly given for an encroachment on Freedom, the realisation of Freedom cannot be the one ultimate end of distributive Justice.

§ 5. It seems, then, that though Freedom is an object of keen and general desire, and an important source of happiness, both in itself and indirectly from the satisfaction of natural impulses which it allows, the attempt to make it the fundamental notion of theoretical Jurisprudence is attended with insuperable difficulties: and that even the Natural Rights which it claims to cover cannot be brought under it except in a very forced and arbitrary manner.[216] But further, even if this were otherwise, an equal distribution of Freedom does not seem to exhaust our notion of Justice. Ideal Justice, as we commonly conceive it, seems to demand that not only Freedom but all other benefits and burdens should be distributed, if not equally, at any rate justly,--Justice in distribution being regarded as not identical with Equality, but merely exclusive of arbitrary inequality.

How, then, shall we find the principle of this highest and most comprehensive ideal?

We shall be led to it, I think, by referring again to one of the grounds of obligation to render services, which was noticed in the last chapter: the claim of Gratitude. It there appeared that we have not only a natural impulse to requite benefits, but also a conviction that such requital is a duty, and its omission blameworthy, to some extent at least; though we find it difficult to define the extent. Now it seems that when we, so to say, universalise this impulse and conviction, we get the element in the common view of Justice, which we are now trying to define. For if we take the proposition ‘that good done to any individual ought to be requited by him,’ and leave out the relation to the individual in either term of the proposition, we seem to have an equally strong conviction of the truth of the more general statement ‘that good deeds ought to be requited.’[217] And if we take into consideration all the different kinds and degrees of services, upon the mutual exchange of which society is based, we get the proposition ‘that men ought to be rewarded in proportion to their deserts.’ And this would be commonly held to be the true and simple principle of distribution in any case where there are no claims arising from Contract or Custom to modify its operation.

For example, it would be admitted that--if there has been no previous arrangement--the profits of any work or enterprise should be divided among those who have contributed to its success in proportion to the worth of their services. And it may be observed, that some thinkers maintain the proposition discussed in the previous section--that Law ought to aim at securing the greatest possible Freedom for each individual--not as absolute and axiomatic, but as derivative from the principle that Desert ought to be requited; on the ground that the best way of providing for the requital of Desert is to leave men as free as possible to exert themselves for the satisfaction of their own desires, and so to win each his own requital. And this seems to be really the principle upon which the Right of Property is rested, when it is justified by the proposition that ‘every one has an exclusive right to the produce of his labour.’ For on reflection it is seen that no labour really ‘produces’ any material thing, but only adds to its value: and we do not think that a man can acquire a right to a material thing belonging to another, by spending his labour on it--even if he does so in the bona fide belief that it is his own property--but only to adequate compensation for his labour; this, therefore, is what the proposition just quoted must mean. The principle is, indeed, sometimes stretched to explain the original right of property in materials, as being in a sense ‘produced’ (i.e. found) by their first discoverer;[218] but here again, reflection shows that Common Sense does not grant this (as a moral right) absolutely, but only in so far as it appears to be not more than adequate compensation for the discoverer’s trouble. For example, we should not consider that the first finder of a large uninhabited region had a moral right to appropriate the whole of it. Hence this justification of the right of property refers us ultimately to the principle ‘that every man ought to receive adequate requital for his labour.’ So, again, when we speak of the world as justly governed by God, we seem to mean that, if we could know the whole of human existence, we should find that happiness is distributed among men according to their deserts. And Divine Justice is thought to be a pattern which Human Justice is to imitate as far as the conditions of human society allow.

This kind of Justice, as has been said, seems like Gratitude universalised: and the same principle applied to punishment may similarly be regarded as Resentment universalised; though the parallel is incomplete, if we are considering the present state of our moral conceptions. History shows us a time in which it was thought not only as natural, but as clearly right and incumbent on a man, to requite injuries as to repay benefits: but as moral reflection developed in Europe this notion was repudiated, so that Plato taught that it could never be right really to harm any one, however he may have harmed us. And this is the accepted doctrine in Christian societies, as regards requital by individuals of personal wrongs. But in its universalised form the old conviction still lingers in the popular view of Criminal Justice: it seems still to be widely held that Justice requires pain to be inflicted on a man who has done wrong, even if no benefit result either to him or to others from the pain. Personally, I am so far from holding this view that I have an instinctive and strong moral aversion to it: and I hesitate to attribute it to Common Sense, since I think that it is gradually passing away from the moral consciousness of educated persons in the most advanced communities: but I think it is still perhaps the more ordinary view.

This, then, is one element of what Aristotle calls Corrective Justice, which is embodied in criminal law. It must not be confounded with the principle of Reparation, on which legal awards of damages are based. We have already noticed this as a simple deduction from the maxim of general Benevolence, which forbids us to do harm to our fellow-creatures: for if we have harmed them, we can yet approximately obey the maxim by giving compensation for the harm. Though here the question arises whether we are bound to make reparation for harm that has been quite blamelessly caused: and it is not easy to answer it decisively.[219] On the whole, I think we should condemn a man who did not offer some reparation for any serious injury caused by him to another--even if quite involuntarily caused, and without negligence: but perhaps we regard this rather as a duty of Benevolence--arising out of the general sympathy that each ought to have for others, intensified by this special occasion--than as a duty of strict Justice. If, however, we limit the requirement of Reparation, under the head of strict Justice, to cases in which the mischief repaired is due to acts or omissions in some degree culpable, a difficulty arises from the divergence between the moral view of culpability, and that which social security requires. Of this I will speak presently.[220] In any case there is now[221] no danger of confusion or collision between the principle of Reparative and that of Retributive Justice, as the one is manifestly concerned with the claims of the injured party, and the other with the deserts of the wrongdoer: though in the actual administration of Law the obligation of paying compensation for wrong may sometimes be treated as a sufficient punishment for the wrongdoer.

When, however, we turn again to the other branch of Retributive Justice, which is concerned with the reward of services, we find another notion, which I will call Fitness, often blended indistinguishably[222] with the notion of Desert, and so needing to be carefully separated from it; and when the distinction has been made, we see that the two are liable to come into collision. I do not feel sure that the principle of ‘distribution according to Fitness’ is found, strictly speaking, in the analysis of the ordinary notion of Justice: but it certainly enters into our common conception of the ideal or perfectly rational order of society, as regards the distribution both of instruments and functions, and (to some extent at least) of other sources of happiness. We certainly think it reasonable that instruments should be given to those who can use them best, and functions allotted to those who are most competent to perform them: but these may not be those who have rendered most services in the past. And again, we think it reasonable that particular material means of enjoyment should fall to the lot of those who are susceptible of the respective kinds of pleasure; as no one would think of allotting pictures to a blind man, or rare wines to one who had no taste: hence we should probably think it fitting that artists should have larger shares than mechanics in the social distribution of wealth, though they may be by no means more deserving. Thus the notions of Desert and Fitness appear at least occasionally conflicting; but perhaps, as I have suggested, Fitness should rather be regarded as a utilitarian principle of distribution, inevitably limiting the realisation of what is abstractly just, than as a part of the interpretation of Justice proper: and it is with the latter that we are at present concerned. At any rate it is the Requital of Desert that constitutes the chief element of Ideal Justice, in so far as this imports something more than mere Equality and Impartiality. Let us then examine more closely wherein Desert consists; and we will begin with Good Desert or Merit, as being of the most fundamental and permanent importance; for we may hope that crime and its punishment will decrease and gradually disappear as the world improves, but the right or best distribution of the means of wellbeing is an object that we must always be striving to realise.

§ 6. And first, the question which we had to consider in defining Gratitude again recurs: whether, namely, we are to apportion the reward to the effort made, or to the results attained. For it may be said that the actual utility of any service must depend much upon favourable circumstances and fortunate accidents, not due to any desert of the agent: or again, may be due to powers and skills which were connate, or have been developed by favourable conditions of life, or by good education, and why should we reward him for these? (for the last-mentioned we ought rather to reward those who have educated him). And certainly it is only in so far as moral excellences are exhibited in human achievements that they are commonly thought to be such as God will reward. But by drawing this line we do not yet get rid of the difficulty. For it may still be said that good actions are due entirely, or to a great extent, to good dispositions and habits, and that these are partly inherited and partly due to the care of parents and teachers; so that in rewarding these we are rewarding the results of natural and accidental advantages, and it is unreasonable to distinguish these from others, such as skill and knowledge, and to say that it is even ideally just to reward the one and not the other. Shall we say, then, that the reward should be proportionate to the amount of voluntary effort for a good end? But Determinists will say that even this is ultimately the effect of causes extraneous to the man’s self. On the Determinist view, then, it would seem to be ideally just (if anything is so) that all men should enjoy equal amounts of happiness: for there seems to be no justice in making A happier than B, merely because circumstances beyond his own control have first made him better. But why should we not, instead of ‘all men,’ say ‘all sentient beings’? for why should men have more happiness than any other animal? But thus the pursuit of ideal justice seems to conduct us to such a precipice of paradox that Common Sense is likely to abandon it. At any rate the ordinary idea of Desert has thus altogether vanished.[223] And thus we seem to be led to the conclusion which I anticipated in Book i. chap. v.: that in this one department of our moral consciousness the idea of Free Will seems involved in a peculiar way in the moral ideas of Common Sense, since if it is eliminated the important notions of Desert or Merit and Justice require material modification.[224] At the same time, the difference between Determinist and Libertarian Justice can hardly have any practical effect. For in any case it does not seem possible to separate in practice that part of a man’s achievement which is due strictly to his free choice from that part which is due to the original gift of nature and to favouring circumstances:[225] so that we must necessarily leave to providence the realisation of what we conceive as the theoretical ideal of Justice, and content ourselves with trying to reward voluntary actions in proportion to the worth of the services intentionally rendered by them.

If, then, we take as the principle of ideal justice, so far as this can be practically aimed at in human society, the requital of voluntary services in proportion to their worth, it remains to consider on what principle or principles the comparative worth of different services is to be rationally estimated. There is no doubt that we commonly assume such an estimate to be possible; for we continually speak of the ‘fair’ or ‘proper’ price of any kind of services as something generally known, and condemn the demand for more than this as extortionate. It may be said that the notion of Fairness or Equity which we ordinarily apply in such judgments is to be distinguished from that of Justice; Equity being in fact often contrasted with strict Justice, and conceived as capable of coming into collision with it. And this is partly true: but I think the wider and no less usual sense of the term Justice, in which it includes Equity or Fairness, is the only one that can be conveniently adopted in an ethical treatise: for in any case where Equity comes into conflict with strict justice, its dictates are held to be in a higher sense just, and what ought to be ultimately carried into effect in the case considered--though not, perhaps, by the administrators of law. I treat Equity, therefore, as a species of Justice; though noting that the former term is more ordinarily used in cases where the definiteness attainable is recognised as somewhat less than in ordinary cases of rightful claims arising out of law or contract. On what principle, then, can we determine the “fair” or “equitable” price of services? When we examine the common judgments of practical persons in which this judgment occurs, we find, I think, that the ‘fair’ in such cases is ascertained by a reference to analogy and custom, and that any service is considered to be ‘fairly worth’ what is usually given for services of the kind. Hence this element of the notion of Justice may seem, after all, to resolve itself into that discussed in § 2: and in some states of society it certainly appears that the payment to be given for services is as completely fixed by usage as any other customary duty, so that it would be a clear disappointment of normal expectation to deviate from this usage. But probably no one in a modern civilised community would maintain in its full breadth this identification of the Just with the Usual price of services: and so far as the judgments of practical persons may seem to imply this, I think it must be admitted that they are superficial or merely inadvertent, and ignore the established mode of determining the market prices of commodities by free competition of producers and traders. For where such competition operates the market value rises and falls, and is different at different places and times; so that no properly instructed person can expect any fixity in it, or complain of injustice merely on account of the variations in it.

Can we then say that ‘market value’ (as determined by free competition) corresponds to our notion of what is ideally just?

This is a question of much interest, because this is obviously the mode of determining the remuneration of services that would be universal in a society constructed on the principle previously discussed, of securing the greatest possible Freedom to all members of the community. It should be observed that this, which we may call the Individualistic Ideal, is the type to which modern civilised communities have, until lately, been tending to approximate: and it is therefore very important to know whether it is one which completely satisfies the demands of morality; and whether Freedom, if not an absolute end or First Principle of abstract Justice, is still to be sought as the best means to the realisation of a just social order by the general requital of Desert.

At first sight it seems plausible to urge that the ‘market value’ represents the estimate set upon anything by mankind generally, and therefore gives us exactly that ‘common sense’ judgment respecting value which we are now trying to find. But on examination it seems likely that the majority of men are not properly qualified to decide on the value of many important kinds of services, from imperfect knowledge of their nature and effects; so that, as far as these are concerned, the true judgment will not be represented in the market-place. Even in the case of things which a man is generally able to estimate, it may be manifest in a particular case that he is ignorant of the real utility of what he exchanges; and in this case the ‘free’ contract hardly seems to be fair: though if the ignorance was not caused by the other party to the exchange, Common Sense is hardly prepared to condemn the latter as unjust for taking advantage of it. For instance, if a man has discovered by a legitimate use of geological knowledge and skill that there is probably a valuable mine on land owned by a stranger, reasonable persons would not blame him for concealing his discovery until he had bought the mine at its market value: yet it could not be said that the seller got what it was really worth. In fact Common Sense is rather perplexed on this point: and the rationale of the conclusion at which it arrives, must, I conceive, be sought in economic considerations, which take us quite beyond the analysis of the common notion of Justice.[226]

Again, there are social services recognised as highly important which generally speaking have no price in any market, on account of the indirectness and uncertainty of their practical utility: as, for instance, scientific discoveries. The extent to which any given discovery will aid industrial invention is so uncertain, that even if the secret of it could be conveniently kept, it would not usually be profitable to buy it.

But even if we confine our attention to products and services generally marketable, and to bargains thoroughly understood on both sides, there are still serious difficulties in the way of identifying the notions of ‘free’ and ‘fair’ exchange. Thus, where an individual, or combination of individuals, has the monopoly of a certain kind of services, the market-price of the aggregate of such services can under certain conditions be increased by diminishing their total amount; but it would seem absurd to say that the social Desert of those rendering the services is thereby increased, and a plain man has grave doubts whether the price thus attained is fair. Still less is it thought fair to take advantage of the transient monopoly produced by emergency: thus, if I saw Crœsus drowning and no one near, it would not be held fair in me to refuse to save him except at the price of half his wealth. But if so, can it be fair for any class of persons to gain competitively by the unfavourable economic situation of another class with which they deal? And if we admit that it would be unfair, where are we to draw the line? For any increase of the numbers of a class renders its situation for bargaining less favourable: since the market price of different services depends partly upon the ease or difficulty of procuring them--as Political Economists say, ‘on the relation between the supply of services and the demand for them’--and it does not seem that any individual’s social Desert can properly be lessened merely by the increased number or willingness of others rendering the same services. Nor, indeed, does it seem that it can be decreased by his own willingness, for it is strange to reward a man less because he is zealous and eager in the performance of his function; yet in bargaining the less willing always has the advantage. And, finally, it hardly appears that the social worth of a man’s service is necessarily increased by the fact that his service is rendered to those who can pay lavishly; but his reward is certainly likely to be greater from this cause.

Such considerations as these have led some political thinkers to hold that Justice requires a mode of distributing payment for services, entirely different from that at present effected by free competition: and that all labourers ought to be paid according to the intrinsic value of their labour as estimated by enlightened and competent judges. If the Socialistic Ideal--as we may perhaps call it--could be realised without counter-balancing evils, it would certainly seem to give a nearer approximation to what we conceive as Divine Justice than the present state of society affords. But this supposes that we have found the rational method of determining value: which, however, is still to seek. Shall we say that these judges are to take the value of a service as proportionate to the amount of happiness produced by it? If so, the calculation is, of course, exposed to all the difficulties of the hedonistic method discussed in Book ii.: but supposing these can be overcome, it is still hard to say how we are to compare the value of different services that must necessarily be combined to produce happy life. For example, how shall we compare the respective values of necessaries and luxuries? for we may be more sensible of the enjoyment derived from the latter, but we could not have this at all without the former. And, again, when different kinds of labour co-operate in the same production, how are we to estimate their relative values? for even if all mere unskilled labour may be brought to a common standard, this seems almost impossible in the case of different kinds of skill. For how shall we compare the labour of design with that of achievement? or the supervision of the whole with the execution of details? or the labour of actually producing with that of educating producers? or the service of the savant who discovers a new principle, with that of the inventor who applies it?

I do not see how these questions, or the difficulties noticed in the preceding paragraph, can be met by any analysis of our common notion of Justice. To deal with such points at all satisfactorily we have, I conceive, to adopt quite a different line of reasoning: we have to ask, not what services of a certain kind are intrinsically worth, but what reward can procure them and whether the rest of society gain by the services more than the equivalent reward. We have, in short, to give up as impracticable the construction of an ideally just social order,[227] in which all services are rewarded in exact proportion to their intrinsic value. And, for similar reasons, we seem forced to conclude, more generally, that it is impossible to obtain clear premises for a reasoned method of determining exactly different amounts of Good Desert. Indeed, perhaps, Common Sense scarcely holds such a method to be possible: for though it considers Ideal Justice to consist in rewarding Desert, it regards as Utopian any general attempt to realise this ideal in the social distribution of the means of happiness. In the actual state of society it is only within a very limited range that any endeavour is made to reward Good Desert. Parents attempt this to some extent in dealing with their children, and the State in rewarding remarkable public services rendered by statesmen, soldiers, etc.: but reflection on these cases will show how very rough and imperfect are the standards used in deciding the amount due. And ordinarily the only kind of Justice which we try to realise is that which consists in the fulfilment of contracts and definite expectations; leaving the general fairness of Distribution by Bargaining to take care of itself.

