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SOCIAL JUSTICE

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SOCIAL JUSTICE

A CRITICAL ESSAY

BY

WESTEL WOODBURY WILLOUGHBY, Ph.D.

ASSOCIATE PROFESSOR OF POLITICAL SCIENCE IN THR

JOHNS HOPKINS UNIVERSITY

AUTHOR OF " THR NATURE OF THR STATE," " RIQHTS AND

DUTIES OF AMERICAN CITIZENSHIP," ETC.

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THE MACMILLAN COMPANY

LONDON: MACMILLAN & CO., Ltd.
1900

Att rights reserved

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PREFACE

The present work lies within a sphere of inquiry
to which ethics may perhaps lay the best claim, but
to which economics and politics have nevertheless
a valid right. While the facts dealt with by the
several social sciences are largely the same, they are
examined from different points of view. The special
task which falls to the ethicist is the determination
of the absolute value of social institutions, and the
statement in as definite a form as possible of the
principles which should govern men in their efforts
to adjust their lives to the highest ideals of right
and justice. In a certain sense, each social science
has thus its own ethic. Each of these separate
ethics must, however, rest upon general principles
of right, which have first to be determined in the
abstract. It is the aim of this volume to ascertain,
if possible, these general principles.

The value of this inquiry is dwelt upon more fully
in the opening chapter, but it will not be amiss to
point out here that it is only as armed with the
results which an investigation of this sort affords,
that one becomes qualified to pass judgment upon
the justness of the demands so powerfully put forth

vii

viii PREFACE

in our day by those large bodies of thinking men
and women who, grouped under banners anarchistic,
socialistic, or communistic, are demanding a radical
readjustment of social and industrial conditions.

No pretence is made that a new system of ethics
has been developed. In the main the standpoint
taken is that of T. H. Green and the later writers
of his school. The only merit claimed, therefore, in
this respect, for the present work, is that in it there
has been made a more comprehensive application
than has perhaps been before attempted of tran-
scendental principles to the concrete problems of
social life.

It is hoped, however, that this work will possess
value not only as a study in ethical speculation, but
as a contribution to the history of social and political
philosophy. In the case of each point considered
the treatment has taken the form of an examination
and criticism of the chief theories which have been
formulated in the past. In stating these* theories, it
has been deemed the only satisfactory way to repro-
duce the exact language of their authors, even
though this has necessitated frequent and, at times,
extended quotation.

For inspiration as well as direct assistance, the
author has drawn from so many sources that it is
difficult to give due acknowledgment except so far
as it can be done in footnote references. In many
cases, however, the assistance derived, though none

PREFACE ix

the less real, has been of such a general character as
to render specific citation impossible. I wish, how-
ever, to express the especial help I have obtained
from my colleague, Professor Sidney Sherwood. I
have had the opportunity of discussing with him a
number of the points considered, and besides reading
a part of the book in manuscript, he has read the
whole of it in proof.

A portion of Chapter VIII, under the title " The
Right of the State to Be," has appeared as an article
in the International Journal of Ethics; and all of
Chapter IX has been published in the American
Journal of Sociology. I am indebted to the editors
of these magazines for their courtesy in permitting
me to use this material again in this work.

Finally, it should be said that these chapters were
originally delivered in lecture form at the Johns
Hopkins University. This will account for, and it
is hoped excuse, a certain amount of reiteration and*
didacticism ^hich will doubtless appear as the book
is read.

