Popular Science Monthly/Volume 37/June 1890/On Justice II
By HERBERT SPENCER.
IV. The Sentiment of Justice.—Acceptance of the doctrine of organic evolution determines certain ethical conceptions. The doctrine implies that the numerous organs in each of the innumerable species of animals, have been either directly or indirectly molded into fitness for the requirements of life by constant converse with those requirements. Simultaneously, through nervous modifications, there have been developments of the sensations, instincts, emotions, and intellectual aptitudes, needed for the appropriate uses of these organs; as we see in caged rodents that exercise their incisors by purposeless gnawing, in gregarious creatures which are miserable if they can not join their fellows, in beavers which, kept in confinement, show their passion for dam-building by heaping up whatever sticks and stones they can find.
Has this process of mental adaptation ended with primitive man? Are human beings incapable of having their feelings and ideas progressively adjusted to the modes of life imposed on them by the social state into which they have grown? Shall we suppose that the nature which fitted them to the exigencies of savage life has remained unchanged, and will remain unchanged, by the exigencies of civilized life? Or shall we suppose that this aboriginal nature, by repression of some traits and fostering of others, is made to approach more and more to a nature which finds developed society its appropriate environment, and the required activities its normal ones? There are many believers in the doctrine of evolution who seem to have no faith in the continued adaptability of mankind. While glancing but carelessly at the evidence furnished by comparisons of different human races with one another, and of the same races in different ages, they ignore entirely the induction from the phenomena of life at large. But if there is an abuse of the deductive method of reasoning there is also an abuse of the inductive method. One who refused to believe that a new moon would in a fortnight become full, and, disregarding observations accumulated throughout the past, insisted on watching the successive phases for three weeks before he was convinced, would be considered inductive in an irrational degree. But there might not unfairly be classed with him those who. slighting the inductive proof of unlimited adjustability, bodily and mental, which the animal kingdom at large presents, will not admit the adjustability of human nature to social life until the adjustment has taken place: nay, even ignore the evidence that it is taking place.
Here we shall assume it to be an inevitable inference from the doctrine of organic evolution, that the highest type of living being, no less than all lower types, must go on molding itself to those requirements which circumstances impose. And we shall, by implication, assume that moral changes are among the changes thus wrought out.
The fact that when surfeit of a favorite food has caused sickness, there is apt to follow an aversion to that food, shows how, in the region of the sensations, experiences establish associations which influence conduct. And the fact that the house in which a wife or child died, or in which a long illness was suffered, becomes so associated with painful states of mind as to be shunned, sufficiently illustrates, in the emotional region, the mode in which actions may be determined by mental connections formed in the course of life. When the circumstances of a species make certain relations between conduct and consequence habitual, the appropriately-linked feelings may come to characterize the species. Either inheritances of modifications produced by habit, or more numerous survivals of individuals having nervous structures which have varied in fit ways, gradually form guiding tendencies, prompting appropriate behavior and deterring from inappropriate. The contrast between fearless birds found on islands never before visited by man, and the birds around us, which show fear of man immediately they are out of the nest, exemplifies such adaptations.
By virtue of this process there have been produced to some extent among lower creatures, and there are being further produced in man, the sentiments appropriate to social life. Aggressive actions, while they are habitually injurious to the group in which they occur, are not unfrequently injurious to the individuals committing them; since, though certain pleasures may be gained by them, they often entail pains greater than the pleasures. Conversely, conduct restrained within the required limits, calling out no antagonistic passions, favors harmonious co-operation, profits the group, and, by implication, profits the average of its individuals. Consequently, there results, other things equal, a tendency for groups formed of members having this adaptation of nature, to survive and spread.
Among the social sentiments thus evolved, one of chief importance is the sentiment of justice. Let us now consider more closely its nature.
Stop an animal's nostrils, and it makes frantic efforts to free its head. Tie its limbs together, and its struggles to get them at liberty are violent. Chain it by the neck or leg, and it is some time before it ceases its attempts to escape. Put it in a cage, and it long continues restless. Generalizing these instances we see that in proportion as the restraints on actions by which life is maintained are extreme, the resistances to them are great. Conversely, the eagerness with which a bird seizes the opportunity for taking flight, and the joy of a dog when liberated, show how strong is the love of unfettered movement.