§ 7. When we pass to consider the case of Criminal Justice, we find, in the first place, difficulties corresponding to those which we have already noticed. We find, to begin, a similar implication and partial confusion of the ideas of Law and Justice. For, as was said, by ‘bringing a man to Justice’ we commonly mean ‘inflicting legal punishment’ on him: and we think it right that neither more nor less than the penalty prescribed by law should be executed, even though we may regard the legal scale of punishment as unjust. At the same time, we have no such perplexity in respect of changes in the law as occurs in the case of Civil Justice; for we do not think that a man can acquire, by custom, prescriptive rights to over-lenient punishment, as he is thought to do to an unequal distribution of liberties and privileges. If now we investigate the ideal of Criminal Justice, as intuitively determined, we certainly find that in so far as punishment is not regarded as merely preventive,[228] it is commonly thought that it ought to be proportioned to the gravity of crime.[229] Still, when we endeavour to make the method of apportionment perfectly rational and precise, the difficulties seem at least as great as in the case of Good Desert. For, first, the assumption of Free Will seems necessarily to come in here also; since if a man’s bad deeds are entirely caused by nature and circumstances, it certainly appears, as Robert Owen urged, that he does not properly deserve to be punished for them; Justice would rather seem to require us to try to alter the conditions under which he acts. And we actually do punish deliberate offences more than impulsive, perhaps as implying a more free choice of evil. Again, we think that offences committed by persons who have had no moral training, or a perverted training, are really less criminal; at the same time it is commonly agreed that men can hardly remit punishment on this account. Again the gravity--from a moral point of view--of a crime seems to be at least much reduced, if the motive be laudable, as when a man kills a villain whose crimes elude legal punishment, or heads a hopeless rebellion for the good of his country: still it would be paradoxical to affirm that we ought to reduce punishment proportionally: Common Sense would hold that--whatever God may do--men must, generally speaking, inflict severe punishment for any gravely mischievous act forbidden by law which has been intentionally done, even though it may have been prompted by a good motive.

But even if we neglect the motive, and take the intention only into account, it is not easy to state clear principles for determining the gravity of crimes. For sometimes, as in the case of the patriotic rebel, the intention of the criminal is to do what is right and good: and in many cases, though he knows that he is doing wrong, he does not intend to cause any actual harm to any sentient being; as when a thief takes what he thinks will not be missed. Again, we do not commonly think that a crime is rendered less grave by being kept perfectly secret; and yet a great part of the harm done by a crime is the ‘secondary evil’ (as Bentham calls it) of the alarm and insecurity which it causes; and this part is cut off by complete secrecy. It may be replied that this latter difficulty is not a practical one; because we are not called upon to punish a crime until it has been discovered, and then the secondary evil has been caused, and is all the greater because of the previous secrecy. But it remains true that it was not designed for discovery; and therefore that this part of the evil caused by the crime was not intended by the criminal. And if we say that the heinousness of the crime depends on the loss of happiness that would generally be caused by such acts if they were allowed to go unpunished, and that we must suppose the criminal to be aware of this; we seem to be endeavouring to force a utilitarian theory into an intuitional form by means of a legal fiction.

We have hitherto spoken of intentional wrong-doing: but positive law awards punishment also for harm that is due to rashness or negligence; and the justification of this involves us in further difficulties. Some jurists seem to regard rashness and negligence as positive states of mind, in which the agent consciously refuses the attention or reflection which he knows he ought to give; and no doubt this sort of wilful recklessness does sometimes occur, and seems as properly punishable as if the resulting harm had been positively intended. But the law as actually administered does not require evidence that this was the agent’s state of mind (which indeed in most cases it would be impossible to give): but is content with proof that the harm might have been prevented by such care as an average man would have shown under the circumstances. And most commonly by ‘carelessness’ we simply mean a purely negative psychological fact, i.e. that the agent did not perform certain processes of observation or reflection; it is therefore at the time strictly involuntary, and so scarcely seems to involve ill-desert. It may be said perhaps that though the present carelessness is not blameworthy, the past neglect to cultivate habits of care is so. But in many individual instances we cannot reasonably infer even this past neglect; and in such cases the utilitarian theory of punishment, which regards it as a means of preventing similar harmful acts in the future, seems alone applicable. Similar difficulties arise, as was before hinted (p. 282), in determining the limits within which Reparation is due; that is, on the view that it is not incumbent on us to make compensation for all harm caused by our muscular actions, but only for harm which--if not intentional--was due to our rashness or negligence.

The results of this examination of Justice may be summed up as follows. The prominent element in Justice as ordinarily conceived is a kind of Equality: that is, Impartiality in the observance or enforcement of certain general rules allotting good or evil to individuals. But when we have clearly distinguished this element, we see that the definition of the virtue required for practical guidance is left obviously incomplete. Inquiring further for the right general principles of distribution, we find that our common notion of Justice includes--besides the principle of Reparation for injury--two quite distinct and divergent elements. The one, which we may call Conservative Justice, is realised (1) in the observance of Law and Contracts and definite understandings, and in the enforcement of such penalties for the violation of these as have been legally determined and announced; and (2) in the fulfilment of natural and normal expectations. This latter obligation, however, is of a somewhat indefinite kind. But the other element, which we have called Ideal Justice, is still more difficult to define; for there seem to be two quite distinct conceptions of it, embodied respectively in what we have called the Individualistic and the Socialistic Ideals of a political community. The first of these takes the realisation of Freedom as the ultimate end and standard of right social relations: but on examining it closer we find that the notion of Freedom will not give a practicable basis for social construction without certain arbitrary[230] definitions and limitations: and even if we admit these, still a society in which Freedom is realised as far as is feasible does not completely suit our sense of Justice. Prima facie, this is more satisfied by the Socialistic Ideal of Distribution, founded on the principle of requiting Desert: but when we try to make this principle precise, we find ourselves again involved in grave difficulties; and similar perplexities beset the working out of rules of Criminal Justice on the same principle.

FOOTNOTES:

[204] How far an independent principle of Justice is required for the Utilitarian method will be hereafter considered. (Book iv. chap. i.)Return to passage

[205] Aristotle, in expounding the virtue of Δικαιοσύνη, which corresponds to our Justice, notices that the word has two meanings; in the wider of which it includes in a manner all Virtue, or at any rate the social side or aspect of Virtue generally. The word ‘Justice’ does not appear to be used in English in this comprehensive manner (except occasionally in religious writings, from the influence of the Greek word as used in the New Testament): although the verb “to justify” seems to have this width of meaning; for when I say that one is “justified” in doing so and so, I mean no more than that such conduct is right for him. In the present discussion, at any rate, I have confined myself to the more precise signification of the term.Return to passage

[206] I ought to say that, in my view, this only applies to taxes in the narrower sense in which they are distinguished from payments for services received by individuals from Government. In the case of these latter, I conceive that Justice is rather held to lie in duly proportioning payment to amount of service received. Some persons have held that all payments made to Government ought to be determined on this principle: and this view seems to me to be consistent with the individualistic ideal of political order, which I shall presently examine: but, as I have elsewhere tried to show (Princ. of Pol. Econ. Book iii. chap. viii.), there is an important department of Governmental expenditure to which this principle is not applicable.Return to passage

[207] It may be well to notice a case in which the very equality of application, which is, as has been said, implied in the mere idea of a law couched in general terms, is felt to be unjust. This is the case where the words of a statute, either from being carelessly drawn, or on account of the inevitable defects of even the most precise terminology, include (or exclude) persons and circumstances which are clearly not included in (or excluded from) the real intent and purpose of the law. In this case a particular decision, strictly in accordance with a law which generally considered is just, may cause extreme injustice: and so the difference between actual Law and Justice is sharply brought out. Still we cannot in this way obtain principles for judging generally of the justice of laws.Return to passage

[208] It should be observed that we cannot even say, in treating of the private conduct of individuals, that all arbitrary inequality is recognised as unjust: it would not be commonly thought unjust in a rich bachelor with no near relatives to leave the bulk of his property in providing pensions exclusively for indigent red-haired men, however unreasonable and capricious the choice might appear.Return to passage

[209] It may be observed that sometimes claims generated in this way have legal validity; as when a right of way is established without express permission of the landowner, merely by his continued indulgence.Return to passage

[210] This is the case even, as I say, when laws are altered lawfully: still more after any exceptional crisis at which there has occurred a rupture of political order: for then the legal claims arising out of the new order which is thus rooted in disorder conflict with those previously established in a manner which admits of no theoretical solution: it can only be settled by a rough practical compromise. See next chapter, § 3.Return to passage

[211] Book i. chap. vi. § 2.Return to passage

[212] It is characteristic of an unprogressive society that in it these two points of view are indistinguishable; the Jural Ideal absolutely coincides with the Customary, and social perfection is imagined to consist in the perfect observance of a traditional system of rules.Return to passage

[213] This question, how far the conception of Freedom involves unlimited right to limit Freedom by free contract, will meet us again in the next chapter, when we consider the general duty of obedience to Law.Return to passage

[214] It has often been urged as a justification for expropriating savages from the land of new colonies that tribes of hunters have really no moral right to property in the soil over which they hunt.Return to passage

[215] This is the argument used by optimistic political economists such as Bastiat.Return to passage

[216] The further consideration of Political Freedom, with which we shall be occupied in the next chapter, will afford additional illustrations of the difficulties involved in the notion.Return to passage

[217] If the view given in the text be sound, it illustrates very strikingly the difference between natural instincts and moral intuitions. For the impulse to requite a service is, on its emotional side, quite different from that which prompts us to claim the fruits of our labour, or “a fair day’s wages for a fair day’s work.” Still, our apprehension of the duty of Gratitude seems capable of being subsumed under the more general intuition ‘that desert ought to be requited.’Return to passage

[218] It certainly requires a considerable strain to bring the ‘right of First Discovery’ under the notion of ‘right to the produce of one’s labour.’ Hence Locke and others have found it necessary to suppose, as the ultimate justification of the former right, ‘a tacit consent’ of mankind in general that all things previously unappropriated shall belong to the first appropriator. But this must be admitted to be a rather desperate device of ethico-political construction: on account of the fatal facility with which it may be used to justify almost any arbitrariness in positive law.Return to passage

[219] The reader will find an interesting illustration of the perplexity of Common Sense on this point in Mr. O. W. Holmes, Junior’s, book on The Common Law, chap. iii., where the author gives a penetrating discussion of the struggle, in the development of the doctrine of torts in English Law, between two opposing views: (1) that “the risk of a man’s conduct is thrown upon him as the result of some moral short-coming,” and (2) that “a man acts at his peril always, and wholly irrespective of the state of his consciousness upon the matter.” The former is the view that has in the main prevailed in English Law; and this seems to me certainly in harmony with the Common Sense of mankind, so far as legal liability is concerned; but I do not think that the case is equally clear as regards moral obligation.Return to passage

[220] Cf. post, pp. 292-3. It may be added that there is often a further difficulty in ascertaining the amount of compensation due: for this frequently involves a comparison of things essentially disparate, and there are some kinds of harm which it seems impossible to compensate.Return to passage

[221] In the earlier stage of moral development, referred to in the preceding paragraph, retribution inflicted on the wrongdoer was regarded as the normal mode of reparation to the person injured. But this view is contrary to the moral Common Sense of Christian Societies.Return to passage

[222] I think the term “merit” often blends the two notions, as when we speak of “promotion by merit.” By moralists, however, “merit” is generally used as exactly equivalent to what I have called “desert.”Return to passage

[223] The only tenable Determinist interpretation of Desert is, in my opinion, the Utilitarian: according to which, when a man is said to deserve reward for any services to society, the meaning is that it is expedient to reward him, in order that he and others may be induced to render similar services by the expectation of similar rewards. Cf. post, Book iv. chap. iii. § 4.Return to passage

[224] Perhaps we may partly attribute to the difficulties above discussed, that the notion of Desert has sometimes dropped out of the ideal of Utopian reconstructors of society, and ‘Equality of Happiness’ has seemed to be the only end. Justice, it has been thought, prescribes simply that each should have an equal share of happiness, as far as happiness depends on the action of others. But there seems to be much difficulty in working this out: for (apart from the considerations of Fitness above mentioned) equal happiness is not to be attained by equal distribution of objects of desire. For some require more and some less to be equally happy. Hence, it seems, we must take differences of needs into consideration. But if merely mental needs are included (as seems reasonable) we should have to give less to cheerful, contented, self-sacrificing people than to those who are naturally moody and exigeant, as the former can be made happy with less. And this is too paradoxical to recommend itself to Common Sense.Return to passage

[225] No doubt, it would be possible to remove, to some extent, the inequalities that are attributable to circumstances, by bringing the best education within the reach of all classes, so that all children might have an equal opportunity of being selected and trained for any functions for which they seemed to be fit: and this seems to be prescribed by ideal justice, in so far as it removes or mitigates arbitrary inequality. Accordingly in those ideal reconstructions of society, in which we may expect to find men’s notions of abstract justice exhibited, such an institution as this has generally found a place. Still, there will be much natural inequality which we cannot remove or even estimate.Return to passage

[226] Cf. post, Book iv. chap. iii. § 4.Return to passage

[227] It is not perhaps necessary that I should here enlarge on the practical obstacles in the way of any attempt to realise such an ideal system.Return to passage

[228] I have already expressed my opinion that this Utilitarian view of punishment is gradually tending to prevail; but I do not think that it has yet prevailed.Return to passage

[229] Of course those who hold that the essence of Justice consists in securing external Freedom among the members of a community, and that punishment is only justified as a means to this end, naturally think that in awarding punishment we ought to consider merely its efficacy as such means. But this can scarcely be put forward as an interpretation of the common notion of Just Punishment.Return to passage

[230] By ‘arbitrary’ I mean such definitions and limitations as destroy the self-evidence of the principle; and, when closely examined, lead us to regard it as subordinate.Return to passage

VI. LAWS AND PROMISES

§ 1. In the discussion of Justice the moral obligations of obedience to Law and observance of Contract have been included, and have, indeed, appeared to be the most definite part of the complex system of private duties commonly included under that term. At the same time, as we have seen, there are some laws, the violation of which does not interfere with the rights of others, and therefore has not the characteristics of an act of Injustice. While again, the duty of Fidelity to promises is also commonly conceived as independent of any injury that might be done to the promisee by breaking it: for (e.g.) men ordinarily judge that promises to the dead, though they are beyond the reach of injury, ought to be kept: indeed, some would regard them as even more sacred than promises made to the living. It seems therefore desirable to examine the propositions ‘that Law ought to be obeyed’ and ‘that promises ought to be kept,’ considered as independent principles.

To begin with the former: how are we to ascertain what the Law is which, as is commonly thought, we are morally bound to obey, as such? It is plain that we cannot here distinguish Legal from other rules by considering the sanctions actually attached to them, as we had occasion to do in a previous chapter.[231] For commands issued by rebels and usurpers are held to have as such no general bindingness, though they may be enforced by judicial penalties; it would be generally agreed that so far as it is our duty to obey such commands this is solely in order to avoid the greater evils which might result to ourselves and others from our disobedience; and that the extent of such a duty must be determined by considerations of expediency. Nor, again, can we say that all commands even of a legitimate sovereign are to be regarded as Laws in the sense in which the term must be taken in the proposition that ‘laws ought to be obeyed’: since we all recognise that a rightful sovereign may command his subjects to do what is wrong, and that it is then their duty to disobey him. It seems therefore that for our present purpose we must define Laws to be Rules of Conduct laid down by a Rightful Authority, commanding within the limits of its authority.

There are therefore two questions to be settled, if the proposition that laws ought to be obeyed is to furnish practical guidance: (1) how we are to distinguish the Rightful Lawmaker--whether individual or body, and (2) how we are to ascertain the limits of this lawmaker’s authority. The questions should be distinguished; but, as we shall see, they can only be partially separated. Beginning with the first question, we may assume that the authority to make laws resides in some living man or men. No doubt in some societies, at some stages of their development, the whole or a part of the code of laws habitually observed, or at least recognised as binding, has been believed to be of divine or semi-divine institution; or perhaps from mere antiquity to possess a sanctity superior to that of any living authority, so as to be not legitimately alterable. But we hardly find this view in the Common Sense of civilised Europe, upon which we are now reflecting: at any rate in our societies there is not thought to be any portion of the definite prescriptions of positive law which, in virtue of its origin, is beyond the reach of alteration by any living authority.

Where then is this authority to be found?

In the answers commonly given to this question, the conflict between the Ideal and the Traditional or Customary, which has perplexed us in seeking the definition of Justice, meets us again in an even more complicated form. For not only do some say that obedience is always due to the traditionally legitimate authority in any country, while others maintain that an authority constituted in accordance with certain abstract principles is essentially legitimate, and that a nation has a right to claim that such an authority shall be established, even at the risk of civil strife and bloodshed: but often, too, the authority actually established is not even traditionally legitimate. So that we have to distinguish three claims to authority, each of which may come into conflict with either of the other two: (1) that of the Government held to be ideally or abstractly right, and such as ought to be established: (2) that of the Government de jure, according to the constitutional traditions in any given country: and (3) that of the de facto Government.

§ 2. Let us begin by considering the Ideal. Here I do not propose to consider all views as to the right constitution of supreme authority which speculative thinkers have put forward; but only such as have a prima facie claim to express the Common Sense of mankind on the subject. Of these the most important, and the most widely urged and admitted, is the principle that the Sovereign in any community can only be rightly constituted by the Consent of the Subjects. This, as was noticed in the preceding chapter, is involved in the adoption of Freedom as the ultimate end of political order: if no one originally owes anything to another except non-interference, he clearly ought only to be placed in the relation of Subject to Sovereign by his own consent. And thus, in order to reconcile the original right of Freedom with the actual duty of Law-observance, some supposition of a social compact appears necessary; by means of which Obedience to Law becomes merely a special application of the duty of keeping compacts.