W. W. W.

CONTENTS

PAOl
PREFACE Vii

PART I

CHAPTER I

J Introductory: Nature and Value of the Proposed In-
quiry 1

CHAPTER H
-^ Justice

13

CHAPTER HI
Equality 29

CHAPTER IV
Property 78

CHAPTER V
Canons of Distributive Justice — The Labor Theory . 107

CHAPTER VI
The Labor Theory as applied to Property in Land . 156

CHAPTER Vn

Other Canons of Distributive Justioe . 194

xi

Xll CONTENT8

PABT n
CHAPTER Vm

TAQM

The Right of Coercion 216

CHAPTER IX
The Ethics of the Competitive Process • . . 269

CHAPTER X
Punitive Justice 816

Index 881

SOCIAL JUSTICE

SOCIAL JUSTICE

PAKT I

CHAPTER I

introductory: nature and value of the
proposed inquiry

Ideals of right constitute the essentially active
principles in our social and political life. Dating
from the Revival of Learning, or, still more directly,
from the Protestant Reformation, the sovereignty of
the individual reason has been increasingly recog-
nized. At first, the criticism which sprang from
independent thought was directed almost wholly
against the Church, which had claimed for itself
the power to promulgate theological dogmas and
moral rules, the correctness of which the individual
was not allowed to question. As the doctrine of the
right of individual judgment spread, however, polit-
ical powers were brought within range of criticism.
The authority of the State, as well as of the Church,
the binding force of law and custom, as well as of
theological rule, was inquired into. Not only were
civil laws examined with respect to their validity,
but the tenure and extent of the authority of the
lawgivers brought before the bar of reason. Thus,
in the sixteenth, seventeenth, and eighteenth cen-

2 SOCIAL JUSTICE

turies, the doctrine became general that political
rulers, if they would have the obedience of their
subjects, should hold themselves bound to observe
certain moral principles, and to administer their high
offices as public trusts. Incorrectly interpreted, this
thought led to the French Revolution. Correctly
interpreted, it gave rise to representative and con-
stitutional government.

Within the present century the circle of current
conceptions of right has broadened, until the whole
sphere of industrial and social life has been included.
In the nature of things this extension was bound to
come, and could only be kept back temporarily by
popular apathy and ignorance. As had been the
case in the field of politics, the demand for social
reform has taken, in many instances, the form of
Utopias based upon the crudest reasoning. Within
more recent years, however, industrial demands have
assumed more coherent form, and have been sup-
ported by closer reasoning.

With that condemnation of conditions of life
which proceeds from the adherents of certain meta-
physical schools we need not be much concerned.
The philosophical pessimist sees, to be sure, in his
survey of the conditions of humanity, an excess of
evil over good, and of pain over pleasure, but such
criticism is not directed at special conditions. The
same doleful result rewards his retrospect of the past,
and a similar shade clouds his horoscope for the
future. This lamentable condition of affairs he con-
ceives to be due, not to any special features of our

INTRODUCTORY 3

social life that may be altered, but to man's inherent
nature, and his necessary relations to cosmic con-
ditions generally. Fortunately, however, such meta-
physical moultings do not constitute a characteristic
of present philosophical thought, and, because of
their abstract and esoteric character, are not gen-
erally influential in the world of practical thought
and action. We shall, therefore, in the present work,
confine our attention to those condemnations of our
social regime that are based upon criticisms of fact,
and which, therefore, lead to demands for general
reform.

These criticisms we find assuming a variety of
forms. On the one hand, it is charged that even
that degree of restraint which existing social con-
ditions impose is harmful, and should be lessened.
This is the position of pure individualists and anar-
chists. On the other hand, it is claimed by a much
larger school that restraints still greater than those
which now exist should be placed upon human com-
petition. This is the opinion of collectivists, nation-
alists, and socialists, and, in fact, of all those who
advocate an extension of social control. The com-
mon predicate, however, of both schools, is that the
distribution of pleasures and privations which is
brought about by present conditions is essentially
uneconomical as well as unjust: uneconomical, be-
cause leading to waste and misdirected effort ; unjust,
because apportioning rewards and penalties with but
little reference to those canons of desert which a true
ideal of distributive justice would prescribe.

4 SOCIAL JUSTICE

It needs no argument to show that the mainten-
ance of the ethical claim is essential to the cause
advocated. If this feature be substantiated, there is
at once established an almost convincing reason for
acceptance of the system based upon it. Until, how-
ever, it has been clearly shown that the principle of
distributive justice which lies at the basis of a pro-
posed scheme is sound, the argument in behalf of
its productive efficiency is not entitled to a hearing.
In truth, but few will dispute that a reform which
will lead to greater distributive justice is justified,
even should productive efficiency be somewhat les-
sened. Conversely, any scheme of social or indus-
trial organization which is ethically defective upon its
distributive side must stand condemned, whatever
its excellence upon its productive side.