Displaying like feelings in like ways, man displays them in other and wider ways. He is irritated by invisible restraints as well as by visible ones; and as his evolution becomes higher, he is affected by circumstances and actions which in more remote ways aid or hinder the pursuit of ends. A parallel will elucidate this truth. Primitively the sentiment of property is gratified only by possession of food and shelter, and, presently, of clothing; but afterward it is gratified by possession of the weapons and tools which aid in obtaining these, then by possession of the raw materials serving for making weapons and tools and for other purposes, then by possession of the coin which purchases them as well as things at large, then by possession of promises to pay exchangeable for the coin, then by a lien on a banker, registered in a pass-book. That is, there comes to be pleasure in an ownership more and more abstract and remote from material satisfactions. Similarly with the sentiment of justice. Beginning with the joy felt in ability to use the bodily powers and gain the resulting benefits, accompanied by irritation at direct interferences, this gradually responds to wider relations: being excited now by the incidents of personal bondage, now by those of political bondage, now by those of class privilege, and now by small political changes. Eventually, this sentiment, sometimes so little developed in the negro that he jeers at a liberated companion because he has no master to take care of him, becomes so much developed in the Englishman that the slightest infraction of some mode of formal procedure at a public meeting or in Parliament which can not intrinsically concern him, is vehemently opposed because in some distant and indirect way it may help to give possible powers to unnamed authorities who may perhaps impose unforeseen burdens or restrictions.
Clearly, then, the egoistic sentiment of justice is a subjective attribute which answers to that objective requirement constituting justice—the requirement that each adult shall receive the good and evil effects of his own nature. For unless the faculties of all kinds have free play, these results can not be gained or suffered, and unless there exists a sentiment which prompts maintenance of the sphere for this free play, it will be trenched upon and the free play impeded.
While we may thus understand how the egoistic sentiment of justice is developed, it is much less easy to understand how there is developed the altruistic sentiment of justice. On the one hand, the implication is that the altruistic sentiment of justice can come into existence only in the course of adaptation to social life. On the other hand the implication is that social life is made possible only by maintenance of those equitable relations which imply the altruistic sentiment of justice. How can these reciprocal requirements be fulfilled?
The answer is that the altruistic sentiment of justice can come into existence only by the aid of a sentiment which temporarily supplies its place and restrains the actions prompted by pure egoism—a pro-altruistic sentiment of justice as we may call it. This has several components which we must successively glance at.
The first deterrent from aggression is one which we see among animals at large—the fear of retaliation. Among creatures of the same species the food obtained by one or place of vantage taken possession of by it, is in some measure insured to it by the dread which most others feel of the vengeance which may follow any attempt to take it away; and among men, especially during primitive stages of social life, it is chiefly such dread which secures for each man free scope for his activities, and exclusive use of whatever they bring him.
A further restraint is the fear of reprobation shown by unconcerned members of the group. Though in the expulsion of a "rogue" elephant from the herd, or the slaying of a sinning member of the flock by rooks or storks, we see that even among animals individuals suffer from an adverse public opinion; yet it is scarcely probable that among animals expectation of general dislike prevents encroachment. But among mankind, "looking before and after" to a greater extent, the thought of social disgrace is usually an additional check on ill-behavior of man to man.
To these feelings, which come into play before there is any social organization, have to be added those which arise after political authority establishes itself. When a successful leader in war acquires permanent headship, and comes to have at heart the maintenance of his power, there arises in him a desire to prevent the trespasses of his people one against another; since the resulting dissensions weaken his tribe. The rights of personal vengeance and, as in feudal times, of private war, are restricted; and, simultaneously, there grow up interdicts on the acts which cause them. Dread of the penalties which follow breaches of these, is an added restraint.
Ancestor-worship in general, developing as the society develops into special propitiation of the dead chiefs ghost, and presently the dead king's ghost, gives to the injunctions he uttered during life increased sanctity; and when, with establishment of the cult, he becomes a god, his injunctions become divine commands with dreaded punishments for breaches of them.
These four kinds of fear co-operate. The dread of retaliation, the dread of social dislike, the dread of legal punishment, and the dread of divine vengeance, united in various proportions, form a body of feeling which checks the primitive tendency to pursue the objects of desire without regard to the interests of fellow-men. Containing none of the altruistic sentiment of justice, properly so called, this pro-altruistic sentiment of justice serves temporarily to cause respect for one another's claims, and so to make social co-operation possible.