In what way, then, are the terms of this fundamental compact to be known? No one now maintains the old view that the transition from the ‘natural’ to the ‘political’ state actually took place by means of an “original contract,” which conferred indelible legitimacy on some particular form of social organisation. Shall we say, then, that a man by remaining a member of a community enters into a ‘tacit undertaking’ to obey the laws and other commands imposed by the authority generally recognised as lawful in that community? In this way however the Ideal lapses into the Customary: and the most unlimited despotism, if established and traditional, might claim to rest on free consent as well as any other form of government: so that the principle of abstract Freedom would lead to the justification of the most unqualified concrete tyranny and servitude; and thus our theory would end by riveting men’s chains under pretence of exalting their freedom. If to avoid this result, we suppose that certain ‘Natural Rights’ are inalienable--or tacitly reserved in the tacit compact--and that laws are not strictly legitimate which deprive a man of these, we are again met by the difficulty of deducing these inalienable rights from any clear and generally accepted principles. For instance, as we have seen, a widely accepted opinion is that all such rights may be summed up in the notion of Freedom; but we have also seen that this principle is ambiguous, and especially that the right of private property as commonly recognised cannot be clearly deduced from it; and if so it would certainly be most paradoxical to maintain that no government can legitimately claim obedience for any commands except such as carry out the principle of protecting from interference the Freedom of the individuals governed. It has been thought that we can avoid this difficulty by constituting the supreme organ of government so that any law laid down by it will always be a law to which every person called on to obey it will have consented personally or by his representatives: and that a government so constituted, in which--to adopt Rousseau’s phrase--every one “obeys himself alone,” will completely reconcile freedom and order. But how is this result to be attained? Rousseau held that it could be attained by pure direct democracy, each individual subordinating his private will to the “general will” of the sovereign people of which all are equally members. But this “general will” must be practically the will of the majority: and it is paradoxical to affirm that the freedom and natural rights of a dissentient minority are effectively protected by establishing the condition that the oppressors must exceed the oppressed in number. Again, if the principle be absolute it ought to apply to all human beings alike: and if to avoid this absurdity we exclude children, an arbitrary line has to be drawn: and the exclusion of women, which even those who regard the suffrage as a natural right are often disposed to maintain, seems altogether indefensible. And to suppose--as some have done--that the ideal of “obeying oneself alone” can be even approximately realised by Representative Democracy, is even more patently absurd. For a Representative assembly is normally chosen only by a part of the nation, and each law is approved only by a part of the assembly: and it would be ridiculous to say that a man has assented to a law passed by a mere majority of an assembly against one member of which he has voted.

But, again, to lay down absolutely that the laws of any community ought to express the will of the majority of its members seems incompatible with the view so vigorously maintained by Socrates and his most famous disciples, that laws ought to be made by people who understand law-making. For though the majority of a representative assembly in a particular country at a particular time may be more fit to make laws for their country than any set of experts otherwise selected, it is certainly not self-evident that this will be universally the case. Yet surely the Socratic proposition (which is merely a special application of the principle noticed in the latter part of the preceding chapter, ‘that function should be allotted to the fittest’) has as much claim to be considered a primary intuition as the one that we have been discussing. Indeed, the secular controversy between Aristocracy and Democracy seems ultimately reducible to a conflict between those two principles: a conflict of which it is impossible to find a solution, so long as the argument remains in the a priori region.

§ 3. However, to discuss this exhaustively would carry us too far beyond the range of Ethics proper: but we may perhaps conclude that it is impossible to elicit from Common Sense any clear and certain intuitions as to the principles on which an ideal constitution should be constructed. And there is an equal want of agreement as to the intrinsic lawfulness of introducing such a constitution in violation of the traditional and established order in any community. For some think that a nation has a natural right to a government approximately conformed to the ideal, and that this right may be maintained by force in the last resort. Others, however, hold that, though the ideal polity may rightly be put forward and commended, and every means used to promote its realisation which the established government in any country permits,--still, rebellion can never be justifiable for this purpose alone. While others,--perhaps the majority,--would decide the question on grounds of expediency, balancing the advantages of improvement against the evils of disorder.

But further, as we saw, it is not so easy to say what the established government is. For sometimes an authority declared by law to be illegitimate issues ordinances and controls the administration of justice. The question then arises, how far obedience is due to such an authority. All are agreed that usurpation ought to be resisted; but as to the right behaviour towards an established government which has sprung from a successful usurpation, there is a great difference of opinion. Some think that it should be regarded as legitimate, as soon as it is firmly established: others that it ought to be obeyed at once, but under protest, with the purpose of renewing the conflict on a favourable opportunity: others think that this latter is the right attitude at first, but that a usurping government, when firmly established, loses its illegitimacy gradually, and that it becomes, after a while, as criminal to rebel against it as it was originally to establish it. And this last seems, on the whole, the view of Common Sense; but the point at which the metamorphosis is thought to take place can hardly be determined otherwise than by considerations of expediency.

But again, it is only in the case of an absolute government, where customary obedience is unconditionally due to one or more persons, that the fundamental difficulties of ascertaining the legitimacy of authority are of the simple kind just discussed. In a constitutionally governed state numerous other moral disagreements arise. For, in such a state, while it is of course held that the sovereign is morally bound to conform to the constitution,[232] it is still disputed whether the subjects’ obligation to obedience is properly conceived as conditional upon this conformity: and whether they have the moral right (1) to refuse obedience to an unconstitutional command; and (2) even to inflict on the sovereign the penalty of rebellion for violating the constitution. Again, in determining what the constitutional obligations really are we find much perplexity and disagreement, not merely as to the exact ascertainment of the relevant historical facts but as to the principles on which these facts ought to be treated. For the various limitations of sovereign authority comprised in the constitution have often been originally concessions extorted by fear from a sovereign previously absolute; and it is doubted how far such concessions are morally binding on the sovereign from whom they were wrested, and still more how far they are binding on succeeding sovereigns. Or, vice versâ, a people may have allowed liberties once exercised to fall into disuse; and it is doubted whether it retains the right of reclaiming them. And, generally, when a constitutional rule has to be elicited from a comparison of precedents, it is open to dispute whether a particular act of either party should be regarded as a constitutive precedent or as an illegitimate encroachment. And hence we find that, in constitutional countries, men’s view of what their constitution traditionally is has often been greatly influenced by their view of what it ideally ought to be: in fact, the two questions have rarely been kept quite distinct.

§ 4. But even in cases where we can ascertain clearly to what authority obedience is properly due, further difficulties are liable to arise when we attempt to define the limits of such obedience. For in modern society, as we have seen, all admit that any authority ought to be disobeyed which commands immoral acts; but this is one of those tautological propositions, so common in popular morality, which convey no real information; the question is, what acts there are which do not cease to be immoral when they have been commanded by a rightful authority. There seems to be no clear principle upon which these can be determined. It has sometimes been said that the Law cannot override definite duties; but the obligation of fidelity to contract is peculiarly definite, and yet we do not consider it right to fulfil a contract of which a law, passed subsequently to the making of the contract, has forbidden the execution. And, in fact, we do not find any practical agreement on this question, among persons who would not consciously accept the utilitarian method of deciding it by a balance of conflicting expediences. For some would say that the duties of the domestic relations must yield to the duty of law-observance, and that (e.g.) a son ought not to aid a parent actively or passively in escaping the punishment of crime: while others would consider this rule too inhuman to be laid down, and others would draw the line between assistance and connivance. And similarly, when a rightly constituted government commands acts unjust and oppressive to others; Common Sense recoils from saying either that all such commands ought to be obeyed or that all ought to be disobeyed; but--apart from utilitarian considerations--I can find no clear accepted principle for distinguishing those unjust commands of a legitimate government which ought to be obeyed from those which ought not to be obeyed. Again, some jurists hold that we are not strictly bound to obey laws, when they command what is not otherwise a duty, or forbid what is not otherwise a sin; on the ground that in the case of duties prescribed only by positive laws, the alternatives of obeying or submitting to the penalty are morally open to us.[233] Others, however, think this principle too lax; and certainly if a widespread preference of penalty to obedience were shown in the case of any particular law, the legislation in question would be thought to have failed. Nor, on the other hand, does there seem to be any agreement as to whether one is bound to submit to unjust penalties.

Since, then, on all these points there is found to be so much difference of opinion, it seems idle to maintain that there is any clear and precise axiom or first principle of Order, intuitively seen to be true by the common reason and conscience of mankind. There is, no doubt, a vague general habit of obedience to laws as such (even if bad laws), which may fairly claim the universal consensus of civilised society: but when we try to state any explicit principle corresponding to this general habit, the consensus seems to abandon us, and we are inevitably drawn into controversies which seem to admit of no solution except that offered by the utilitarian method.[234]

§ 5. We have next to treat of Good Faith, or Fidelity to Promises; which it is natural to consider in this place, because, as has been seen, the Duty of Law-observance has by some thinkers been based upon a prior duty of fulfilling a contract. The Social Contract however, as above examined, seems at best merely a convenient fiction, a logical artifice, by which the mutual jural relations of the members of a civilised community may be neatly expressed: and in stating the ethical principles of Common Sense, such a fiction would seem to be out of place. It must, however, be allowed that there has frequently been a close historical connection between the Duty of Law-observance and the duty of Good Faith. In the first place, a considerable amount of Constitutional Law at least, in certain ages and countries, has been established or confirmed by compacts expressly made between different sections of the community; who agree that for the future government shall be carried on according to certain rules. The duty of observing these rules thus presents itself as a Duty of Fidelity to compact. Yet more is this the case, when the question is one of imposing not a law, but a law-giver; whose authority is strengthened by the exaction of an oath of allegiance from his subjects generally or a representative portion of them. Still, even in such cases, it can only be by a palpable fiction that the mass of the citizens can be regarded as bound by an engagement which only a few of them have actually taken.

We may begin our examination of the duty of Keeping Promises by noticing that some moralists have classified or even identified it with Veracity. From one point of view there certainly seems to be an analogy between the two; as we fulfil the obligations of Veracity and Good Faith alike by effecting a correspondence between words and facts--in the one case by making fact correspond with statement, and in the other by making statement correspond with fact. But the analogy is obviously superficial and imperfect; for we are not bound to make our actions correspond with our assertions generally, but only with our promises. If I merely assert my intention of abstaining from alcohol for a year, and then after a week take some, I am (at worst) ridiculed as inconsistent: but if I have pledged myself to abstain, I am blamed as untrustworthy. Thus the essential element of the Duty of Good Faith seems to be not conformity to my own statement, but to expectations that I have intentionally raised in others.

On this view, however, the question arises whether, when a promise has been understood in a sense not intended by the promiser, he is bound to satisfy expectations which he did not voluntarily create. It is, I think, clear to Common Sense that he is so bound in some cases, if the expectation was natural and such as most men would form under the circumstances: but this would seem to be one of the more or less indefinite duties of Justice, and not properly of Good Faith, as there has not been, strictly speaking, any promise at all. The normal effect of language is to convey the speaker’s meaning to the person addressed (here the promiser’s to the promisee), and we always suppose this to have taken place when we speak of a promise. If through any accident this normal effect is missed, we may say that there is no promise, or not a perfect promise.

The moral obligation, then, of a promise is perfectly constituted when it is understood by both parties in the same sense. And by the term ‘promise’ we include not words only, but all signs and even tacit understandings not expressly signified in any way, if such clearly form a part of the engagement. The promiser is bound to perform what both he and the promisee understood to be undertaken.

§ 6. Is, then, this obligation intuitively seen to be independent and certain?

It is often said to be so: and perhaps we may say that it seems so to unreflective common sense. But reflection seems at least to disclose a considerable number of qualifications of the principle; some clear and precise, while others are more or less indefinite.

In the first place, thoughtful persons would commonly admit that the obligation of a promise is relative to the promisee, and may be annulled by him. And therefore if the promisee be dead, or otherwise inaccessible and incapable of granting release, there is constituted an exceptional case, of which the solution presents some difficulty.[235]

Secondly, a promise to do an immoral act is held not to be binding, because the prior obligation not to do the act is paramount; just as in law a contract to do what a man is not legally free to do, is invalid: otherwise one could evade any moral obligation by promising not to fulfil it, which is clearly absurd.[236] And the same principle is of course applicable to immoral omissions or forbearances to act: here however, a certain difficulty arises from the necessity of distinguishing between different kinds or degrees of obligatoriness in duties; since it is clear that a promise may sometimes make it obligatory to abstain from doing what it would otherwise have been a duty to do. Thus it becomes my duty not to give money to a meritorious hospital if I have promised all I can spare to an undeserving friend; though apart from the promise it might have been my duty to prefer the hospital to the friend. We have, however, already seen the difficulty of defining the limits of strict duty in many cases: thus (e.g.) it might be doubted how far the promise of aid to a friend ought to override the duty of giving one’s children a good education. The extent, therefore, to which the obligation of a promise overrides prior obligations becomes practically somewhat obscure.

§ 7. Further qualifications of the duty of fidelity to promises, the consideration of which is involved in more difficulty and dispute, are suggested when we examine more closely the conditions under which promises are made, and the consequences of executing them. In the first place, it is much disputed how far promises obtained by ‘fraud or force’ are binding. As regards fraud, if the promise was understood to be conditional on the truth of a statement which is found to be false, it is of course not binding, according to the principle I originally laid down. But a promise may be made in consequence of such a fraudulent statement, and yet made quite unconditionally. Even so, if it were clearly understood that it would not have been made but for the false statement,[237] probably most persons would regard it as not binding. But the false statement may be only one consideration among others, and it may be of any degree of weight; and it seems doubtful whether we should feel justified in breaking a promise, because a single fraudulent statement had been a part of the inducement to make it: still more if there has been no explicit assertion, but only a suggestion of what is false: or no falsehood at all, stated or suggested, but only a concealment of material circumstances. We may observe that certain kinds of concealment are treated as legitimate by our law: in most contracts of sale, for example, the law adopts the principle of ‘caveat emptor,’ and does not refuse to enforce the contract because the seller did not disclose defects in the article sold, unless by some words or acts he produced the belief that it was free from such defects. Still, this does not settle the moral question how far a promise is binding if any material concealment is shown to have been used to obtain it. We have also to consider the case in which an erroneous impression has not been wilfully produced, but was either shared by the promisee or produced in some way unintentionally. Perhaps in this last case most would say that the bindingness of the promise is not affected, unless it was expressly conditional. But on all these points Common Sense seems doubtful: and somewhat similar difficulties present themselves when we endeavour to define the obligation of promises partly obtained by some degree of illegal violence and intimidation.

§ 8. But, secondly, even if a promise has been made quite freely and fairly, circumstances may alter so much before the time comes to fulfil it, that the effects of keeping it may be quite other than those which were foreseen when it was made. In such a case probably all would agree that the promisee ought to release the promiser. But if he declines to do this, it seems difficult to decide how far the latter is bound. Some would say that he is in all cases: while others would consider that a considerable alteration of circumstances removed the obligation--perhaps adding that all engagements must be understood to be taken subject to a general understanding that they are only binding if material circumstances remain substantially the same. But such a principle very much impairs the theoretical definiteness of the duty.

This difficulty assumes a new aspect when we consider the case already noticed, of promises made to those who are now dead or temporarily out of the reach of communications. For then there is no means of obtaining release from the promise, while at the same time its performance may be really opposed to the wishes--or what would have been the wishes--of both parties. The difficulty is sometimes concealed by saying that it is our duty to carry out the ‘intention’ of the promise. For as so used the word Intention is, in common parlance, ambiguous: it may either mean the signification which the promisee attached to the terms employed, as distinct from any other signification which the common usage of words might admit: or it may include ulterior consequences of the performance of the promise, which he had in view in exacting it. Now we do not commonly think that the promiser is concerned with the latter. He certainly has not pledged himself to aim generally at the end which the promisee has in view, but only so far as some particular means are concerned: and if he considers these means not conducive to the end, he is not thereby absolved from his promise, under ordinary circumstances. But in the case supposed, when circumstances have materially changed, and the promise does not admit of revision, probably most persons would say that we ought to take into consideration the ulterior wishes of the promisee, and carry out what we sincerely think would have been his intention. But the obligation thus becomes very vague: since it is difficult to tell from a man’s wishes under one set of circumstances what he would have desired under circumstances varying from these in a complex manner: and practically this view of the obligation of a promise generally leads to great divergence of opinion. Hence it is not surprising that some hold that even in such a case the obligation ought to be interpreted strictly: while others go to the other extreme, and maintain that it ceases altogether.

But again, it was said that a promise cannot abrogate a prior obligation; and, as a particular application of this rule, it would be generally agreed that no promise can make it right to inflict harm on any one. On further consideration, however, it appears doubtful how far the persons between whom the promise passed are included in the scope of this restriction. For, first, it does not seem to be commonly held that a man is as strictly bound not to injure himself as he is to avoid harming others; and so it is scarcely thought that a promise is not binding because it was a foolish one, and will entail an amount of pain or burden on the promiser out of proportion to the good done to the promisee. Still, if we take an extreme case, where the sacrifice is very disproportionate to the gain, many conscientious persons would think that the promise ought rather to be broken than kept. And, secondly, a different question arises when we consider the possibility of injuring the promisee by fulfilling the promise. For when it is said to be wrong to do harm to any one, we do not commonly mean only what he thinks harm, but what really is so, though he may think it a benefit; for it seems clearly a crime for me to give any one what I know to be poison, even though he may be stubbornly convinced that it is wholesome food. But now suppose that I have promised A to do something, which, before I fulfil the promise, I see reason to regard as likely to injure him. The circumstances may be precisely the same, and only my view of them have changed. If A takes a different view and calls on me to fulfil the promise, is it right to obey him? Surely no one would say this in an extreme case, such as that of the poison. But if the rule does not hold for an extreme case, where can we draw the line? at what point ought I to give up my judgment to A, unless my own conviction is weakened? Common Sense seems to give no clear answer.