To the recent English translation of a work of
Menger which is devoted to a history and criticism
of the socialistic claim of the right of the individual
to the whole produce of his labor, Professor Foxwell
has prepared an introduction, in the course of which
is clearly stated the importance of inquiries of the
character of those with which we are to be con-
cerned. 1 The argument is there directed especially
to a demonstration of the utility of an examination
into the validity of a single principle of economic jus-
tice, but so exactly do the words represent, and so
brilliantly do they express, the motives which have

1 Don Recht auf vollen Arbeitsertrag in geschicktlicher Darstellung,
translated by M. £. Tanner under the title " The Sight to the Whole
Produce of Labor."

IOTBODUCTOBY 5

led lis to undertake the present work, that we cannot
refrain from quoting them at considerable length.

After referring to the fact that English economists
have failed to give sufficient attention to the legal
conditions which underlie economic facts, Professor
Foxwell goes on to declare that even the correction
of this error will not be enough. "We must go
beyond the study of positive law," he says, " to the
study of the conception of ideal right on which it is
based. It has been said that the science of one age
is the common sense of the next. It might with
equal truth be said that the equity of one age becomes
the law of the next. If positive law is the basis of
order, ideal right is the active factor in progress. To
use the Comtian phrase, there is a dynamical as
well as a statical jurisprudence, and both are vitally
important to the economist. The whole aim and
object of economic policy and legislation, the trend
of all movements for social reform, revolutionary or
progressive, must depend upon the prevailing sense
of ideal right, upon the notions of justness and fair-
ness, more or less coherent, which recommend them-
selves to the governing body of opinion at any time
as axiomatic and unquestionable. Vague and intan-
gible, perverse or impracticable, as they may seem,
these notions of right are none the less real and
resistless in their sway. They are themselves, no
doubt, not unaffected by positive law, as Maine and
others have shown. But in progressive societies they
are a living, and in the long run a dominant, force.
Their growth is slow and secular; revolutions and

6 SOCIAL JUSTICE

counter-revolutions may run their course, while they
remain but slightly changed : but, as they generally
develop, they fuse and transform the whole structure
of positive law, and alter the face of civil society. . . .
That there are such underlying ideas of right, and
that the whole tenor of legislation is silently, uncon-
sciously, moulded by the accepted views as to what is
economically and constitutionally fair and just, will
not be disputed. Crystallized into catching phrases,
we meet with those current ideals of equity at every
turn. . . . One man, one vote ; a living image ; a
fair day's wage for a fair day's work; equality of
opportunity ; h chacun selon ses ceuvres ; property is
a trust ; a man may do as he likes with his own ;
caveat emptor; laissez faire, — these and many others
will be familiar to us as effective instruments of eco-
nomic and political movement. If they are modified,
the legislation of all free countries will reflect the
change ; until they are modified, no forcible revolu-
tion will have more than a superficial and transient
effect." And a little farther on Professor Foxwell
makes the emphatic, but fundamentally true, state-
ment, that, " It is hardly too much to say that in
the gradual development of these ideals of right, and
the relation between their development and the devel-
opment of positive institutions, we have the key to
social stability. That form of society is most surely
rooted in which these movements are fairly concur-
rent, in whose legal structure and economic relations
the prevailing notions of equity or axioms of justice
are most faithfully mirrored; and where they are

INTBODUCTOBY 7

carried out in similar degree in all the various sides
of social life."