Creatures which become gregarious tend to become sympathetic in degrees proportionate to their intelligences. Not, indeed, that the resulting sympathetic tendency is exclusively, or even mainly, of that kind which the words ordinarily imply; for in some there is little beyond sympathy in fear, and in others little beyond sympathy in ferocity. All that is meant is that in gregarious creatures a feeling displayed by one is apt to arouse kindred feelings in others, and is apt to do this in proportion as others are intelligent enough to appreciate the signs of the feeling. In two chapters of the Principles of Psychology—Sociality and Sympathy and Altruistic Sentiments—I have endeavored to show how sympathy in general arises, and how there is eventually produced altruistic sympathy.
The implication is, then, that the associated state having been maintained among men by the aid of the pro-altruistic sentiment of justice, there have been maintained the conditions under which the altruistic sentiment of justice itself can develop. In a permanent group there occur, generation after generation, incidents simultaneously drawing from its members manifestations of like emotions—rejoicings over victories and escapes, over prey jointly captured, over supplies of wild food discovered; as well as laments over defeats, scarcities, inclemencies, etc. And to these greater pleasures and pains felt in common by all, and so expressing themselves that each sees in others the signs of feelings like those which he has and is displaying, must be added the smaller pleasures and pains daily resulting from meals taken together, amusements, games, and from the not infrequent adverse occurrences which affect several persons at once. Thus there is fostered that sympathy which makes the altruistic sentiment of justice possible.
But the altruistic sentiment of justice is slow in assuming a high form, partly because its primary component does not become highly developed until a late phase of progress, partly because it is relatively complex, and partly because it implies a stretch of imagination not possible for low intelligences. Let us glance at each of these reasons.
Every altruistic feeling presupposes experience of the corresponding egoistic feeling. As, until pain has been felt there can not be sympathy with pain, and as one who has no ear for music can not enter into the pleasure which music gives to others; so, the altruistic sentiment of justice can arise only after the egoistic sentiment of justice has arisen. Hence where this has not been developed in any considerable degree, or has been repressed by a social life of an adverse kind, the altruistic sentiment of justice remains rudimentary.
The complexity of the sentiment becomes manifest on observing that it is not concerned only with concrete pleasures and pains, but is concerned mainly with certain of the circumstances under which these are obtainable or preventable. As the egoistic sentiment of justice is gratified by maintenance of those conditions which render achievement of satisfactions unimpeded, and irritated by the breaking of those conditions, it results that the altruistic sentiment of justice requires for its excitement not only the ideas of such satisfactions, but also the ideas of those conditions which are in the one case maintained and in the other case broken.
Evidently, therefore, to be capable of this sentiment in a developed form, the faculty of mental representation must be relatively great. Where the feelings with which there is to be sympathy are simple pleasures and pains, the higher gregarious animals occasionally display it: pity and generosity are from time to time felt by them as well as by human beings. But to conceive simultaneously not only the feelings produced in another, but the plexus of acts and relations involved in the production of such feelings, presupposes the putting together in thought of more elements than an inferior creature can grasp at the same time. And when we come to those most abstract forms of the sentiment of justice which are concerned with public arrangements, we see that only the higher varieties of men are capable of so conceiving the ways in which good or bad institutions and laws will eventually affect their spheres of action, as to be prompted to support or oppose them; and that only among these, therefore, is there excited under such conditions that sympathetic sentiment of justice which makes them defend the political interests of fellow-citizens.
There is, of course, a close connection between the sentiment of justice and the social type. Predominant militancy, by the coercive form of organization it implies, alike in the fighting body and in the society which supports it, affords no scope for the egoistic sentiment of justice; but, contrariwise, perpetually tramples on it, and at the same time the sympathies which originate the altruistic sentiment, of justice are perpetually seared bymilitant activities. Contrariwise, in proportion as the régime of status is replaced by the régime of contract, or, in other words, as fast as voluntary co-operation, which characterizes the industrial type of society, becomes more general than involuntary co-operation, which characterizes the militant type of society, individual activities become less restrained, and the sentiment which rejoices in the scope for them is encouraged; while, simultaneously, the occasions for repressing the sympathies become less frequent. Hence during warlike phases of social life the sentiment of justice retrogrades, while it advances during peaceful phases, and can reach its full development only in a permanently peaceful state.