§ 9. I have laid down that a promise is binding in so far as it is understood on both sides similarly: and such an understanding is ordinarily attained with sufficient clearness, as far as the apprehension of express words or signs is concerned. Still, even here obscurity and misapprehension sometimes occur; and in the case of the tacit understandings with which promises are often complicated, a lack of definite agreement is not improbable. It becomes, therefore, of practical importance to decide the question previously raised: What duty rests on the promiser of satisfying expectations which he did not intend to create? I called this a duty not so much of Good Faith as of Justice, which prescribes the fulfilment of normal expectations. How then shall we determine what these are? The method by which we commonly ascertain them seems to be the following. We form the conception of an average or normal man, and consider what expectations he would form under the circumstances, inferring this from the beliefs and expectations which men generally entertain under similar circumstances. We refer, therefore, to the customary use of language, and customary tacit understandings current among persons in the particular relations in which promiser and promisee stand. Such customary interpretations and understandings are of course not obligatory upon persons entering into an engagement: but they constitute a standard which we think we may presume to be known to all men, and to be accepted by them, except in so for as it is explicitly rejected. If one of the parties to an engagement has deviated from this common standard without giving express notice, we think it right that he should suffer any loss that may result from the misunderstanding. This criterion then is generally applicable: but if custom is ambiguous or shifting it cannot be applied; and then the just claims of the parties become a problem, the solution of which is very difficult, if not strictly indeterminate.

So far we have supposed that the promiser can choose his own words, and that if the promisee finds them ambiguous he can get them modified, or (what comes to the same thing) explained, by the promiser. But we have now to observe that in the case of promises made to the community, as a condition of obtaining some office or emolument, a certain unalterable form of words has to be used if the promise is made at all. Here the difficulties of moral interpretation are much increased. It may be said, indeed, that the promise ought to be interpreted in the sense in which its terms are understood by the community: and, no doubt, if their usage is quite uniform and unambiguous, this rule of interpretation is sufficiently obvious and simple. But since words are often used in different ways by different members of the same society, and especially with different degrees of strictness and laxity, it often happens that a promise to the community cannot strictly be said to be understood in any one sense: the question therefore arises, whether the promiser is bound to keep it in the sense in which it will be most commonly interpreted, or whether he may select any of its possible meanings. And if the formula is one of some antiquity, it is further questioned, whether it ought to be interpreted in the sense which its words would now generally bear, or in that which they bore when it was drawn up; or, if they were then ambiguous, in the sense which appears to have been attached to them by the government that imposed the promise. On all these points it is difficult to elicit any clear view from Common Sense. And the difficulty is increased by the fact that there are usually strong inducements to make these formal engagements, which cause even tolerably conscientious persons to take them in a strained and unnatural sense. When this has been done continually by many persons, a new general understanding grows up as to the meaning of the engagements: sometimes they come to be regarded as ‘mere forms,’ or, if they do not reach this point of degradation, they are at least understood in a sense differing indefinitely from their original one. The question then arises, how far this process of gradual illegitimate relaxation or perversion can modify the moral obligation of the promise for a thoroughly conscientious person. It seems clear that when the process is complete, we are right in adopting the new understanding as far as Good Faith is concerned, even if it palpably conflicts with the natural meaning of language; although it is always desirable in such cases that the form of the promise should be changed to correspond with the changed substance. But when, as is ordinarily the case, the process is incomplete, since a portion of the community understands the engagement in the original strict sense, the obligation becomes difficult to determine, and the judgments of conscientious persons respecting it become divergent and perplexed.

To sum up the results of the discussion: it appears that a clear consensus can only be claimed for the principle that a promise, express or tacit, is binding, if a number of conditions are fulfilled: viz. if the promiser has a clear belief as to the sense in which it was understood by the promisee, and if the latter is still in a position to grant release from it, but unwilling to do so, if it was not obtained by force or fraud, if it does not conflict with definite prior obligations, if we do not believe that its fulfilment will be harmful to the promisee, or will inflict a disproportionate sacrifice on the promiser, and if circumstances have not materially changed since it was made. If any of these conditions fails, the consensus seems to become evanescent, and the common moral perceptions of thoughtful persons fall into obscurity and disagreement.

FOOTNOTES:

[231] Cf. ante, Book ii. chap. v. § 2.Return to passage

[232] It is perhaps hardly necessary that I should here notice the Hobbist doctrine, revived in a modified form by Austin, that “the power of the sovereign is incapable of [legal] limitation.” For no one now maintains pure Hobbism: and Austin is as far as possible from meaning that there cannot be an express or tacit understanding between Sovereign and Subjects, the violation of which by the former may make it morally right for the latter to rebel. In fact, as used by him, Hobbes’ doctrine reduces itself to the rather unimportant proposition that a sovereign will not be punished for unconstitutional conduct through the agency of his own law-courts, so long as he remains sovereign. I may take this opportunity of observing that Austin’s definition of Law is manifestly unsuited for our present purpose: since a law, in his view, is not a command that ought to be obeyed, but a command for the violation of which we may expect a particular kind of punishment.Return to passage

[233] Cf. Blackstone, Introduction, § 2. “In relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance, here I apprehend conscience is no further concerned, than by directing a submission to the penalty in case of our breach of those laws ... the alternative is offered to every man, ‘either abstain from this or submit to such a penalty.’”Return to passage

[234] Into the ethical difficulties peculiar to International Law, I have not thought it worth while to enter.Return to passage

[235] Vows to God constitute another exception: and it is thought by many that if these are binding, there must be some way in which God can be understood to grant release from them. But this it is beyond my province to discuss.Return to passage

[236] The case is somewhat different when the act has become immoral after the promise was made: still, here also, the prior duty of abstaining from it would be universally held to prevail.Return to passage

[237] What is here said of a ‘statement’ may be extended to any mode of producing a false impression.Return to passage

VII. THE CLASSIFICATION OF DUTIES--VERACITY

§ 1. It may easily seem that when we have discussed Benevolence, Justice, and the observance of Law and Contract, we have included in our view the whole sphere of social duty, and that whatever other maxims we find accepted by Common Sense must be subordinate to the principles which we have been trying to define.

For whatever we owe definitely to our fellow-men, besides the observance of special contracts, and of positive laws, seems--at least by a slight extension of common usage--to be naturally included under Justice: while the more indefinite obligations which we recognise seem to correspond to the goodwill which we think ought to exist among all members of the human family, together with the stronger affections appropriate to special relations and circumstances. And hence it may be thought that the best way of treating the subject would have been to divide Duty generally into Social and Self-regarding, and again to subdivide the former branch into the heads which I have discussed one by one; afterwards adding such minor details of duty as have obtained special names and distinct recognition. And this is perhaps the proper place to explain why I did not adopt this course. The division of duties into Social and Self-regarding, though obvious, and acceptable enough as a rough prima facie classification, does not on closer examination seem exactly appropriate to the Intuitional Method. For these titles naturally suggest that the happiness or well-being, of the agent or of others, is always the end and final determinant of right action: whereas the Intuitional doctrine is, that at least certain kinds of conduct are prescribed absolutely, without reference to their ulterior consequences. And if a more general meaning be given to the terms, and by Social duties we understand those which consist in the production of certain effects upon others, while in the Self-regarding we aim at producing certain effects upon ourselves, the division is still an unsuitable one. For these consequences are not clearly recognised in the enunciation of common rules of morality: and in many cases we produce marked effects both on ourselves and on others, and it is not easy to say which (in the view of Common Sense) are most important: and again, this principle of division would sometimes make it necessary to cut in two the class of duties prescribed under some common notion; as the same rule may govern both our social and our solitary conduct. Take, for example, the acts morally prescribed under the head of Courage. It seems clear that the prominence given to this Virtue in historic systems of morality has been due to the great social importance that must always attach to it, so long as communities of men are continually called upon to fight for their existence and well-being: but still the quality of bravery is the same essentially, whether it be exhibited for selfish or social ends.

It is no doubt true that when we examine with a view to definition the kinds of conduct commended or prescribed in any list of Virtues commonly recognised, we find, to a great extent, that the maxims we obtain are clearly not absolute and independent: that the quality denoted by our term is admittedly only praiseworthy in so far as it promotes individual or general welfare, and becomes blameworthy--though remaining in other respects the same--when it operates adversely to these ends. We have already noticed this result in one or two instances, and it will be illustrated at length in the following chapters. But though this is the case to a great extent, it is, for our present purpose, of special importance to note the--real or apparent--exceptions to the rule; because they are specially characteristic of the method that we call Intuitionism.

One of the most important of these exceptions is Veracity: and the affinity in certain respects of this duty--in spite of fundamental differences--to the duty of Good Faith or Fidelity to Promises renders it convenient to examine the two in immediate succession. Under either head a certain correspondence between words and facts is prescribed: and hence the questions that arise when we try to make the maxims precise are somewhat similar in both cases. For example, just as the duty of Good Faith did not lie in conforming our acts to the admissible meaning of certain words,[238] but to the meaning which we knew to be put on them by the promisee; so the duty of Truthspeaking is not to utter words which might, according to common usage, produce in other minds beliefs corresponding to our own, but words which we believe will have this effect on the persons whom we address. And this is usually a very simple matter, as the natural effect of language is to convey our beliefs to other men, and we commonly know quite well whether we are doing this or not. A certain difficulty arises, as in the case of promises, from the use of set forms imposed either by law or by custom; to which most of the discussion of the similar difficulty in the preceding chapter applies with obvious modifications. In the case of formulæ imposed by law--such (e.g.) as declarations of religious belief--it is doubtful whether we may understand the terms in any sense which they commonly bear, or are to take them in the sense intended by the Legislature that imposed them; and again, a difficulty is created by the gradual degradation or perversion of their meaning, which results from the strong inducements offered for their general acceptance; for thus they are continually strained and stretched until a new general understanding seems gradually to grow up as to the meaning of certain phrases; and it is continually disputed whether we may veraciously use the phrases in this new signification. A similar process continually alters the meaning of conventional expressions current in polite society. When a man declares that he ‘has great pleasure in accepting’ a vexatious invitation, or is ‘the obedient servant’ of one whom he regards as an inferior, he uses phrases which were probably once deceptive. If they are so no longer, Common Sense condemns as over-scrupulous the refusal to use them where it is customary to do so. But Common Sense seems doubtful and perplexed where the process of degradation is incomplete, and there are still persons who may be deceived: as in the use of the reply that one is ‘not at home’ to an inconvenient visitor from the country.

However, apart from the use of conventional phrases, the rule ‘to speak the truth’ is not generally difficult of application in conduct. And many moralists have regarded this, from its simplicity and definiteness, as a quite unexceptionable instance of an ethical axiom. I think, however, that patient reflection will show that this view is not really confirmed by the Common Sense of mankind.

§ 2. In the first place, it does not seem clearly agreed whether Veracity is an absolute and independent duty, or a special application of some higher principle. We find (e.g.) that Kant regards it as a duty owed to oneself to speak the truth, because ‘a lie is an abandonment or, as it were, annihilation of the dignity of man.’ And this seems to be the view in which lying is prohibited by the code of honour, except that it is not thought (by men of honour as such) that the dignity of man is impaired by any lying: but only that lying for selfish ends, especially under the influence of fear, is mean and base. In fact there seems to be circumstances under which the code of honour prescribes lying. Here, however, it may be said to be plainly divergent from the morality of Common Sense. Still, the latter does not seem to decide clearly whether truth-speaking is absolutely a duty, needing no further justification: or whether it is merely a general right of each man to have truth spoken to him by his fellows, which right however may be forfeited or suspended under certain circumstances. Just as each man is thought to have a natural right to personal security generally, but not if he is himself attempting to injure others in life and property: so if we may even kill in defence of ourselves and others, it seems strange if we may not lie, if lying will defend us better against a palpable invasion of our rights: and Common Sense does not seem to prohibit this decisively. And again, just as the orderly and systematic slaughter which we call war is thought perfectly right under certain circumstances, though painful and revolting: so in the word-contests of the law-courts, the lawyer is commonly held to be justified in untruthfulness within strict rules and limits: for an advocate is thought to be over-scrupulous who refuses to say what he knows to be false, if he is instructed to say it.[239] Again, where deception is designed to benefit the person deceived, Common Sense seems to concede that it may sometimes be right: for example, most persons would not hesitate to speak falsely to an invalid, if this seemed the only way of concealing facts that might produce a dangerous shock: nor do I perceive that any one shrinks from telling fictions to children, on matters upon which it is thought well that they should not know the truth. But if the lawfulness of benevolent deception in any case be admitted, I do not see how we can decide when and how far it is admissible, except by considerations of expediency; that is, by weighing the gain of any particular deception against the imperilment of mutual confidence involved in all violation of truth.

The much argued question of religious deception (‘pious fraud’) naturally suggests itself here. It seems clear, however, that Common Sense now pronounces against the broad rule, that falsehoods may rightly be told in the interests of religion. But there is a subtler form in which the same principle is still maintained by moral persons. It is sometimes said that the most important truths of religion cannot be conveyed into the minds of ordinary men, except by being enclosed, as it were, in a shell of fiction; so that by relating such fictions as if they were facts, we are really performing an act of substantial veracity.[240] Reflecting upon this argument, we see that it is not after all so clear wherein Veracity consists. For from the beliefs immediately communicated by any set of affirmations inferences are naturally drawn, and we may clearly foresee that they will be drawn. And though commonly we intend that both the beliefs immediately communicated and the inferences drawn from them should be true, and a person who always aims at this is praised as candid and sincere: still we find relaxation of the rule prescribing this intention claimed in two different ways by at least respectable sections of opinion. For first, as was just now observed, it is sometimes held that if a conclusion is true and important, and cannot be satisfactorily communicated otherwise, we may lead the mind of the hearer to it by means of fictitious premises. But the exact reverse of this is perhaps a commoner view: viz. that it is only an absolute duty to make our actual affirmations true: for it is said that though the ideal condition of human converse involves perfect sincerity and candour, and we ought to rejoice in exhibiting these virtues where we can, still in our actual world concealment is frequently necessary to the well-being of society, and may be legitimately effected by any means short of actual falsehood. Thus it is not uncommonly said that in defence of a secret we may not indeed lie,[241] i.e. produce directly beliefs contrary to fact; but we may “turn a question aside,” i.e. produce indirectly, by natural inference from our answer, a negatively false belief; or “throw the inquirer on a wrong scent,” i.e. produce similarly a positively false belief. These two methods of concealment are known respectively as suppressio veri and suggestio falsi, and many think them legitimate under certain circumstances: while others say that if deception is to be practised at all, it is mere formalism to object to any one mode of effecting it more than another.

On the whole, then, reflection seems to show that the rule of Veracity, as commonly accepted, cannot be elevated into a definite moral axiom: for there is no real agreement as to how far we are bound to impart true beliefs to others: and while it is contrary to Common Sense to exact absolute candour under all circumstances, we yet find no self-evident secondary principle, clearly defining when it is not to be exacted.

§ 3. There is, however, one method of exhibiting a priori the absolute duty of Truth, which we must not overlook; as, if it be valid, it would seem that the exceptions and qualifications above mentioned have been only admitted by Common Sense from inadvertence and shallowness of thought.

It is said that if it were once generally understood that lies were justifiable under certain circumstances, it would immediately become quite useless to tell the lies, because no one would believe them; and that the moralist cannot lay down a rule which, if generally accepted, would be suicidal. To this there seem to be three answers. In the first place it is not necessarily an evil that men’s confidence in each other’s assertions should, under certain peculiar circumstances, be impaired or destroyed: it may even be the very result which we should most desire to produce: e.g. it is obviously a most effective protection for legitimate secrets that it should be universally understood and expected that those who ask questions which they have no right to ask will have lies told them: nor, again, should we be restrained from pronouncing it lawful to meet deceit with deceit, merely by the fear of impairing the security which rogues now derive from the veracity of honest men. No doubt the ultimate result of general unveracity under the circumstances would be a state of things in which such falsehoods would no longer be told: but unless this ultimate result is undesirable, the prospect of it does not constitute a reason why the falsehoods should not be told so long as they are useful. But, secondly, since the beliefs of men in general are not formed purely on rational grounds, experience shows that unveracity may long remain partially effective under circumstances where it is generally understood to be legitimate. We see this in the case of the law-courts. For though jurymen are perfectly aware that it is considered the duty of an advocate to state as plausibly as possible whatever he has been instructed to say on behalf of any criminal he may defend, still a skilful pleader may often produce an impression that he sincerely believes his client to be innocent: and it remains a question of casuistry how far this kind of hypocrisy is justifiable. But, finally, it cannot be assumed as certain that it is never right to act upon a maxim of which the universal application would be an undoubted evil. This assumption may seem to be involved in what was previously admitted as an ethical axiom, that what is right for me must be right for ‘all persons under similar conditions.’[242] But reflection will show that there is a special case within the range of the axiom in which its application is necessarily self-limiting, and excludes the practical universality which the axiom appears to suggest: i.e. where the agent’s conditions include (1) the knowledge that his maxim is not universally accepted, and (2) a reasoned conviction that his act will not tend to make it so, to any important extent. For in this case the axiom will practically only mean that it will be right for all persons to do as the agent does, if they are sincerely convinced that the act will not be widely imitated; and this conviction must vanish if it is widely imitated. It can hardly be said that these conditions are impossible: and if they are possible, the axiom that we are discussing can only serve, in its present application, to direct our attention to an important danger of unveracity, which constitutes a strong--but not formally conclusive--utilitarian ground for speaking the truth.[243]

NOTE.--Mr. Stephen (Science of Ethics, chap. v. § 33) explains the exceptions to the rule of truth-speaking as follows:--

“The rule, ‘Lie not,’ is the external rule, and corresponds approximately to the internal rule, ‘Be trustworthy.’ Cases occur where the rules diverge, and in such cases it is the internal rule which is morally approved. Truthfulness is the rule because in the vast majority of cases we trust a man in so far as he speaks the truth; in the exceptional cases, the mutual confidence would be violated when the truth, not when the lie, is spoken.”

This explanation seems to me for several reasons inadequate. (1) If we may sometimes lie to defend the life or secrets of others, it is paradoxical to say that we may not do so to defend our own; but a falsehood in self-defence obviously cannot be justified as an application of the maxim “be trustworthy.” (2) Even when the falsehood is in legitimate defence of others against attacks, we cannot say that the speaker manifests “trustworthiness” without qualification; for the deceived assailant trusts his veracity, otherwise he would not be deceived: the question therefore is under what circumstances the confidence of A that I shall speak the truth may legitimately be disappointed in order not to disappoint the confidence of B that I shall defend his life and honour. This question Mr. Stephen’s explanation does not in any way aid us to answer.