Important as is, at any time, the study of these
underlying ethical principles, especially urgent is the
need for their examination in these present days of
social and political unrest. Together with the ex-
tension of. the political franchise there has been
secured within recent years an equal or greater dif-
fusion among the people of intellectual enlighten-
ment and freedom. Ultimate political power has
thus been diffused at the same time that tradition
and dogmatic religion have lost their former con-
trolling force. Individual reason has been recog-
nized as the true judge of right and wrong, with the
result that the peoples of all civilized countries are
subjecting social and economic conditions to the same
tests of reasonableness and justice as those by which
they have questioned in the past the rightfulness of
political institutions. This criticism has revealed
discrepancies in many places between the ethical
ideals currently held, and the social and economic
conditions actually existing. "In these respects/'
says Professor Foxwell, "our own time does not com-
pare favorably with the Middle Age. Not only is
our age one of exceptionally rapid change, but our
ideals are changing even more rapidly than our
institutions, so that we live in an atmosphere of
social ferment and revolutionary proposals. What
makes the situation still more critical, and forms to
my mind the peculiar danger of modern societies,
is the startling contrast between their political and

8 SOCIAL JUSTICE

economic development. In politics, equality; in eco-
nomics, subordination. One man, one vote ; why not
also one man, one wage ? This contrast, which must
be brought home to the dullest at election time, is full
of social unsettlement, and is quite sufficient to account
for the unrest characteristic of our day. How different
was the inner harmony of the system of the Middle
Age, where the economic order found its parallel in
the political order, and was even reflected in the
spiritual order, and projected in the conception of
another world. The mediaeval conditions resulted in
a long period of organic and stable society; the
modern mark an age of transition, perhaps of revo-
lution."

This mediaeval harmony has so strongly appealed
to some minds that a return to it has been declared
by them desirable and even practical. In the systems
of such thinkers as de Maistre, of Comte, and of Car-
lyle, ecclesiastical and feudal hierarchies play a prom-
inent part. That such a return would be undesirable
we need not argue ; but whether desirable or not, time
may be taken to point out that the strivings of the
present age nowhere point to a desire for the reestab-
lishment of past conditions. The whole modern spirit,
whether voiced by the discontented or the contented,
is fundamentally opposed to the mediaeval idea, — op-
posed spiritually, intellectually, politically, and eco-
nomically. Spiritually, the mediaeval idea was one of
separation of Church and State, of contrast between
matters ecclesiastical and secular, of antagonism
between flesh and spirit. The Christian religion as

INTRODUCTORY 9

taught was generally non-social in spirit, and often ^ j^^

openly anti-social. To all this the modern spirit is ] *

antithetical. According to it the good life is to be
led, not by an ascetic withdrawal from social con-
ditions and obligations, nor by walking with the eyes
ever directed to the world to come, but by entering
to the fullest possible degree into this life, here and
now, and by utilizing the social and political forces
by which one is surrounded for the concrete realiza-
tion of the highest ideal which the individual reason
is able to suggest. Intellectually and politically the
mediaeval and the modern minds are poles apart. In
the one, the dominant principle was authority; in
the other, it is freedom. At first thought, individual
freedom seems to involve moral and political anarchy.
This is what de Maistre and Comte thought, and they
believed that the French Revolution had demon-
strated it. It is for this reason that they would
have restored that division between spiritual and
temporal authorities which existed in the Middle
Ages. But the idea of freedom which the Protestant
movement introduced has within it, when properly
interpreted, the principle of order as well as the
element of destruction. 1 Economically, aside from
the greater diversity and complexity of present con-
ditions, the great distinction between modern and
mediaeval industrial life consists, of course, in the
difference between production on the large and on
the small scale; between the factory system and the

*For a fuller treatment of this subject, see Chapter VU 9 « The
Bight of Coercion."

10 SOCIAL JUSTICE

domestic workshop. The impossibility of a reversion
to the older regime in these respects is manifest.