V. The Idea of Justice.—While describing the sentiment of justice, the way has been prepared for describing the idea of justice. Though the two are intimately connected they may be clearly distinguished.
One who had dropped his pocket-book, and, turning round, finds that another who has picked it up will not surrender it, is indignant. If the goods sent home by a shopkeeper are not those he purchased, he protests against the fraud. Should his seat at a theatre be usurped during a momentary absence he feels himself ill-used. Morning noises from a neighbor's poultry he complains of as grievances. And meanwhile he sympathizes with the anger of a friend who has been led by false statements to join a disastrous enterprise, or whose action at law has been rendered futile by a flaw in the procedure. But though in these cases his sense of justice is offended, he may fail to distinguish the essential trait which in each case causes the offense. He may have the sentiment of justice in full measure while his idea of justice remains vague.
This relation between sentiment and idea is a matter of course. The ways in which men trespass on one another become more numerous in their kinds, and more involved, as society grows more complex; and they must be experienced in their many forms, generation after generation, before analysis can make clear the essential distinction between legitimate acts and illegitimate acts.
A special reason for this should be recognized. Ideas as well as sentiments must on the average be adjusted to the social state. Hence, as war has been frequent or habitual in nearly all societies, such ideas of justice as have existed have been perpetually confused by the conflicting requirements of internal amity and external enmity.
Already it has been made clear that the idea of justice, or at least the idea of human justice, contains two elements. On the one hand there is that positive element implied by recognition of each man's claims to unimpeded activities and the benefits they bring. On the other hand there is that negative element implied by the consciousness of limits which the presence of other men having like claims necessitates. Two opposite traits in these two components especially arrest the attention.
Inequality is the primordial idea suggested. For if the principle is that each shall receive the benefits and evils due to his own nature and consequent conduct, then since men differ in their powers there must be differences in the results of their actions. Unequal amounts of benefit are implied.
Mutual limitations to men's actions suggest a contrary idea. When it is seen that if each pursues his ends regardless of his neighbor's claims, quarrels must be caused and social co-operation hindered, there arises the consciousness that bounds must be set to the doings of each; and the thought of spheres of action bounded by one another, involves the conception of equality.
Unbalanced appreciations of these two factors in human justice lead to divergent moral and social theories, which we must now glance at.
In some of the rudest groups of men the appreciations are no higher than those which we see among inferior gregarious animals. Here the stronger takes what he pleases from the weaker without exciting general reprobation; while, elsewhere, there is practiced and tacitly approved something like communism. But where habitual war has developed political organization, the idea of inequality becomes predominant. If not among the conquered, who are made slaves, yet among the conquerors, who naturally think of that which conduces to their interest as that which ought to be, there is fostered this element in the conception of justice which asserts that superiority shall have the benefits of superiority.
Though the Platonic dialogues may not be taken as measures of Greek belief, yet we may reasonably assume that the things they take for granted were currently accepted. Socrates inquires—"Do you admit that it is just for subjects to obey their rulers?" "I do, "replies Thrasymachus. Though otherwise in antagonism, the two agree in this conception of what is just. At a later stage of the inquiry, Glaucon, describing a current opinion, says:
"This, as they affirm, is the origin and nature of justice:—there is a mean or compromise between the best of all, which is to do and not to suffer injustice, and the worst of all, which is to suffer without the power of retaliation; and justice being the mean between the two, is tolerated not as good, but as the lesser evil." And immediately afterward it is said that men "are only diverted into the path of justice by the force of law."
In this significant passage several things are to be noted. There is first a recognition of the fact, above indicated, that at an early stage the practice of justice is initiated by the dread of retaliation, and the conviction, suggested by experience, that it is on the whole the best to avoid aggression and to respect the limit which compromise implies; there is no recognition of intrinsic flagitiousness in aggression, but only of its impolicy. Further, the limit to each man's actions, described as "a mean of compromise," and respect for which is called "the path of justice," is said to be established only "by the force of law." Law is not considered as an expression of justice otherwise cognizable, but as itself the source of justice; and hence results the meaning of the preceding proposition, that it is just to obey the law. Thirdly, there is an implication that were it not for retaliation and legal penalties, the stronger might with propriety take advantage of the weaker. There is a half-expressed belief that superiority ought to have the advantages of superiority; inequality occupies a prominent place, while equality makes no definite appearance.