The general question raised by Mr. Stephen, as to the value of “internal rules,” expressed in the form “Be this,” in contrast to external rules, expressed in the form “Do this,” will be dealt with in a subsequent chapter (xiv. § 1).

FOOTNOTES:

[238] The case where set forms are used being the exceptio probans regulam.Return to passage

[239] It can hardly be said that the advocate merely reports the false affirmations of others: since the whole force of his pleading depends upon his adopting them and working them up into a view of the case which, for the time at least, he appears to hold.Return to passage

[240] E.g. certain religious persons hold--or held in 1873--that it is right solemnly to affirm a belief that God created the world in 6 days and rested on the 7th, meaning that 1 : 6 is the divinely ordered proportion between rest and labour.Return to passage

[241] Cf. Whewell, Elements of Morality, Book ii. chap. xv. § 299.Return to passage

[242] Cf. chap. i. § 3 of this Book.Return to passage

[243] See Book iv. chap. v. § 3 for a further discussion of this axiom.Return to passage

VIII. OTHER SOCIAL DUTIES AND VIRTUES

§ 1. When we proceed to inquire how far the minor social duties and virtues recognised by Common Sense appear on examination to be anything more than special applications of the Benevolence--general or particular--discussed in chap. iv., the department of duty which most prominently claims our attention, is that which deals with the existence, and determines the legitimacy, of feelings antithetical to the benevolent.

For it seems that malevolent affections are as natural to man as the benevolent: not indeed in the same sense--for man tends to have normally some kindly feeling for any fellow-man, when there is no special cause operating to make him love or hate, (though this tendency is obscured in the lower stages of social development by the habitual hostility between strange tribes and races); but still such special causes of malevolent feeling continually occur, and, in the main, exemplify a psychological law analogous to that by which the growth of benevolent feelings is explained. For just as we are apt to love those who are the cause of pleasure to us whether by voluntary benefits or otherwise: so by strict analogy we naturally dislike those who have done us harm, either consciously from malevolence or mere selfishness, or even unconsciously, as when another man is an obstacle to our attainment of a much-desired end. Thus we naturally feel ill-will to a rival who deprives us of an object of competition: and so in persons in whom the desire of superiority is strong, a certain dislike of any one who is more successful or prosperous than themselves is easily aroused: and this envy, however repulsive to our moral sense, seems as natural as any other malevolent emotion. And it is to be observed that each of the elements into which we can analyse malevolent affection finds its exact counterpart in the analysis of the benevolent: as the former includes a dislike of the presence of its object and a desire to inflict pain on it, and also a capacity of deriving pleasure from the pain thus inflicted.[244]

If now we ask how far indulgence of malevolent emotions is right and proper, the answer of Common Sense is not easy to formulate. For some would say broadly that they ought to be repressed altogether or as far as possible. And no doubt we blame all envy (though sometimes to exclude it altogether requires a magnanimity which we praise): and we regard as virtues or natural excellences the good-humour which prevents one from feeling even pain to a material extent--not to say resentment--from trifling annoyances inflicted by others, the meekness which does not resent even graver injuries, the mildness and gentleness which refrain from retaliating them, and the placability which accords forgiveness rapidly and easily. We are even accustomed to praise the mercy which spares even deserved punishment: because though we never exactly disapprove of the infliction of deserved punishment, and hold it to be generally a duty of government--and in certain cases of private persons--to inflict it, we do not think that this duty admits of no exceptions; we think that in exceptional cases considerations not strictly relevant to the question of justice may be properly regarded as reasons for remitting punishment, and we admire the sympathetic nature that eagerly avails itself of these legitimate occasions for remission.

On the other hand Common Sense admits instinctive resentment for wrong to be legitimate and proper: and even a more sustained and deliberate malevolence is commonly approved as virtuous indignation. The problem, then, is how to reconcile these diverse approvals. Even as regards external duty, there is some difficulty; since, though it is clear to common sense that in a well-ordered society punishment of adults ought generally to be inflicted by government, and that a private individual wronged ought not to “take the law into his own hands,”--still there are in all societies injuries to individuals which the law does not punish at all or not adequately, and for which effective requital is often possible without transgressing the limits of legality; and there seems to be no clear agreement as to the right manner of dealing with these. For the Christian code is widely thought to prescribe a complete and absolute forgiveness of such offences, and many Christians have endeavoured to carry out this rule by dismissing the offences as far as possible from their minds, or at least allowing the memory of them to have no effect on their outward conduct. Few, however, would deny that, so far as a wrong done to me gives ground for expecting future mischief from the offender to myself or to others, I am bound as a rational being to take due precautions against this future mischief; and probably most would admit that such precautions for the future, in the case we are considering, may include the infliction of punishment for the past, where impunity would give a dangerous temptation to a repetition of the unpunished offence. If we ask, therefore, how far forgiveness is practically possible, the answer seems admittedly to depend on two considerations: (1) how far the punishment to which resentment prompts is really required in the interests of society, and (2) how far, if so, it will be adequately inflicted if the person wronged refrains from inflicting it. But, obviously, so far as we allow the question to be settled by these considerations we are introducing a method difficult to distinguish from the Utilitarian.

And we seem led to a similar result in discussing the legitimacy of malevolent feeling. Here again we find much disagreement among thoughtful persons: for many would say that though the emotion of anger is legitimate, it ought to be directed always against wrong acts as such, and not against the agent: for even where the anger may legitimately prompt us to punish him, it ought never to overcome our kindly feeling towards him. And certainly if this state of mind is possible, it seems the simplest reconciliation of the general maxim of Benevolence with the admitted duty of inflicting punishment. On the other hand, it is urged, with some reason, that to retain a genuine kindly feeling towards a man, while we are gratifying a strong impulse of aversion to his acts by inflicting pain on him, requires a subtle complexity of emotion too far out of the reach of ordinary men to be prescribed as a duty: and that we must allow as right and proper a temporary suspension of benevolence towards wrong-doers until they have been punished. Some, again, make a distinction between Instinctive and Deliberate Resentment: saying that the former is legitimate in so far as it is required for the self-defence of individuals and the repression of mutual violence, but that deliberate resentment is not similarly needed, for if we act deliberately we can act from a better motive. Others, however, think that a deliberate and sustained desire to punish wrong-doers is required in the interests of society, since the mere desire to realise Justice will not practically be strong enough to repress offences: and that it is as serious a mistake to attempt to substitute the desire of Justice for natural resentment as it would be to substitute prudence for natural appetite in eating and drinking, or mere dutifulness for filial affection.[245]

Again, a distinction may be taken between the impulse to inflict pain and the desire of the antipathetic pleasure which the agent will reap from this infliction; so that, while we approve the former under certain circumstances, we may still regard the latter as altogether inadmissible. It would seem, however, that a man under the influence of a strong passion of resentment can hardly exclude from his mind altogether an anticipation of the pleasure that he will feel when the passion is gratified; and if so, he can hardly exclude altogether the desire of this gratification. If, therefore, it is important for the well-being of society that men should derive hearty satisfaction from the punishment of a nefarious criminal, it is perhaps going too far to prohibit absolutely the desire of this satisfaction; though we may say that a man ought not to cherish this desire, and gloat over the anticipated pleasure.

On the whole we may perhaps sum up by saying that a superficial view of the matter naturally leads us to condemn sweepingly all malevolent feelings and the acts to which they prompt, as contrary to the general duty of benevolence: but that the common sense of reflective persons recognises the necessity of relaxing this rule in the interests of society: only it is not clear as to the limits or principles of this relaxation, though inclined to let it be determined by considerations of expediency.

§ 2. The remaining virtues that are clearly and exclusively social, will be easily seen to have no independent maxims; the conduct in which they are respectively realised being merely the fulfilment, under special conditions, of the rules already discussed. We need not, then, enter upon an exhaustive examination of these minor virtues--for it is not our object to frame a complete glossary of ethical terms--: but for illustration’s sake it may be well to discuss one or two of them; and I will select for examination Liberality with its cognate notions, partly on account of the prominence that it has had in the earlier ages of thought, and partly because of a certain complexity in the feelings with which it is usually regarded. Considered as a Virtue, Liberality seems to be merely Benevolence, as exhibited in the particular service of giving money, beyond the limits of strict duty as commonly recognised:--for in so far as it can be called a duty to be liberal, it is because in the performance of the more or less indefinite duties enumerated in chap. iv. we do not like exactness to be sought; a certain excess is needful if the duty is to be well done. And perhaps in the case of the poor this graceful excess is excluded by prudence: for though a poor man might make a great sacrifice in a small gift we should call this generous but scarcely liberal; Liberality appears to require an external abundance in the gift even more than a self-sacrificing disposition. It seems therefore to be possible only to the rich: and, as I have hinted, in the admiration commonly accorded to it there seems to be mingled an element rather æsthetic than moral. For we are all apt to admire power, and we recognise the latent power of wealth gracefully exhibited in a certain degree of careless profusion when the object is to give happiness to others. Indeed the vulgar admire the same carelessness as manifested even in selfish luxury.

The sphere of Liberality, then, lies generally in the fulfilment of the indefinite duties of Benevolence. But there is a certain borderground between Justice and Benevolence where it is especially shown; namely, in the full satisfaction of all customary expectations, even when indefinite and uncertain; as (e.g.) in the remuneration of services, in so far as this is governed by custom; and even where it is left entirely to free contract, and therefore naturally determined by haggling and bargaining (as market value generally), it is characteristic of a liberal man to avoid this haggling and to give somewhat higher remuneration than the other party might be induced to take, and similarly to take for his own services a somewhat lower payment than he might persuade the other to give. And again, since laws and promises and especially tacit understandings are sometimes doubtful and ambiguous, a liberal man will in such cases unhesitatingly adopt the interpretation which is least in his own favour, and pay the most that he can by any fairminded person be thought to owe, and exact the least that reasonably can be thought to be due to himself: that is, if the margin be, relatively to his resources, not considerable.[246] And of a man who does the opposite of all this we predicate Meanness; this being the vice antithetical to Liberality. Here again there seems no place for this particular vice if the amount at stake be considerable; for then we think it not mean to exact one’s own rights to the full, and worse than mean to refuse another what he ought to have; in fact in such cases we think that any indefiniteness as to rights should be practically removed by the decision of a judge or arbitrator. The vice of meanness then is, we may say, bounded on the side of vice by injustice: the mean man is blamed not for violation of Justice, but, because he chooses a trifling gain to himself rather than the avoidance of disappointment to others. And here, again, it should be observed, an element not strictly moral is included in the common disapprobation of meanness. For, as we have seen, a certain carelessness of money is admired as a sign of power and superiority: and the opposite habit is a symbol of inferiority. The mean man then is apt to be despised as having the bad taste to show this symbol needlessly, preferring a little gain to the respect of his fellow-men.

Meanness, however, has a wider sphere than Liberality, and refers not merely to the taking or refusing of money, but to taking advantages generally: in this wider sense the opposite virtue is Generosity.

In so far as the sphere of Generosity coincides with that of Liberality, the former seems partly to transcend the latter, partly to refer more to feelings than to outward acts, and to imply a completer triumph of unselfish over selfish impulses. In the wider sense it is strikingly exhibited in conflict and competition of all kinds. Here it is sometimes called Chivalry. Reflection shows us that the essence of this beautiful virtue is the realisation of Benevolence under circumstances which make it peculiarly difficult and therefore peculiarly admirable. For Generosity or Chivalry towards adversaries or competitors seems to consist in showing as much kindness and regard for their well-being as is compatible with the ends and conditions of conflict: one prominent form of this being the endeavour to realise ideal justice in these conditions, not merely by observing all the rules and tacit understandings under which the conflict is conducted, but by resigning even accidental advantages. Such resignation, however, is not considered a strict duty: nor is there any agreement as to how far it is right and virtuous; for what some would praise and approve, others would regard as quixotic and extravagant.

To sum up, we may say that the terms Liberality and Generosity, so far as they are strictly ethical, denote the virtue of Benevolence (perhaps including Justice to some extent) as exhibited in special ways and under special conditions. And the examination of the other minor social virtues would evidently lead to similar general results: though it might not always be easy to agree on their definitions.

FOOTNOTES:

[244] It is to be observed that men derive pleasure from the pains and losses of others, in various ways, without the specific emotion which I distinguish as malevolent affection: either (1) from the sense of power exercised--which explains much of the wanton cruelty of schoolboys, despots, etc.--or (2) from a sense of their own superiority or security in contrast with the failures and struggles of others, or (3) even merely from the excitement sympathetically caused by the manifestation or representation of any strong feeling in others; a real tragedy is interesting in the same way as a fictitious one. But these facts, though psychologically interesting, present no important ethical problems; since no one doubts that pain ought not to be inflicted from such motives as these.Return to passage

[245] Butler (Sermon VIII., Upon Resentment) recognises that deliberate resentment “has in fact a good influence upon the affairs of the world”; though “it were much to be wished that men would act from a better principle.”Return to passage

[246] If the amount at stake is such as to constitute a real sacrifice, the conduct seems to be more than liberal, and (unless blamed as extravagant) is rather praised as generous or highminded.Return to passage

IX. SELF-REGARDING VIRTUES

§ 1. I conceive that according to the morality of Common Sense, an ultimate harmony between (1) Self-interest and (2) Virtue is assumed or postulated; so that the performance of duty and cultivation of Virtue generally may be regarded as a “duty to self,” as being always conducive to the agent’s true interest and well-being. But further, Common Sense (in modern Europe) recognises a strict duty of preserving one’s own life, even when the prospect life offers is one in which pain preponderates over pleasure; it is, indeed, held to be right and praiseworthy to encounter certain death in the performance of strict duty, or for the preservation of the life of another, or for any very important gain to society; but not merely in order to avoid pain to the agent. At the same time, within the limits fixed by this and other duties, Common Sense considers, I think,[247] that it is a duty to seek our own happiness, except in so far as we can promote the welfare of others by sacrificing it. This “due concern about our own interest or happiness” may be called the Duty of Prudence. It should, however, be observed that--since it is less evident that men do not adequately desire their own greatest good, than that their efforts are not sufficiently well directed to its attainment--in conceiving Prudence as a Virtue or Excellence, attention is often fixed almost exclusively on its intellectual side. Thus regarded, Prudence may be said to be merely Wisdom made more definite by the acceptance of Self-interest as its sole ultimate end: the habit of calculating carefully the best means to the attainment of our own interest, and resisting all irrational impulses which may tend to perturb our calculations or prevent us from acting on them.

§ 2. There are, however, current notions of particular virtues, which might be called Self-regarding; but yet with respect to which it is not quite clear whether they are merely particular applications of Prudence, or whether they have independent maxims. Of these Temperance, one of the four cardinal virtues anciently recognised, seems the most prominent. In its ordinary use, Temperance is the habit of controlling the principal appetites (or desires which have an immediate corporeal cause). The habit of moderating and controlling our desires generally is recognised by Common Sense as useful and desirable, but with less distinctness and emphasis.

All are agreed that our appetites need control: but in order to establish a maxim of Temperance, we have to determine within what limits, on what principle, and to what end they ought to be controlled. Now in the case of the appetites for food, drink, sleep, stimulants, etc., no one doubts that bodily health and vigour is the end naturally subserved by their gratification, and that the latter ought to be checked whenever it tends to defeat this end (including in the notion of health the most perfect condition of the mental faculties, so far as this appears to depend upon the general state of the body). And, further, the indulgence of a bodily appetite is manifestly imprudent, if it involves the loss of any greater gratification of whatever kind: and otherwise wrong if it interferes with the performance of duties; though it is perhaps doubtful how far this latter indulgence would commonly be condemned as ‘intemperance.’

Some, however, deduce from the obvious truth, that the maintenance of bodily health is the chief natural end of the appetites, a more rigid rule of restraint, and one that goes beyond prudence. They say that this end ought to fix not only the negative but the positive limit of indulgence; that the pleasure derived from the gratification of appetite should never be sought per se (even when it does not impair health, or interfere with duty, or with a greater pleasure of a different kind); but only in so far as such gratification is positively conducive to health. When we consider to what a marked divergence from the usual habits of the moral rich this principle would lead, we might be disposed to say that it is clearly at variance with Common Sense: but it often meets with verbal assent.

There is, again, a third and intermediate view which accepts the principle that the gratification of appetite is not to be sought for its own sake, but admits other ends as legitimate besides the mere maintenance of health and strength:--e.g. “cheerfulness, and the cultivation of the social affections.”[248] Some such principle seems to be more or less consciously held by many persons: hence we find that solitary indulgence in the pleasures of the table is very frequently regarded with something like moral aversion: and that the banquets which are given and enjoyed by moral persons, are vaguely supposed to have for their end not the common indulgence of sensual appetites, but the promotion of conviviality and conversational entertainment. For it is generally believed that the enjoyment in common of a luxurious meal develops social emotions, and also stimulates the faculties of wit and humour and lively colloquy in general; and feasts which are obviously not contrived with a view to such convivial and colloquial gratifications seem to be condemned by refined persons. Still it would be going too far to state, as a maxim supported by Common Sense in respect of sensual pleasures generally, that they are never to be sought except they positively promote those of a higher kind.