No, the demand of the discontented of the present
age is not for a return of the conditions of any
former time. The feeling rather is that, taking
conditions as they are, the distribution of rewards,
economic or other, which actually obtains should be
modified so as to accord more nearly with current
conceptions of fairness and right. As long as this
feeling prevails, the stability of our social and eco-
nomic order cannot be guaranteed. Reforms that
ameliorate the conditions of the more unfortunate
classes may prevent acute trouble, but, until the peo-
ple generally are able to see at least a substantial
realization of the principles which they believe to be
just, there cannot be obtained that harmony between
popular thought and objective institutions upon which
a permanent social order must rest. It is to be em-
phasized, moreover, that this harmony can only be
obtained by satisfying current conceptions of right,
in so far as they are essentially valid. It well
behooves the social reformer, therefore, to consider
carefully which of the popularly alleged canons of
distributive justice have in them the elements of
truth and rationality. In so far as they are found
valid, the way will be pointed out for reforms that
will be permanently effective. In so far as they are
found invalid, not only will warning be given to
those who might be tempted to ill-advised innovations,
but the directions indicated along which the economic
and ethical education of the people must proceed.

INTRODUCTORY 11

The general character of the inquiry which we
are to undertake has been suggested in the preced-
ing paragraphs. Its form and scope may be more
particularly indicated as follows : —

The second chapter will be devoted to an analysis
of the idea of Justice as an- abstract conception.
This principle determined, we shall, in the subse-
quent chapters, apply it to the concrete problems of
our social life. There is, or should be, an ethical
justification for every social fact, but to attempt
specific justifications will be obviously impossible.
It will be possible, however, to examine those fea-
tures of our industrial and political life which are
distinguished, either by their paramount importance,
or by the ethical controversies that have been waged
around them. In so doing we shall, moreover, be
rendering more explicit the principles in accordance
with which all other and less important social facts
are to be judged.

In mapping out this work, it becomes evident that
the problem of social justice may be grouped under
two general heads : the proper distribution of eco-
nomic goods ; and the harmonizing of the principles
of liberty and law, of freedom and coercion.

Examining first the subject of distributive justice,
we shall consider the extent to which the principle
of Equality should play a part. Next we shall
undertake the definition of the concept " Property,"
which will involve a critical examination of the
various theories that have been brought forward to
justify its existence. This done, we shall be ready

^

12 SOCIAL JUSTICE

to consider the general canons of desert that should
govern distribution of rewards. The chief theory
considered under this head will be that which bases
the right to private ownership wholly upon labor
performed. As a subdivision to this inquiry, but,
because of its importance, demanding treatment in a
special chapter, will be the right to private property
in land. The other and less important canons of
distributive justice will be treated in still another
chapter.

The second of the chief problems of which we
have spoken above, the harmonizing of freedom
and coercion, will be treated under the three heads,
"The Right of Coercion," "The Ethics of the Com-
petitive Process," and " Punitive Justice."

CHAPTER n

JUSTICE

There is one problem which, by its importance^
dwarfs all other subjects of human inquiry; one
principle which, if discovered and reduced to definite
statement, will furnish the key to unlock the doors
which have hitherto barred the way to the solution
of the greatest questions that have agitated the
minds of men in their efforts to adjust their social
conduct to the highest standards of right. This
problem is the determination of the true canon or
canons of distributive justice.

As soon as the sense of moral obligation is felt,
the idea of desert necessarily makes its appearance,
and with the emergence of this idea comes the need
for standards in accordance with which individual
merit may be measured. In the earliest stages of
religious development this need was not strongly
felt. Still, the need was there, and to some extent
consciously recognized. As regards the relations of
men and the gods the authority expressed by the lat-
ter, though often viewed as arbitrary in the extreme,
was yet held to be determined in the main by the
merit of those ruled. As regards the relations
between man and man, the arbitrary element, at
least from the modern standpoint, seems to have

is

14 SOCIAL JUSTICE

entered. Existing institutions and conditions, politi-
cal as well as economic, if not given in these earlier
times an explicit sacrosanct character, were at least
seldom subjected to critical examination as to their
social value. Tradition, the commands of the
priesthood, or the orders of the ruling political
classes were accepted as necessarily obligatory ; and,
though there may have been occasional bewailings
of lot, little attempt was made to ascribe economic
or political hardships to the operation of wrong prin-
ciples of distributive justice.