The conception here indicated that justice consists in legality, is, toward the close of Book IV, developed into the conception that justice consists "in each of the three classes doing the work of its own class": carpenter, shoemaker, or what not, "doing each his own business, and not another's"; and all obeying the class whose business it is to rule. Thus the idea of justice is made to include the idea of inequality. Though there is some recognition of equality of positions and claims among members of the same class, yet the regulations respecting community of wives, etc., in the guardian-class, have for their avowed purpose to establish, even within that class, unequal privileges for the benefit of the superior.
But now observe that while in the Greek conception of justice there predominates the idea of inequality, while the idea of equality is, the inequality refers, not to the natural achievement of greater rewards by greater merits, but to the artificial apportionment of greater rewards to greater merits. It is an inequality mainly established by authority. The gradations in the civil organization are of the same nature as those in the military organization. Regimentation pervades both, and the idea of justice is everywhere conformed to the traits of the social structure.
And this is the idea of justice proper to the militant type at large, as we are again shown throughout Europe in subsequent ages. It will suffice to point out that along with the different law-established positions and privileges of different ranks, there went gradations in the amounts paid in composition for crimes according to the rank of the injured. And how completely the idea of justice was determined by the idea of rightly-existing inequality, is shown by the condemnation of serfs who escaped into the towns and were said to have "unjustly" withdrawn themselves from the control of their lords.
Thus, as might be expected, we find that while the struggle for existence between societies is going on actively, recognition of the primary factor in justice which is common to life at large, human and sub-human, is very imperfectly qualified by recognition of the secondary factor. That which we may distinguish as the brute element in the conception is but little mitigated by the human element.
All movements are rhythmical, and among others social movements, with their accompanying doctrines. After that conception of justice in which the idea of inequality unduly predominates, comes a conception in which the idea of equality unduly predominates.
A recent example of such reactions is furnished by the ethical theory of Bentham. As is shown by the following extract from Mr. Mill's Utilitarianism (p. 91), the idea of inequality here entirely disappears:
The Greatest-Happiness Principle is a mere form of words without rational signification, Unless one person's happiness, supposed equal in degree (with the proper allowance made for kind), is counted for exactly as much as another's. Those conditions being supplied, Bentham's dictum, "everybody to count for one, nobody for more than one, 11 might be written under the principle of utility as an explanatory commentary.
Now though Bentham ridicules the taking of justice as our guide, saying that while happiness is an end intelligible to all, justice is a relatively unintelligible end, yet he tacitly asserts that his principle—"everybody to count for one, nobody for more than one" is just; since, otherwise, he would be obliged to admit that it is unjust, and we may not suppose he would do so. Hence the implication of his doctrine is that justice means an equal apportionment of the benefits, material and immaterial, which men's activities bring. There is no recognition of inequalities in men's shares of happiness, consequent on inequalities of their faculties or characters.
This is the theory which Communism would reduce to practice. From one who knows him, I learn that Princeblames the English socialists because they do-not propose to act out the rule popularly worded as "share and share alike." In a recent periodical, M. de Laveleye summed up the communistic principle as being "that the individual works for the profit of the State, to which he hands over the produce of his labor for equal division among all." In the communistic Utopia described in Mr. Bellamy's Looking Backward, it is held that each "shall make the same effort," and that if by the same efforts, bodily or mental, one produces twice as much as another, he is not to be advantaged by the difference. At the same time the intellectually or physically feeble are to be quite as well off as others: the assertion being that the existing régime is one of "robbing the incapable class of their plain right in leaving them unprovided for."
The principle of inequality is thus denied absolutely. It is assumed to be unjust that superiority of nature shall bring superiority of results, or, at any rate, superiority of material results; and as no distinction appears to be made in respect either of physical qualities or intellectual qualities or moral qualities, the implication is not only that strong and weak shall fare alike, but that foolish and wise, worthy and unworthy, mean and noble, shall do the same. For if, according to this conception of justice, defects of nature, physical or intellectual, ought not to count, neither ought moral defects, since they are one and all primarily inherited.