§ 3. In the last section we have spoken chiefly of the appetites for food and drink. It is, however, in the case of the appetite of sex that the regulation morally prescribed most clearly and definitely transcends that of mere prudence: which is indicated by the special notion of Purity or Chastity.[249]

At first sight it may perhaps appear that the regulation of the sexual appetite prescribed by the received moral code merely confines its indulgence within the limits of the union sanctioned by law: only that here, as the natural impulse is peculiarly powerful and easily excited, it is especially necessary to prohibit any acts, internal as well as external, that tend even indirectly to the transgression of these limits. And this is to a great extent true: still on reflection it will appear, I think, that our common notion of purity implies a standard independent of law; for, first, conformity to this does not necessarily secure purity: and secondly, all illegitimate sexual intercourse is not thought to be impure,[250] and it is only by inadvertence that the two notions are sometimes confounded. But it is not very clear what this standard is. For when we interrogate the moral consciousness of mankind, we seem to find two views, a stricter and a laxer, analogous to the two interpretations of Temperance last noticed. It is agreed that the sexual appetite ought never to be indulged for the sake of the sensual gratification merely, but as a means to some higher end: but some say that the propagation of the species is the only legitimate, as it is obviously the primary natural, end: while others regard the development of mutual affection in a union designed to be permanent as an end perfectly admissible and right. I need not point out that the practical difference between the two views is considerable; so that this question is one which it is necessary to raise and decide. But it may be observed that any attempt to lay down minute and detailed rules on this subject seems to be condemned by Common Sense as tending to defeat the end of purity; as such minuteness of moral legislation invites men in general to exercise their thoughts on this subject to an extent which is practically dangerous.[251]

I ought to point out that the Virtue of Purity is certainly not merely self-regarding, and is therefore properly out of place in this chapter: but the convenience of discussing it along with Temperance has led me to take it out of its natural order. Some, however, would go further, and say that it ought to be treated as a distinctly social virtue: for the propagation and rearing of children is one of the most important of social interests: and they would maintain that Purity merely connotes a sentiment protective of these important functions, supporting the rules which we consider necessary to secure their proper performance. But it seems clear that, though Common Sense undoubtedly recognises this tendency of the sentiment of Purity to maintain the best possible provision for the continuance of the human race, it still does not regard that as the fundamental point in the definition of this rule of duty, and the sole criterion in deciding whether acts do or do not violate the rule.

There seem to be no similar special questions with respect to most other desires. We recognise, no doubt, a general duty of self-control: but this is merely as a means to the end of acting rationally (whatever our interpretation of rational action may be); it only prescribes that we should yield to no impulse which prompts us to act in antagonism to ends or rules deliberately accepted. Further, there is a certain tendency among moral persons to the ascetic opinion that the gratification of merely sensual impulse is in itself somewhat objectionable: but this view does not seem to be taken by Common Sense in particular cases;--we do not (e.g.) commonly condemn the most intense enjoyment of muscular exercise, or warmth, or bathing. The only other case, besides that of the appetites above discussed, in which the Common Sense of our age and country seems to regard as right or admirable the repression of natural impulses, beyond what Prudence and Benevolence would dictate, is that of the promptings of pain and fear. An important instance of this is to be found in the before-mentioned rule prohibiting suicide absolutely, even in face of the strongest probability that the rest of a man’s life will be both miserable and burdensome to others. But in other cases also praise is apparently bestowed on endurance of pain and danger, beyond what is conducive to happiness; as we shall have occasion to observe in the next chapter.

FOOTNOTES:

[247] Kant argues (Met. Anfangsgr. d. Tugendlehre, Th. I., § iv.) that as every one “inevitably wills” means to promote his own happiness this cannot be regarded as a duty. But, as I have before urged (Book i. chap. iv. § 1), a man does not “inevitably will” to do what he believes will be most conducive to his own greatest happiness.Return to passage

The view in the text is that of Butler (Dissertation Of the nature of Virtue); who admits that “nature has not given us so sensible a disapprobation of imprudence and folly as of falsehood, injustice, and cruelty”; but points out that such sensible disapprobation is for various reasons less needed in the former case.

[248] See Whewell’s Elements of Morality, Book ii. chap. x.Return to passage

[249] The notion of Chastity is nearly equivalent to that of Purity, only somewhat more external and superficial.Return to passage

[250] In so far as mere illegitimacy of union is conceived to be directly and specially prohibited, and not merely from considerations of Prudence and Benevolence, it is regarded as a violation of Order rather than of Purity.Return to passage

[251] It was partly owing to the serious oversight of not perceiving that Purity itself forbids too minute a system of rules for the observance of purity that the mediæval Casuistry fell into disrepute.Return to passage

X. COURAGE, HUMILITY, ETC

§ 1. Besides the Virtue of Purity, which we found it convenient to discuss in the last chapter, there remain one or two prominent excellences of character which do not seem to be commonly admired and inculcated with any distinct reference either to private or to general happiness; and which, though in most cases obviously conducive to one or other of these ends, sometimes seem to influence conduct in a direction at variance with them.

For example, Courage is a quality which excites general admiration, whether it is shown in self-defence, or in aiding others, or even when we do not see any benefit resulting from the particular exhibition of it. Again, in Christian societies, Humility (if believed sincere) often obtains unqualified praise, in spite of the loss that may evidently result from a man’s underrating his own abilities. It will be well, therefore, to examine how far in either case we can elicit a clear and independent maxim defining the conduct commended under each of these notions.

To begin with Courage. We generally denote by this term a disposition to face danger of any kind without shrinking. We sometimes also call those who bear pain unflinchingly courageous: but this quality of character we more commonly distinguish as Fortitude. Now it seems plain that if we seek for a definition of strict duty, as commonly recognised, under the head either of Courage or of Fortitude, we can find none that does not involve a reference to other maxims and ends. For no one would say that it is our duty to face danger or to bear avoidable pain generally, but only if it meets us in the course of duty.[252] And even this needs further qualification: for as regards such duties as those (e.g.) of general Benevolence, it would be commonly allowed that the agent’s pain and danger are to be taken into account in practically determining their extent: it would be held that we are not bound to endure any pain except for the prevention of manifestly greater pain to another, or the attainment of a more important amount of positive good: nor to run any risk, unless the chance of additional benefit to be gained for another outweighs the cost and chance of loss to ourselves if we fail. Indeed it is doubtful whether the common estimate of the duty of Benevolence could be said to amount quite to this.[253]

When, however, we consider Courage as an Excellence rather than a duty, it seems to hold a more independent position in our moral estimation. And this view corresponds more completely than the other to the common application of the notion; as there are many acts of courage, which are not altogether within the control of the Will, and therefore cannot be regarded as strict duties. For (1) danger is frequently sudden and needs to be met without deliberation, so that our manner of meeting it can only be semi-voluntary. And (2) though naturally timid persons can perhaps with effort control fear as they can anger or appetite, if time be allowed for deliberation, and can prevent it from taking effect in dereliction of duty: still this result is not all that is required for the performance of such courageous acts as need more than ordinary energy--for the energy of the timid virtuous man is liable to be exhausted in the effort to control his fear: e.g. in battle he can perhaps stand still to be killed as well as the courageous man, but not charge with the same impetuosity or strike with the same vigour and precision.[254]

So far then as Courage is not completely voluntary, we have to consider whether it is a desirable quality rather than whether we are strictly bound to exhibit it. And here there seems no doubt that we commonly find it morally admirable without reference to any end served by it, and when the dangers which call it forth might be avoided without any dereliction of duty. At the same time we call a man foolhardy who runs unnecessarily into danger beyond a certain degree. Where then is the limit to be fixed? On utilitarian principles we should endeavour to strike as exact a balance as possible between the amount of danger incurred in any case and the probable benefit of cultivating and developing by practice a habit so frequently necessary for the due performance of important duties. This will obviously give a different result for different states of society and different callings and professions; as most people need this instinctive courage less in civilised societies than in semi-barbarous ones, and civilians less than soldiers. Perhaps the instinctive admiration of mankind for acts of daring does not altogether observe this limit: but we may say, I think, that in so far as it attempts to justify itself on reflection, it is commonly in some such way as this; and Common Sense does not seem to point to any limit depending on a different principle.

§ 2. As the Virtue of Courage is prominent in Pagan ethics, and in the Code of Honour which may be regarded as a sort of survival of the pagan view of morality, so Humility especially belongs to the ideal set before mankind by Christianity. The common account, however, of this virtue is somewhat paradoxical. For it is generally said that Humility prescribes a low opinion of our own merits: but if our merits are comparatively high, it seems strange to direct us to have a low opinion of them. It may be replied, that though our merits may be high when compared with those of ordinary men, there are always some to be found superior, and we can compare ourselves with these, and in the extreme case with ideal excellence, of which all fall far short; and that we ought to make this kind of comparison and not the other kind, and contemplate our faults--of which we shall assuredly find a sufficiency--and not our merits. But surely in the most important deliberations which human life offers, in determining what kind of work we shall undertake and to what social functions we shall aspire, it is often necessary that we should compare our qualifications carefully with those of average men, if we are to decide rightly. And it would seem just as irrational to underrate ourselves as to overrate; and though most men are more prone to the latter mistake, there are certainly some rather inclined to the former.

I think that if we reflect carefully on the common judgments in which the notion of Humility is used, we shall find that the quality commonly praised under this name (which is not always used eulogistically), is not properly regulative of the opinions we form of ourselves--for here as in other opinions we ought to aim at nothing but Truth--but tends to the repression of two different seductive emotions, one entirely self-regarding, the other relating to others and partly taking effect in social behaviour. Partly, the Virtue of Humility is manifested in repressing the emotion of self-admiration, which springs naturally from the contemplation of our own merits, and as it is highly agreeable, prompts to such contemplation. This admiring self-complacency is generally condemned: but not, I think, by an intuition that claims to be ultimate, as it is commonly justified by the reason that such self-admiration, even if well-grounded, tends to check our progress towards higher virtue. The mere fact of our feeling this admiration is thought to be evidence that we have not sufficiently compared ourselves with our ideal, or that our ideal is not sufficiently high: and it is thought to be indispensable to moral progress that we should have a high ideal and should continually contemplate it. At the same time, we obviously need some care in the application of this maxim. For all admit that self-respect is an important auxiliary to right conduct: and moralists continually point to the satisfactions of a good conscience as part of the natural reward which Providence has attached to virtue: yet it is difficult to separate the glow of self-approbation which attends the performance of a virtuous action from the complacent self-consciousness which Humility seems to exclude. Perhaps we may say that the feeling of self-approbation itself is natural and a legitimate pleasure, but that if prolonged and fostered it is liable to impede moral progress: and that what Humility prescribes is such repression of self-satisfaction as will tend on the whole to promote this end. On this view the maxim of Humility is clearly a dependent one: the end to which it is subordinate is progress in Virtue generally. As for such pride and self-satisfaction as are based not on our own conduct and its results, but on external and accidental advantages, these are condemned as involving a false and absurd view as to the nature of real merit.

But we not only take pleasure in our own respect and admiration, but still more, generally speaking, in the respect and admiration of others. The desire for this, again, is held to be to some extent legitimate, and even a valuable aid to morality: but as it is a dangerously seductive impulse, and frequently acts in opposition to duty, it is felt to stand in special need of self-control. Humility, however, does not so much consist in controlling this desire, as in repressing the claim for its satisfaction which we are naturally disposed to make upon others. We are inclined to demand from others ‘tokens of respect,’ some external symbol of their recognition of our elevated place in the scale of human beings; and to complain if our demands are not granted. Such claims and demands Humility bids us repress. It is thought to be our duty not to exact, in many cases, even the expression of reverence which others are strictly bound to pay. And yet here, again, there is a limit, in the view of Common Sense, at which this quality of behaviour passes over into a fault: for the omission of marks of respect[255] is sometimes an insult which impulses commonly regarded as legitimate and even virtuous (sense of Dignity, Self-respect, Proper Pride, etc.) prompt us to repel. I do not, however, think it possible to claim a consensus for any formula for determining this limit.

FOOTNOTES:

[252] In the case of pain which cannot be avoided we consider that Fortitude will suppress outcries and lamentations: though in so far as these relieve the sufferer without annoying others, the duty seems doubtful.Return to passage

[253] Cf. ante, chap. iv. § 5 of this Book.Return to passage

[254] The above remarks apply in a less degree to the “moral courage” by which men face the pains and dangers of social disapproval in the performance of what they believe to be duty: for the adequate accomplishment of such acts depends less on qualities not within the control of the will at any given time.Return to passage

[255] I do not refer to customary marks of respect for officials, the omission of which would be a breach of established order; since the special political reason for requiring these obviously takes the question beyond the sphere of application of the Virtue of Humility.Return to passage

XI. REVIEW OF THE MORALITY OF COMMON SENSE

§ 1. We have now concluded such detailed examination of the morality of Common Sense as, on the plan laid down in chap. i. of this Book, it seemed desirable to undertake. We have not discussed all the terms of our common moral vocabulary: but I believe that we have omitted none that are important either in themselves or relatively to our present inquiry. For of those that remain we may fairly say, that they manifestly will not furnish independent maxims: for reflection will show that the conduct designated by them is either prescribed merely as a means to the performance of duties already discussed; or is really identical with the whole or part of some of these, viewed in some special aspect, or perhaps specialised by the addition of some peculiar circumstance or condition.

Let us now pause and survey briefly the process in which we have been engaged, and the results which we have elicited.

We started with admitting the point upon the proof of which moralists have often concentrated their efforts, the existence of apparently independent moral intuitions. It seemed undeniable that men judge some acts to be right and wrong in themselves, without consideration of their tendency to produce happiness to the agent or to others: and indeed without taking their consequences into account at all, except in so far as these are included in the common notion of the act. We saw, however, that in so far as these judgments are passed in particular cases, they seem to involve (at least for the more reflective part of mankind) a reference of the case to some general rule of duty: and that in the frequent cases of doubt or conflict of judgments as to the rightness of any action, appeal is commonly made to such rules or maxims, as the ultimately valid principles of moral cognition. In order, therefore, to throw the Morality of Common Sense into a scientific form, it seemed necessary to obtain as exact a statement as possible of these generally recognised principles. I did not think that I could dispense myself from this task by any summary general argument, based on the unscientific character of common morality. There is no doubt that the moral opinions of ordinary men are in many points loose, shifting, and mutually contradictory, but it does not follow that we may not obtain from this fluid mass of opinion, a deposit of clear and precise principles commanding universal acceptance. The question, whether we can do this or not, seemed to me one which should not be decided a priori without a fair trial: and it is partly in order to prepare materials for this trial that the survey in the preceding eight chapters has been conducted. I have endeavoured to ascertain impartially, by mere reflection on our common moral discourse, what are the general principles or maxims, according to which different kinds of conduct are judged to be right and reasonable in different departments of life. I wish it to be particularly observed, that I have in no case introduced my own views, in so far as I am conscious of their being at all peculiar to myself: my sole object has been to make explicit the implied premises of our common moral reasoning. I now wish to subject the results of this survey to a final examination, in order to decide whether these general formulæ possess the characteristics by which self-evident truths are distinguished from mere opinions.

§ 2. There seem to be four conditions, the complete fulfilment of which would establish a significant proposition, apparently self-evident, in the highest degree of certainty attainable: and which must be approximately realised by the premises of our reasoning in any inquiry, if that reasoning is to lead us cogently to trustworthy conclusions.

I. The terms of the proposition must be clear and precise. The rival originators of modern Methodology, Descartes and Bacon, vie with each other in the stress that they lay on this point: and the latter’s warning against the “notiones male terminatæ” of ordinary thought is peculiarly needed in ethical discussion. In fact my chief business in the preceding survey has been to free the common terms of Ethics, as far as possible, from objection on this score.

II. The self-evidence of the proposition must be ascertained by careful reflection. It is needful to insist on this, because most persons are liable to confound intuitions, on the one hand with mere impressions or impulses, which to careful observation do not present themselves as claiming to be dictates of Reason; and on the other hand, with mere opinions, to which the familiarity that comes from frequent hearing and repetition often gives a false appearance of self-evidence which attentive reflection disperses. In such cases the Cartesian method of testing the ultimate premises of our reasonings, by asking ourselves if we clearly and distinctly apprehend them to be true, may be of real use; though it does not, as Descartes supposed, afford a complete protection against error. A rigorous demand for self-evidence in our premises is a valuable protection against the misleading influence of our own irrational impulses on our judgments: while at the same time it not only distinguishes as inadequate the mere external support of authority and tradition, but also excludes the more subtle and latent effect of these in fashioning our minds to a facile and unquestioning admission of common but unwarranted assumptions.

And we may observe that the application of this test is especially needed in Ethics. For, on the one hand, it cannot be denied that any strong sentiment, however purely subjective, is apt to transform itself into the semblance of an intuition; and it requires careful contemplation to detect the illusion. Whatever we desire we are apt to pronounce desirable: and we are strongly tempted to approve of whatever conduct gives us keen pleasure.[256] And on the other hand, among the rules of conduct to which we customarily conform, there are many which reflection shows to be really derived from some external authority: so that even if their obligation be unquestionable, they cannot be intuitively ascertained. This is of course the case with the Positive Law of the community to which we belong. There is no doubt that we ought,--at least generally speaking,--to obey this: but what it is we cannot of course ascertain by any process of abstract reflection, but only by consulting Reports and Statutes. Here, however, the sources of knowledge are so definite and conspicuous, that we are in no danger of confounding the knowledge gained from studying them with the results of abstract contemplation. The case is somewhat different with the traditional and customary rules of behaviour which exist in every society, supplementing the regulative operation of Law proper: here it is much more difficult to distinguish the rules which a moral man is called upon to define for himself, by the application of intuitively known principles, from those as to which some authority external to the individual is recognised as the final arbiter.[257]

We may illustrate this by referring to two systems of rules which we have before[258] compared with Morality; the Law of Honour, and the Law of Fashion or Etiquette. I noticed that there is an ambiguity in the common terms ‘honourable’ and ‘dishonourable’; which are no doubt sometimes used, like ethical terms, as implying an absolute standard. Still, when we speak of the Code of Honour we seem to mean rules of which the exact nature is to be finally determined by an appeal to the general opinion of well-bred persons: we admit that a man is in a sense ‘dishonoured’ when this opinion condemns him, even though we may think his conduct unobjectionable or even intrinsically admirable.[259] Similarly, when we consider from the point of view of reason the rules of Fashion or Etiquette, some may seem useful and commendable, some indifferent and arbitrary, some perhaps absurd and burdensome: but nevertheless we recognise that the final authority on matters of Etiquette is the custom of polite society; which feels itself under no obligation of reducing its rules to rational principles. Yet it must be observed that each individual in any society commonly finds in himself a knowledge not obviously incomplete of the rules of Honour and Etiquette, and an impulse to conform to them without requiring any further reason for doing so. Each often seems to see at a glance what is honourable and polite just as clearly as he sees what is right: and it requires some consideration to discover that in the former cases custom and opinion are generally the final authority from which there is no appeal. And even in the case of rules regarded as distinctly moral, we can generally find an element that seems to us as clearly conventional as the codes just mentioned, when we contemplate the morality of other men, even in our own age and country. Hence we may reasonably suspect a similar element in our own moral code: and must admit the great importance of testing rigorously any rule which we find that we have a habitual impulse to obey; to see whether it really expresses or can be referred to a clear intuition of rightness.