As intellectual development advanced, however,
men began to reflect more seriously regarding them-
selves, and the nature of the world in which they lived
and the forces by which they were surrounded. At
first this inquiry went little farther than an attempt
to explain the purely phenomenal world, and resulted
only in the formulation of crude and fantastic cos-
mologies. Thus philosophy, in its metaphysical
sense, took its rise. Next, however, extending their
inquiry to themselves as living, thinking beings, men
attempted to seek out, in a speculative way, the
meaning of life, and to analyze their relations toward
one another and the cosmos. Examining actual
social and political conditions, a quo warranto was
demanded of them. jThus ethical philosophy began. \
This stage of thought was reached in Greece in the
Sophistic period. By the Sophists, the so-called
teachers of wisdom, all currently accepted rules of
morality were fearlessly examined, and declared
founded upon no general principles of right. In-

JUSTICE 15

dividual interest and individual caprice, it was
asserted, furnished the sole foundations for existing
moral and legal conventions. Guided by such teach-
ings, the social and political bonds of Greece seemed
upon the point of dissolving. In this desperate con-
dition of affairs Socrates came forward with his keen
dialectics to teach the doctrine that beneath all laws
and customs, despite their variety and apparent con-
trariety, general rules of morality are to be found of
so abstract and refined a character as to be capable
of universal application, and of such essential ration-
ality as to be intrinsically obligatory upon men as
intelligent beings. His doctrine, in other words,
was that, though there would appear to be inconsist-
encies in the rules governing the same subjects at
different times or at different places, beneath these
inconsistences there may be discovered common
moral elements, which give to the rules their ethical
validity in so far as they have validity at all. Thus
was made the first deliberate attempt to seek out the
pure principles of practical morality. It is true that
Socrates' own work went little beyond showing the
inconsistences of current Sophistic assertions, yet the
doctrine which we have mentioned was there, and
the positive side of the work which Socrates had
begun was immediately taken up by his great pupil
Plato, and continued in turn by the still greater
Aristotle. From Aristotle's time to the present day
speculative spirits, one after another, have continued
this search for the canons of right and justice.

The existence of eternal, immutable canons of con-

16 SOCIAL JUSTICE

duct being granted, philosophers and ethicists have
confidently attacked the problem of definitely deter-
mining, by pure reasoning, the prescriptions which
they give. To these prescriptions has generally been
given the name " natural laws." By their essential
rationality these laws have been held to be binding
at all times, in all places, and upon all men. As
such they have of course been considered as control-
ling political rulers, and, conversely, as securing to
the individual rights for the violation of which no
justification may be offered.

During the long centuries of the Dark Ages little
was added to the contributions which the Greeks had
made to the world's stock of philosophic knowledge.
Indeed, much that had been discovered disappeared
from the learning of Europe. Fragments only of
the writings of Aristotle and Plato were known, and
these for the most part in corrupt translations. All
philosophy became dominated by the theological
spirit, and thus the Natural Law, which to the
Greeks had been interpreted as the commands of
Great Nature — Natura Naturans — became, at the
hands of the churchmen, the Laws of God. During
the scholastic period, however, though nothing was
added in substance, much was gained in definiteness.
The various conceptions involved in the moral philos-
ophies of the heathen and Church writers were sub-
jected to that keen analysis which the schoolman's
sharpened dialectical skill rendered possible. This
analysis culminated in the system of Thomas
Aquinas, in which the lex ceterna, lex humana, lex

JUSTICE 17

divinay and lex naturalis were sharply and logically
distinguished.

From the time of Aquinas to that of Kant is a
long step, five hundred years, in fact, yet during all
that time there was no change in the currently re-
ceived doctrines of natural right which, for our
present purposes, need be considered. During the
seventeenth and eighteenth centuries, however, the
idea of which we have spoken above, that it lies
within the power of men definitely to determine and
state each of the special duties which the ethical
law commands, became more pronounced. It was
declared with increasing emphasis that, starting with
a few axiomatic principles, it is possible to determine,
more geometrico, all of the special obligations under
which men, as moral beings, rest. This, for instance,
was the view maintained by Locke, Spinoza, and
Wolff. Thus Locke, starting with "the idea of a
Supreme Being infinite in power, goodness, and wis-
dom, whose workmanship we are, and on whom we
depend ; and the idea of ourselves as understanding,
rational beings," declares that "from [these] self-
evident propositions by necessary consequences as
incontestable as those in mathematics, the measures
of right and wrong might be made out to any one
that will apply himself with the same indifference
and attention to the one as he does to the other
of these sciences." 1 Spinoza went so far as to cast
his ethics in the geometrical form of propositions,
demonstrations, and corollaries.