And here, too, we have a deliberate abolition of that cardinal distinction between the ethics of the family and the ethics of the State emphasized at the outset: an abolition which must eventuate in decay and disappearance of the species or variety in which it takes place.
After contemplation of these divergent conceptions of justice, in which the ideas of inequality and equality almost or quite exclude one another, we are prepared for framing a true conception of justice.
In other fields of thought it has fallen to my lot to show that the right view is obtained by co-ordinating the antagonist wrong views. Thus, the association-theory of intellect is harmonized with the transcendental theory on perceiving that when, to the effects of individual experiences are added the inherited effects of experiences received by all ancestors, the two views become one. So, too, when the molding of feelings into harmony with requirements, generation after generation, is recognized as causing an adapted moral nature, there results a reconciliation of the expediency-theory of morals with the intuitional theory. And here we see that the like occurs with this more special component of ethics now before us.
For if each of these opposite conceptions of justice is accepted as true in part, and then supplemented by the other, there results that conception of justice which arises on contemplating the laws of life as carried on in the social state. The equality concerns the mutually-limited spheres of action which must be maintained if associated men are to co-operate harmoniously. The inequality concerns the results which each may achieve by carrying on his actions within the implied limits. No incongruity exists when the ideas of equality and inequality are applied the one to the bounds and the other to the benefits. Contrariwise, the two may be, and must be, simultaneously asserted.
Other injunctions which ethics has to utter do not here concern us. There are the self-imposed requirements and limitations of private conduct, forming that large division of ethics treated of in Part III; and there are the demands and restraints included under Negative and Positive Beneficence, to be hereafter treated of, which are at once self-imposed and in a measure imposed by public opinion. But here we have to do only with those claims and those limits which have to be maintained as conditions to harmonious co-operation, and which alone are to be enforced by the society in its corporate capacity.
Any considerable acceptance of so definite an idea of justice is not to be expected. It is an idea appropriate to an ultimate state, and can be but partially recognized during transitional states; for the prevailing ideas must, on the average, be congruous with existing institutions and activities.
The two essentially-different types of social organization, militant and industrial, based respectively on status and on contract, have, as we have above seen, feelings and beliefs severally adjusted to them; and the mixed feelings and beliefs appropriate to intermediate types, have continually to change according to the ratio between the one and the other. As I have elsewhere shown, during the thirty—or rather forty—years' peace, and consequent weakening of the militant organization, the idea of justice became clearer: coercive regulations were relaxed and each man left more free to make the best of himself. But, since then, the redevelopment of militancy has caused reversal of these changes; and, along with nominal increases of freedom, actual diminutions of freedom have resulted from multiplied regulations and exactions. The spirit of regimentation proper to the militant type has been spreading throughout the administration of civil life. An army of workers with appointed tasks and apportioned shares of products, which socialism, knowingly or unknowingly, aims at, shows in civil life the same characters as an army of soldiers with prescribed duties and fixed rations shows in military life; and every further act of Parliament which takes from the individual money for public purposes and gives him public benefits, tends more and more to assimilate the two. Germany best shows this kinship. There, where militancy is most pronounced, and where the regulation of citizens is most elaborate, socialism is most highly developed; and from the head of the German military system has now come the proposal of regimental regulations for the working classes throughout Europe.
Sympathy which, a generation ago, was taking the shape of justice, is relapsing into the shape of generosity; and the generosity is exercised by inflicting injustice. Daily legislation betrays little anxiety that each shall have that which belongs to him, but great anxiety that he shall have that which belongs to somebody else For While no energy is expended in so reforming our judicial administration that every one may obtain and enjoy all he has earned, great energy is shown in providing for him and others benefits which they have not earned. Along with that miserable laissez-faire which calmly looks on while men ruin themselves in trying to enforce by law their equitable claims, there goes activity in supplying them, at other men's cost, with gratis novel reading!
Evidently, then, amid this chaos of opinions the true idea of justice can be but very partially recognized. The workman who, in pursuance of it, insists on his right of making his own contract with an employer, will continue to be called "a black-leg"; and the writer who opposes the practice of forcibly taking A's property for B's benefit will be classed as an "a priori bigot"—Nineteenth Century.