III. The propositions accepted as self-evident must be mutually consistent. Here, again, it is obvious that any collision between two intuitions is a proof that there is error in one or the other, or in both. Still, we frequently find ethical writers treating this point very lightly. They appear to regard a conflict of ultimate rules as a difficulty that may be ignored or put aside for future solution, without any slur being thrown on the scientific character of the conflicting formulæ. Whereas such a collision is absolute proof that at least one of the formulæ needs qualification: and suggests a doubt whether the correctly qualified proposition will present itself with the same self-evidence as the simpler but inadequate one; and whether we have not mistaken for an ultimate and independent axiom one that is really derivative and subordinate.

IV. Since it is implied in the very notion of Truth that it is essentially the same for all minds, the denial by another of a proposition that I have affirmed has a tendency to impair my confidence in its validity. And in fact ‘universal’ or ‘general’ consent has often been held to constitute by itself a sufficient evidence of the truth of the most important beliefs; and is practically the only evidence upon which the greater part of mankind can rely. A proposition accepted as true upon this ground alone has, of course, neither self-evidence nor demonstrative evidence for the mind that so accepts it; still, the secure acceptance that we commonly give to the generalisations of the empirical sciences rests--even in the case of experts--largely on the belief that other experts have seen for themselves the evidence for these generalisations, and do not materially disagree as to its adequacy. And it will be easily seen that the absence of such disagreement must remain an indispensable negative condition of the certainty of our beliefs. For if I find any of my judgments, intuitive or inferential, in direct conflict with a judgment of some other mind, there must be error somewhere: and if I have no more reason to suspect error in the other mind than in my own, reflective comparison between the two judgments necessarily reduces me temporarily to a state of neutrality. And though the total result in my mind is not exactly suspense of judgment, but an alternation and conflict between positive affirmation by one act of thought and the neutrality that is the result of another, it is obviously something very different from scientific certitude.

Now if the account given of the Morality of Common Sense in the preceding chapters be in the main correct, it seems clear that, generally speaking, its maxims do not fulfil the conditions just laid down. So long as they are left in the state of somewhat vague generalities, as we meet them in ordinary discourse, we are disposed to yield them unquestioning assent, and it may be fairly claimed that the assent is approximately universal--in the sense that any expression of dissent is eccentric and paradoxical. But as soon as we attempt to give them the definiteness which science requires, we find that we cannot do this without abandoning the universality of acceptance. We find, in some cases, that alternatives present themselves, between which it is necessary that we should decide; but between which we cannot pretend that Common Sense does decide, and which often seem equally or nearly equally plausible. In other cases the moral notion seems to resist all efforts to obtain from it a definite rule: in others it is found to comprehend elements which we have no means of reducing to a common standard, except by the application of the Utilitarian--or some similar--method. Even where we seem able to educe from Common Sense a more or less clear reply to the questions raised in the process of definition, the principle that results is qualified in so complicated a way that its self-evidence becomes dubious or vanishes altogether. And thus in each case what at first seemed like an intuition turns out to be either the mere expression of a vague impulse, needing regulation and limitation which it cannot itself supply, but which must be drawn from some other source: or a current opinion, the reasonableness of which has still to be shown by a reference to some other principle.

In order that this result may be adequately exhibited, I must ask the reader to travel with me again through the series of principles elicited from Common Sense in the previous chapters, and to examine them from a somewhat different point of view. Before, our primary aim was to ascertain impartially what the deliverances of Common Sense actually are: we have now to ask how far these enunciations can claim to be classed as Intuitive Truths.

The reader should observe that throughout this examination a double appeal is made; on the one hand to his individual moral consciousness, and, on the other hand, to the Common Sense of mankind, as expressed generally by the body of persons on whose moral judgment he is prepared to rely. I ask him (1) whether he can state a clear, precise, self-evident first principle, according to which he is prepared to judge conduct under each head: and (2) if so, whether this principle is really that commonly applied in practice, by those whom he takes to represent Common Sense.[260]

§ 3. If we begin by considering the duty of acting wisely, discussed in chap. iii., we may seem perhaps to have before us an axiom of undoubted self-evidence. For acting wisely appeared to mean taking the right means to the best ends; i.e. taking the means which Reason indicates to the ends which Reason prescribes. And it is evident that it must be right to act reasonably. Equally undeniable is the immediate inference from, or negative aspect of, this principle; that it is wrong to act in opposition to rational judgment. This, taken in connexion with the empirical fact of impulses in our minds conflicting with Reason, gives--as another self-evident principle--the maxim of Temperance or Self-control in its widest interpretation; i.e. ‘That reason should never give way to Appetite or Passion.’[261] And these principles have sometimes been enounced with no little solemnity as answering the fundamental question of Ethics and supplying the basis or summary of a doctrine of Practice.

But this statement of principles turns out to be one of those stages, so provokingly frequent in the course of ethical reflection, which, as far as practical guidance is concerned, are really brief circuits, leading us back to the point from which we started. Or rather, to prevent misapprehension, it should be observed that the maxims just given may be understood in two senses: in one sense they are certainly self-evident, but they are also insignificant: in another sense they include more or less distinctly a direction to an important practical duty, but as so understood they lose their self-evidence. For if the rules of Wisdom and Self-control mean (1) that we ought always to do what we see to be reasonable, and (2) that we are not to yield to any impulse urging us in an opposite direction; they simply affirm that it is our duty (1) generally, and (2) under special temptations, to do what we judge to be our duty;[262] and convey no information as to the method and principles by which duty is to be determined.

But if these rules are further understood (as they sometimes are understood) to prescribe the cultivation of a habit of acting rationally; that is, of referring each act to definitely conceived principles and ends, instead of allowing it to be determined by instinctive impulses; then I cannot see that the affirmation of this as an universal and absolute rule of duty is self-evidently true. For when Reason is considered not in the present as actually commanding, but as an End of which a fuller realisation has to be sought in the future; the point of view from which its sovereignty has to be judged is entirely changed. The question is no longer whether the dictates of Reason ought always to be obeyed, but whether the dictation of Reason is always a Good; whether any degree of predominance of Reason over mere Impulse must necessarily tend to the perfection of the conscious self of which both are elements. And it is surely not self-evident that this predominance cannot be carried too far; and that Reason is not rather self-limiting, in the knowledge that rational ends are sometimes better attained by those who do not directly aim at them as rational. Certainly Common Sense is inclined to hold that in many matters instinct is a better spring of action than reason: thus it is commonly said that a healthy appetite is a better guide to diet than a doctor’s prescription: and, again, that marriage is better undertaken as a consequence of falling in love than in execution of a tranquil and deliberate design: and we before observed (chap. iv.) that there is a certain excellence in services springing from spontaneous affection which does not attach to similar acts done from pure sense of duty. And in the same way experience seems to show that many acts requiring promptitude and vigour are likely to be more energetic and effective, and that many acts requiring tact and delicacy are likely to be more graceful and pleasant to others, if they are done not in conscious obedience to the dictates of Reason but from other motives. It is not necessary here to decide how far this view is true: it suffices to say that we do not know intuitively that it is not true to some extent; we do not know that there may not be--to use Plato’s analogy--over-government in the individual soul no less than in the state. The residuum, then, of clear intuition which we have so far obtained, is the insignificant proposition that it is our duty to do what we judge to be our duty.

§ 4. Let us pass now to what I have called the duties of the Affections, the rules that prescribe either love itself in some degree, or the services that naturally spring from it in those relations where it is expected and desired. Here, in the first place, the question how far we are bound to render these services when we do not feel the affection is answered differently in many cases by different persons, and no determination of the limit seems self-evident. And similarly if we ask whether affection itself is a duty; for on the one hand it is at least only partially within the control of the will, and in so far as it can be produced by voluntary effort, there is thought to be something unsatisfactory and unattractive in the result; and on the other hand, in certain relations it seems to be commonly regarded as a duty. On those points the doctrine of Common Sense is rather a rough compromise between conflicting lines of thought than capable of being deduced from a clear and universally accepted principle. And if we confine ourselves to the special relations where Common Sense admits no doubt as to the broad moral obligation of at least rendering such services as affection naturally prompts, still the recognised rules of external duty in these relations are, in the first place, wanting in definiteness and precision: and secondly, they do not, when rigorously examined, appear to be, or to be referable to, independent intuitions so far as the particularity of the duties is concerned. Let us take, for example, the duty of parents to children. We have no doubt about this duty as a part of the present order of society, by which the due growth and training of the rising generation is distributed among the adults. But when we reflect on this arrangement itself, we cannot see intuitively that it is the best possible. It may be plausibly maintained that children would be better trained, physically and mentally, if they were brought up under the supervision of physicians and philosophers, in large institutions maintained out of the general taxes. We cannot decide a priori which of these alternatives is preferable; we have to refer to psychological and sociological generalisations, obtained by empirical study of human nature in actual societies. If, however, we consider the duty of parents by itself, out of connexion with this social order, it is certainly not self-evident that we owe more to our own children than to others whose happiness equally depends on our exertions. To get the question clear, let us suppose that I am thrown with my family upon a desert island, where I find an abandoned orphan. Is it evident that I am less bound to provide this child, as far as lies in my power, with the means of subsistence, than I am to provide for my own children? According to some, my special duty to the latter would arise from the fact that I have brought them into being: but, if so, it would seem that on this principle I have a right to diminish their happiness, provided I do not turn it into a negative quantity; since, as without me they would not have existed at all, they can, as my children, have no claim upon me for more than an existence on the whole above zero in respect of happiness. We might even deduce a parental right (so far as this special claim is concerned) to extinguish children painlessly at any point of their existence, if only their life up to that point has been on the whole worth having; for how can persons who would have had no life at all but for me fairly complain that they are not allowed more than a certain quantity?[263] I do not mean to assert that these doctrines are even implicitly held by Common Sense: but merely to show that here, as elsewhere, the pursuit of an irrefragable intuition may lead us unaware into a nest of paradoxes.

It seems, then, that we cannot, after all, say that the special duty of parents to children, considered by itself, possesses clear self-evidence: and it was easy to show (cf. chap. iv.) that as recognised by Common Sense its limits are indeterminate.

The rule prescribing the duty of children to parents need not detain us; for to Common Sense it certainly seems doubtful whether this is not merely a particular case of gratitude; and we certainly have no clear intuition of what is due to parents who do not deserve gratitude. Again, the moral relation of husband and wife seems to depend chiefly upon contract and definite understanding. It is, no doubt, usually thought that Morality, as well as law prescribes certain conditions for all connubial contracts: and in our own age and country it is held that they should be (1) monogamic and (2) permanent. But it seems clear that neither of these opinions would be maintained to be a primary intuition. Whether these or any other legal regulations of the union of the sexes can be deduced from some intuitive principle of Purity, we will presently consider: but as for such conjugal duties as are not prescribed by Law, probably no one at the present day would maintain that there is any such general agreement as to what these are, as would support the theory that they may be known a priori.[264]

If, then, in these domestic relations--where the duties of affection are commonly recognised as so imperative and important--we can find no really independent and self-evident principles for determining them, I need not perhaps spend time in showing that the same is the case in respect of the less intimate ties (of kindred, neighbourhood, etc.) that bind us to other human beings. Indeed, this was made sufficiently manifest in our previous discussion of those other duties.

No doubt there are certain obligations towards human beings generally which are, speaking broadly, unquestionable: as, for example, the negative duty of abstaining from causing pain to others against their will, except by way of deserved punishment (whether this is to be placed under the head of Justice or Benevolence); and of making reparation for any pain which we may have caused. Still, when we consider the extent of these duties and try to define their limits,--when we ask how far we may legitimately cause pain to other men (or other sentient beings) in order to obtain happiness for ourselves or third persons, or even to confer a greater good on the sufferer himself, if the pain be inflicted against his will,--we do not seem able to obtain any clear and generally accepted principle for deciding this point, unless the Utilitarian formula be admitted as such. Again, as regards Reparation, there is, as we have seen, a fundamental doubt how far this is due for harm that has been involuntarily caused.

Similarly, all admit that we have a general duty of rendering services to our fellow-men and especially to those who are in special need, and that we are bound to make sacrifices for them, when the benefit that we thereby confer very decidedly outweighs the loss to ourselves; but when we ask how far we are bound to give up our own happiness in order to promote that of our fellows, while it can hardly be said that Common Sense distinctly accepts the Utilitarian principle, it yet does not definitely affirm any other.

And even the common principle of Gratitude, though its stringency is immediately and universally felt, seems yet essentially indeterminate: owing to the unsolved question whether the requital of a benefit ought to be proportionate to what it cost the benefactor, or to what it is worth to the recipient.

§ 5. When we pass to consider that element of Justice which presented itself as Gratitude universalised, the same difficulty recurs in a more complicated form. For here, too, we have to ask whether the Requital of Good Desert ought to be proportioned to the benefit rendered, or to the effort made to render it. And if we scrutinise closely the common moral notion of Retributive Justice, it appears, strictly taken, to imply the metaphysical doctrine of Free Will; since, according to this conception, the reasonableness of rewarding merit is considered solely in relation to the past, without regard to the future bad consequences to be expected from leaving merit without encouragement: and if every excellence in any one’s actions or productions seems referable ultimately to causes other than himself, the individual’s claim to requital, from this point of view, appears to vanish. On the other hand it is obviously paradoxical in estimating Desert to omit the moral excellences due to hereditary transmission and education: or even intellectual excellences, since good intention without foresight is commonly held to constitute a very imperfect merit. Even if we cut through this speculative difficulty by leaving the ultimate reward of real Desert to Divine Justice, we still seem unable to find any clear principles for framing a scale of merit. And much the same may be said, mutatis mutandis, of the scale of Demerit which Criminal Justice seems to require.

And even if these difficulties were overcome, we should still be only at the commencement of the perplexities in which the practical determination of Justice on self-evident principles is involved. For the examination of the contents of this notion, which we conducted in chap. v., furnished us not with a single definite principle, but with a whole swarm of principles, which are unfortunately liable to come into conflict with each other; and of which even those that when singly contemplated have the air of being self-evident truths, do not certainly carry with them any intuitively ascertainable definition of their mutual boundaries and relations. Thus, for example, in constructing an ideally perfect distribution of the means of happiness, it seems necessary to take into account the notion (as I called it) of Fitness, which, though often confounded with Desert, seems essentially distinct from it. For the social ‘distribuend’ includes not merely the means of obtaining pleasurable passive feelings, but also functions and instruments, which are important sources of happiness, but which it is obviously reasonable to give to those who can perform and use them. And even as regards the material means of comfort and luxury--wealth, in short--we do not find that the same amount produces the same result of happiness in every case: and it seems reasonable that the means of refined and varied pleasure should be allotted to those who have the corresponding capacities for enjoyment.[265] And yet these may not be the most deserving, so that this principle may clearly conflict with that of requiting Desert.

And either principle, as we saw, is liable to come into collision with the widely-accepted doctrine that the proper ultimate end of Law is to secure the greatest possible Freedom of action to all members of the community: and that all that any individual, strictly speaking, owes to any other is non-interference, except so far as he has further bound himself by free contract. But further, when we come to examine this principle in its turn, we find that, in order to be capable at all of affording a practical basis for social construction, it needs limitations and qualifications which make it look less like an independent principle than a “middle axiom” of Utilitarianism; and that it cannot without a palpable strain be made to cover the most important rights which Positive Law secures. For example, the justification of permanent appropriation is surely rather that it supplies the only adequate motive for labour than that it, strictly speaking, realises Freedom: nor can the questions that arise in determining the limits of the right of property--such as whether it includes the right of bequest--be settled by any deductions from this supposed fundamental principle. Nor again, can even the enforcement of contracts be fairly said to be a realisation of Freedom; for a man seems, strictly speaking, freer when no one of his volitions is allowed to cause an external control of any other. And if we disregard this as a paradoxical subtlety, we are met on the opposite side by the perplexity that if abstract Freedom is consistent with any engagement of future services, it must on the same grounds be consistent with such as are perpetual and unqualified, and so even with actual slavery. And this question becomes especially important when we consider that the duty of obeying positive laws has by many been reconciled with the abstract right of Freedom, by supposing a ‘tacit compact’ or understanding between each individual and the rest of his community. This Compact, however, seems on examination too clearly fictitious to be put forward as a basis of moral duty: as is further evident from the indefinitely various qualifications and reservations with which the ‘understanding’ has by different thinkers been supposed to be ‘understood.’ Hence many who maintain the ‘Birthright of Freedom’ consider that the only abstractedly justifiable social order is one in which no laws are imposed without the express consent of those who are to obey them. But we found it impossible really to construct society upon this basis: and such Representative Governments as have actually been established only appear to realise this idea by means of sweeping limitations and transparent fictions. It was manifest, too, that the maximum of what may be called Constitutional Freedom--i.e. the most perfect conformity between the action of a government and the wishes of the majority of its subjects--need by no means result in the realisation of the maximum of Civil Freedom in the society so governed.

But even if we could delineate to our satisfaction an ideal social order, including an ideal form of government, we have still to reconcile the duty of realising this with the conformity due to the actual order of society. For we have a strong conviction that positive laws ought, generally speaking, to be obeyed: and, again, our notion of Justice seemed to include a general duty of satisfying the expectations generated by custom and precedent. Yet if the actual order of society deviates very much from what we think ought to exist, the duty of conforming to it seems to become obscure and doubtful. And apart from this we cannot say that Common Sense regards it as an axiom that Laws ought to be obeyed. Indeed, all are agreed that they ought to be disobeyed when they command what is wrong: though we do not seem able to elicit any clear general view as to what remains wrong after it has been commanded by the sovereign. And, again, the positive laws that ought to be obeyed as such must be the commands issued by a (morally) rightful authority: and though these will ordinarily coincide with the commands legally enforced, we cannot say that this is always the case; for the courts may be temporarily subservient to a usurper; or, again, the sovereign hitherto habitually obeyed may be one against whom it has become right to rebel (since it is generally admitted that this is sometimes right). We require, then, principles for determining when usurpation becomes legitimate and when rebellion is justifiable: and we do not seem able to elicit these from Common Sense--except so far as it may be fairly said that on this whole subject Common Sense inclines more to the Utilitarian method than it does in matters of private morality.