1 Cf. Schurman, Ethical Impart af Darwinism, Chapter L
o

18 SOCIAL JUSTICE

It was as much these absurd pretensions as it was
the sceptical results of Hume's reasoning, that awoke
the philosopher of Konigsberg from his "dogmatic
slumber." Negatively the result of Kant's work was
to show the utter lack in the ethical systems of his
time of a metaphysic or epistemology adequate for
the support of the premises upon which they were
founded. Positively, the result was to transfer to
the individual human reason the legislative source
of moral law. The significance of Kant's doctrine
in this respect has been brilliantly stated by Sal-
mond. 1 "In the system of Kant," says Mr. Sal-
mond, " the law of nature, or, as he prefers to call
it, the moral law, appears as the categorical impera-
tive of the practical reason. It is not difficult to
recognize under this new disguise the conception
already familiar to us. Law, for Kant, as for every
one else, is a comm and ; but he expresses this in his
own way by saying that it is a ' proposition which
contains a categorical imperative/ That the law
of nature is a command or dictate of reason was
already familiar doctrine in the time of Cicero;
Aquinas and the schoolmen taught it, and from their
day to that of Kant himself, it has not been rejected
or forgotten. . . . The element of originality in
Kant's system is his unreserved acceptance of what
is called the metaphysical doctrine of natural law.
When Aquinas says that this law is the dictate of
practical reason, he means primarily the reason of

1 In an article entitled "The Law of Nature," contributed to the
Law Quarterly Review for April, 1885.

JUSTICE 19

God, not of man — ratio videlicet gubenrnativa totius
universi in mente divina existens. Human reason is
not per se possessed of legislative authority, but is
merely the secondary source of the law of nature, as
being the means by which law is revealed to man.
Kant, however, proclaims a new doctrine of the
autonomy of the reason or rational will of man.
The human practical reason is a lawgiving faculty,
and its commands constitute the moral law. 'This
law/ he says, ' ... is a single isolated fact of the
practical reason announcing itself as originally legis-
lative/ Sic volo sic jubeo. Season is spontaneously
practical and giyes that universal law which is called
the moral law. From this moral or natural law
proceeds moral or natural obligation, as most of his
predecessors taught. ' Obligation is the necessity of
free action when viewed in a relation to a categorical
imperative of reason. 9 "

It must not be gathered, however, from the above
that Kant taught a doctrine according to which it
lies within the power of each individual to create
arbitrary distinctions between right and wrong. His
theory is that what our reason tells us is right be-
comes, ipso facto, categorically imperative upon us.
But in reaching its judgments our reason is, by its
very nature, governed by the principle that only that
can be right which accords with a principle which
we can wish to be a universal one. "Act on a
maxim," he declares, " which thou canst will to be
a universal law."

The effect of Kant's writings was to inaugurate an

20 SOCIAL JU8TICE

epoch in ethical speculation. As modified and elab-
orated by the later transcendentalists, the result has
been to give to the conception of natural rights a
changed and more nearly perfect signification. All
ethical obligation being posited upon that feeling of
jmghtness which is given to the individual as an orig-
inal datum of consciousness when the rightness of a
given line of conduct is recognized, and all rules of
moral obligation being thus considered as having their
source in the legislative power of the human mind
to set to itself principles of conduct, the idea of
natural right necessarily becomes synonymous with
those claims which the individual, as a rational moral
being, may claim from others as rational moral beings.
As thus conceived, the only rights which may be
claimed as natural, in the sense of being innate or
essential, are those which are necessary for the reali-
zation of one's highest ethical self. Thus, as Green
says, " they [rights] are ' innate ' or ' natural ' in the
same sense in which according to Aristotle the state
is natural; not in the sense that they actually exist
when a man is born, and that they have actually
existed as long as the human race, but that they
arise out of, and are necessary for the fulfilment of,
a moral capacity without which a man would not be
a man." l
f Justice to the individual, then, must, according
1 to these principles, consist in the rendering to him,
so far as possible, all those services, and surrounding
him by all those conditions, which he requires for