Still less can we state the general duty of satisfying ‘natural expectations’--i.e. such expectations as an average man would form under given circumstances--in the form of a clear and precise moral axiom. No doubt a just man will generally satisfy customary claims: but it can hardly be maintained that the mere existence of a custom renders it clearly obligatory that any one should conform to it who has not already promised to do so; especially since bad customs can only be abolished by individuals venturing to disregard them.

§ 6. We have still to examine (whether as a branch of Justice or under a separate head) the duty of fulfilling express promises and distinct understandings. The peculiar confidence which moralists have generally felt in this principle is strikingly illustrated by those endeavours to extend its scope which we have just had occasion to notice: and it certainly seems to surpass in simplicity, certainty, and definiteness the moral rules that we have hitherto discussed. Here, then, if anywhere, we seem likely to find one of those ethical axioms of which we are in search. Now we saw that the notion of a Promise requires several qualifications not commonly noticed to make it precise: but this alone is no reason why it may not be fitly used in framing a maxim, which when enunciated and understood will properly claim universal acceptance as self-evident. For similarly the uninstructed majority of mankind could not define a circle as a figure bounded by a line of which every point is equidistant from the centre: but nevertheless, when the definition is explained to them, they will accept it as expressing the perfect type of that notion of roundness which they have long had in their minds. And the same potential universality of acceptance may, I think, be fairly claimed for the propositions that the promise which the Common Sense of mankind recognises as binding must be understood by promiser and promisee in the same sense at the time of promising, and that it is relative to the promisee and capable of being annulled by him, and that it cannot override determinate[266] prior obligations.

But the case is different with the other qualifications which we had to discuss. When once the question of introducing these has been raised, we see that Common Sense is clearly divided as to the answer. If we ask (e.g.) how far our promise is binding if it was made in consequence of false statements, on which, however, it was not understood to be conditional; or if important circumstances were concealed, or we were in any way led to believe that the consequences of keeping the promise would be different from what they turn out to be; or if the promise was given under compulsion; or if circumstances have materially altered since it was given, and we find that the results of fulfilling it will be different from what we foresaw when we promised; or even if it be only our knowledge of consequences which has altered, and we now see that fulfilment will entail on us a sacrifice out of proportion to the benefit received by the promisee; or perhaps see that it will even be injurious to him though he may not think so;--different conscientious persons would answer these and other[267] questions (both generally and in particular cases) in different ways: and though we could perhaps obtain a decided majority for some of these qualifications and against others, there would not in any case be a clear consensus either way. And, moreover, the mere discussion of these points seems to make it plain that the confidence with which the “unsophisticated conscience” asserts unreservedly “that promises ought to be kept,” is due to inadvertence; and that when the qualifications to which we referred are fairly considered, this confidence inevitably changes into hesitation and perplexity. It should be added, that some of these qualifications themselves suggest a reference to the more comprehensive principle of Utilitarianism, as one to which this particular rule is naturally subordinate.

Again, reflection upon the place of this duty in a classified system of moral obligations tends to confirm our distrust of the ordinary enunciations of Common Sense in respect of it. For, as was seen, Fidelity to promises is very commonly ranked with Veracity; as though the mere fact of my having said that I would do a thing were the ground of my duty to do it. But on reflection we perceive that the obligation must be regarded as contingent on the reliance that another has placed on my assertion: that, in fact, the breach of duty is constituted by the disappointment of expectations voluntarily raised. And when we see this we become less disposed to maintain the absoluteness of the duty: it seems now to depend upon the amount of harm done by disappointing expectations; and we shrink from saying that the promise ought to be kept, if the keeping it would involve an amount of harm that seems decidedly to outweigh this.

The case of Veracity we may dismiss somewhat more briefly, as here it was still more easy to show that the common enunciation of the unqualified duty of Truth-speaking is made without full consideration, and cannot approve itself to the reflective mind as an absolute first principle. For, in the first place, we found no clear agreement as to the fundamental nature of the obligation; or as to its exact scope, i.e. whether it is our actual affirmation as understood by the recipient which we are bound to make correspondent to fact (as far as we can), or whatever inferences we foresee that he is likely to draw from this, or both. To realise perfect Candour and Sincerity, we must aim at both: and we no doubt admire the exhibition of these virtues: but few will maintain that they ought to be exhibited under all circumstances. And, secondly, it seems to be admitted by Common Sense, though vaguely and reluctantly, that the principle, however defined, is not of universal application; at any rate it is not thought to be clearly wrong that untruths should be told to children, or madmen, or invalids, or by advocates, or to enemies or robbers, or even to persons who ask questions which they have no right to ask (if a mere refusal to answer would practically reveal an important secret). And when we consider the limitations generally admitted, it seems still more plain than in the last case, that they are very commonly determined by utilitarian reasonings, implicit or explicit.

§ 7. If, then, the prescriptions of Justice, Good Faith, and Veracity, as laid down by Common Sense, appear so little capable of being converted into first principles of scientific Ethics, it seems scarcely necessary to inquire whether such axioms can be extracted from the minor maxims of social behaviour, such as the maxim of Liberality or the rules restraining the Malevolent Affections: or, again, from such virtues as Courage and Humility, which we found it difficult to class as either social or self-regarding. Indeed, it was made plain in chap. viii. that as regards the proper regulation of resentment, Common Sense can only be saved from inconsistency or hopeless vagueness by adopting the ‘interest of society’ as the ultimate standard: and in the same way we cannot definitely distinguish Courage from Foolhardiness except by a reference to the probable tendency of the daring act to promote the wellbeing of the agent or of others, or to some definite rule of duty prescribed under some other notion.

It is true that among what are commonly called “duties to self” we find the duty of self-preservation prescribed with apparent absoluteness,--at least so far as the sacrifice of one’s life is not imperatively required for the preservation of the lives of others, or for the attainment of some result conceived to be very important to society. I think, however, that when confronted with the question of preserving a life which we can foresee will be both miserable and burdensome to others--e.g. the life of a man stricken with a fatal disease which precludes the possibility of work of any kind, during the weeks or months of agony that remain to him,--though Common Sense would still deny the legitimacy of suicide, even under these conditions, it would also admit the necessity of finding reasons for the denial. This admission would imply that the universal wrongness of suicide is at any rate not self-evident. And the reasons that would be found--so far as they did not ultimately depend upon premises drawn from Revelational Theology--would, I think, turn out to be utilitarian, in a broad sense of the term: it would be urged that if any exceptions to the rule prohibiting suicide were allowed, dangerous encouragement would be given to the suicidal impulse in other cases in which suicide would really be a weak and cowardly dereliction of social duty: it would also probably be urged that the toleration of suicide would facilitate secret murders. In short, the independent axiom of which we are in search seems to disappear on close examination in this case no less than in others.

So again, reflection seems to show that the duties of Temperance, Self-control, and other cognate virtues, are only clear and definite in so far as they are conceived as subordinate either to Prudence (as is ordinarily the case), or to Benevolence or some definite rule of social duty, or at least to some end--such as ‘furtherance of moral progress’[268]--of which the conception involves the notion of duty supposed to be already determinate. Certainly the authority of Common Sense cannot be fairly claimed for any restriction even of the bodily appetites for food and drink, that is not thus subordinated.

In the case, however, of the sexual appetite, a special regulation seems to be prescribed on some independent principle under the notion of Purity or Chastity. In chap. ix. of this Book, where we examined this notion, it appeared that Common Sense is not only not explicit, but actually averse to explicitness, on this subject. As my aim in the preceding chapters was to give, above all things, a faithful exposition of the morality of Common Sense, I allowed my inquiry to be checked by this (as it seemed) clearly recognisable sentiment. But when it becomes our primary object to test the intuitive evidence of the moral principles commonly accepted, it seems necessary to override this aversion: for we can hardly ascertain whether rational conviction is attainable as to the acts allowed and forbidden under this notion and its opposite, without subjecting it to the same close scrutiny that we have endeavoured to give to the other leading notions of Ethics. Here the briefest account of such a scrutiny will be sufficient. I am aware that in giving even this I cannot but cause a certain offence to minds trained in good moral habits: but I trust I may claim the same indulgence as is commonly granted to the physiologist, who also has to direct the student’s attention to objects which a healthy mind is naturally disinclined to contemplate.

§ 8. What, then, is the conduct which Purity forbids (for the principle is more easily discussed in its negative aspect)? As the normal and obvious end of sexual intercourse is the propagation of the species, some have thought that all indulgence of appetite, except as a means to this end, should be prohibited. But this doctrine would lead to a restriction of conjugal intercourse far too severe for Common Sense. Shall we say, then, that Purity forbids such indulgence except under the conditions of conjugal union defined by Law? But this answer, again, further reflection shows to be unsatisfactory. For, first, we should not, on consideration, call a conjugal union impure, merely because the parties had wilfully omitted to fulfil legal conditions, and had made a contract which the law declined to enforce. We might condemn their conduct, but we should not apply to it this notion. And, secondly, we feel that positive law may be unfavourable to Purity, and that in fact Purity, like Justice, is something which the law ought to maintain, but does not always. We have to ask, then, what kind of sexual relations we are to call essentially impure, whether countenanced or not by Law and Custom? There appear to be no distinct principles, having any claim to self-evidence, upon which the question can be answered so as to command general assent. It would be difficult even to state such a principle for determining the degree of consanguinity between husband and wife which constitutes a union incestuous; although the aversion with which such unions are commonly regarded is a peculiarly intense moral sentiment; and the difficulty becomes indefinitely greater when we consider the rationale of prohibited degrees of affinity. Again, probably few would stigmatise a legal polygynous connexion as impure, however they might disapprove of the law and of the state of society in which such a law was established: but if legal Polygyny is not impure, is Polyandry, when legal and customary--as is not unfrequently the case among the lower races of man--to be so characterised? and if not, on what rational principle can the notion be applied to institutions and conduct? Again, where divorce by mutual consent, with subsequent marriage, is legalised, we do not call this an offence against Purity: and yet if the principle of free change be once admitted, it seems paradoxical to distinguish purity from impurity merely by less rapidity of transition;[269] and to condemn as impure even ‘Free Love,’ in so far as it is earnestly advocated as a means to a completer harmony of sentiment between men and women, and not to mere sensual license.

Shall we, then, fall back upon the presence of mutual affection (as distinguished from mere appetite) as constituting the essence of pure sexual relations? But this, again, while too lax from one point of view, seems from another too severe for Common Sense: as we do not condemn marriages without affection as impure, although we disapprove of them as productive of unhappiness. Such marriages, indeed, are sometimes stigmatised as “legalised prostitution,” but the phrase is felt to be extravagant and paradoxical; and it is even doubtful whether we do disapprove of them under all circumstances; as (e.g.) in the case of royal alliances.

Again, how shall we judge of such institutions as those of Plato’s Commonwealth, establishing community of women and children, but at the same time regulating sexual indulgence with the strictest reference to social ends? Our habitual standards seem inapplicable to such novel circumstances.

The truth seems to be, that reflection on the current sexual morality discovers to us two distinct grounds for it: first and chiefly, the maintenance of a certain social order, believed to be most conducive to the prosperous continuance of the human race: and, secondly, the protection of habits of feeling in individuals believed to be generally most important to their perfection or their happiness. We commonly conceive that both these ends are to be attained by the same regulations: and in an ideal state of society this would perhaps be the case: but in actual life there is frequently a partial separation and incompatibility between them. But further, if the repression of sexual license is prescribed merely as a means to these ends, it does not seem that we can affirm as self-evident that it is always a necessary means in either case: on the contrary, it seems clear that such an affirmation would be unreliable apart from empirical confirmation. We cannot reasonably be sure, without induction from sociological observations, that a certain amount of sexual license will be incompatible with the maintenance of population in sufficient numbers and good condition. And if we consider the matter in its relation to the individual’s perfection, it is certainly clear that he misses the highest and best development of his emotional nature, if his sexual relations are of a merely sensual kind: but we can hardly know a priori that this lower kind of relation interferes with the development of the higher (nor indeed does experience seem to show that this is universally the case). And this latter line of argument has a further difficulty. For the common opinion that we have to justify does not merely condemn the lower kind of development in comparison with the higher, but in comparison with none at all. Since we do not positively blame a man for remaining celibate (though we perhaps despise him somewhat unless the celibacy is adopted as a means to a noble end): it is difficult to show why we should condemn--in its bearing on the individual’s emotional perfection solely--the imperfect development afforded by merely sensual relations.

§ 9. Much more might be said to exhibit the perplexities in which the attempt to define the rule of Purity or Chastity involves us. But I do not desire to extend the discussion beyond what is necessary for the completion of my argument. It seems to me that the conclusion announced in § 2 of this chapter has now been sufficiently justified. We have examined the moral notions that present themselves with a prima facie claim to furnish independent and self-evident rules of morality: and we have in each case found that from such regulation of conduct as the Common Sense of mankind really supports, no proposition can be elicited which, when fairly contemplated, even appears to have the characteristic of a scientific axiom. It is therefore scarcely needful to proceed to a systematic examination of the manner in which Common Sense provides for the co-ordination of these principles. In fact, this question seems to have been already discussed as far as is profitable: for the attempt to define each principle singly has inevitably led us to consider their mutual relations: and it was in the cases where two moral principles came into collision that we most clearly saw the vagueness and inconsistency with which the boundaries of each are determined by Common Sense. For example, the distinction between perfectly stringent moral obligations, and such laxer duties as may be modified by a man’s own act, is often taken: and it is one which, as we saw, is certainly required in formulating the Common-Sense view of the effect of a promise in creating new obligations: but it is one which we cannot apply with any practical precision, because of the high degree of indeterminateness which we find in the common notions of duties to which the highest degree of stringency is yet commonly attributed.

It only remains to guard my argument from being understood in a more sweeping sense than it has been intended or is properly able to bear. Nothing that I have said even tends to show that we have not distinct moral impulses, claiming authority over all others, and prescribing or forbidding kinds of conduct as to which there is a rough general agreement, at least among educated persons of the same age and country. It is only maintained that the objects of these impulses do not admit of being scientifically determined by any reflective analysis of common sense. The notions of Benevolence, Justice, Good Faith, Veracity, Purity, etc., are not necessarily emptied of significance for us, because we have found it impossible to define them with precision. The main part of the conduct prescribed under each notion is sufficiently clear: and the general rule prescribing it does not necessarily lose its force because there is in each case a margin of conduct involved in obscurity and perplexity, or because the rule does not on examination appear to be absolute and independent. In short, the Morality of Common Sense may still be perfectly adequate to give practical guidance to common people in common circumstances: but the attempt to elevate it into a system of Intuitional Ethics brings its inevitable imperfections into prominence without helping us to remove them.[270]

FOOTNOTES:

[256] Hence the practical importance of the Formal test of Rightness, on which Kant insists: cf. ante, chap. i. § 3 of this Book.Return to passage

[257] The final arbiter, that is, on the question what the rule is: of course the moral obligation to conform to any rule laid down by an external authority must rest on some principle which the individual’s reason has to apply.Return to passage

[258] Cf. Book i. chap. iii. § 2.Return to passage

[259] Cf. Book i. chap. iii. § 2.Return to passage

[260] It has been fairly urged that I leave the determinations of Common Sense very loose and indefinite: and if I were endeavouring to bring out a more positive result from this examination, I ought certainly to have discussed further how we are to ascertain the ‘experts’ on whose ‘consensus’ we are to rely, in this or any other subject. But my scientific conclusions are to so great an extent negative, that I thought it hardly necessary to enter upon this discussion. I have been careful not to exaggerate the doubtfulness and inconsistency of Common Sense: should it turn out to be more doubtful and inconsistent than I have represented it, my argument will only be strengthened.Return to passage

[261] In chap. ix. Temperance was regarded as subordinate to, or a special application of, Prudence or Self-love moralised: because this seemed to be on the whole the view of Common Sense, which in the preceding chapters I have been endeavouring to follow as closely as possible, both in stating the principles educed and in the order of their exposition.Return to passage

[262] The admission that these maxims are self-evident must be taken subject to the distinction before established between “subjective” and “objective” rightness. It is a necessary condition of my acting rightly that I should not do what I judge to be wrong: but if my judgment is mistaken, my action in accordance with it will not be “objectively” right.Return to passage

[263] It may be noticed that a view very similar to this has often been maintained in considering what God is in justice bound to do for human beings in consequence of the quasi-parental relation in which He stands to them.Return to passage

[264] It is not irrelevant to notice the remarkable divergence of suggestions for the better regulation of marriage, to which reflective minds seem to be led when they are once set loose from the trammels of tradition and custom; as exhibited in the speculations of philosophers in all ages--especially of those (as e.g. Plato) to whom we cannot attribute any sensual or licentious bias.Return to passage

[265] For example, many seem to hold that wealth is, roughly speaking, rightly distributed when cultivated persons have abundance and the uncultivated a bare subsistence, since the former are far more capable of deriving happiness from wealth than the latter.Return to passage

[266] I refer later (p. 360) to the difficulty before noticed in respect of such prior obligations as are not strictly determinate.Return to passage

[267] I have omitted as less important the special questions connected with promises to the dead or to the absent, or where a form of words is prescribed.Return to passage

[268] It was this conception that seemed to give the true standard of Humility, considered as a purely internal duty.Return to passage

[269] It should be observed that I am not asking for an exact quantitative decision, but whether we can really think that the decision depends upon considerations of this kind.Return to passage

[270] It should be observed that the more positive treatment of Common-sense Morality, in its relation to Utilitarianism, to which we shall proceed in chap. iii. of the following Book, is intended as an indispensable supplement of the negative criticism which has just been completed.Return to passage