1 Philosophical Works, Vol. II, p. 858.

JUSTICE 21

his highest self, for the satisfaction of those desires
which his truest judgment tells him are good. Con-
versely, opportunity for the fulfilment of highest |
aims is all that may be justly claimed as a right.

The realization of one's ethical self is the gen-
eral categorical imperative addressed to every one.
Therefore, the putting forward of a claim implies
at the same time the recognition of a duty by the
individual making the claim. In the legal world
the existence of a right in an individual is said to
imply the corresponding duty in others to respect
that right. In the moral world, however, not only
is there this obligation, but there is incumbent upon
the subject of the right the duty of employing it,
when obtained, for the attainment of the end for
which alone it is granted to exist. 1 Further still, the
setting up by an individual of a claim for a given
privilege or immunity logically implies the assertion
by such individual that he has both the disposition
and the ability properly to use it when obtained.

But what does the above mean ? It means, in the
first place, that the " rights " which different indi-
viduals may claim are not necessarily the same. It
means, in the second place, that there are no absolute
rights, no definite natural rights, such as those that
so many political and ethical philosophers have

1 Also, as Mackenzie points out (International Journal of Ethics,
VoL IV, p. 425), " there could not be any . . . legal right if there
were not a presupposition that, on the average, the individual will use
it well" Thus, for instance, the right of freely expressing one's opin-
ions can be tolerated only when men have reached a certain level of
reasonableness in the formation of their views.

22 SOCIAL JUSTICE

attempted to declare. The rights which different
individuals may properly claim must vary according
to their ethical dispositions and capacities. Thus
the man who, by his striving, has built up for him-
self an upright character, has the right to demand
from his fellow-men a respect to which his less hon-
est neighbor can make no proper claim. Thus, also,
that man who, by his wisdom and probity, is best qual-
ified to direct a certain social force has ethically the
best right to be intrusted with its control. In this
sense there is a " divine right" of rulership.

There can be no absolute rights, furthermore, for
the reason that whether or not a given right should
be granted must depend upon all the concomitant
circumstances which determine whether or not the
special aim sought to be realized by the employment
bf the right claimed is the most desirable end which,
under the given conditions, should be sought. Finally,
even were the foregoing not true, it would be logically
impossible to maintain the existence of more than a
single absolute right. To say that any right is abso-
lute means that it is one which, under all conceivable
circumstances, should be granted to all individuals,
quh persons, whatever their capacity for ethical de-
velopment. To select any one right as absolute,
means, 'then, that every other right must always be
subordinated to it. Thus, for example, if the right
to life be selected as absolute, no justification for its
violation can be offered, whether for the sake of the
protection of one's own self from grievous bodily
injury, or for the warding off of similar injury to

justice 28

one's own family. No injury to one's honor, or the
honor of one's own family, will justify its violation.
According to such a premise, life could never justly
be taken or exposed to serious danger in war,
however righteous the cause for which waged.
In fact, no threatened evil to thousands or millions
of other men, short possibly of what would entail
death, would justify the taking of a single life. To
state such logical consequences as these is a sufficient
answer to those who would maintain the possibility
of an absolute right, even did not the reasoning
which has gone before show its impossibility.

So important is this point of the relativity of all
rights that, though it be a repetition, a quotation
from Green's Prolegomena to Ethics is justified.
" We need not shrink," says Green, " from asserting
as the basis of morality an unconditional duty,
which yet is not a duty to do anything uncondi-
tionally except to fulfil that unconditional duty. . . .
This is the unconditional ground of those particular
duties to do or to forbear doing, which, in the effort
of the social man to realize his ideal, have so far
come to be recognized as binding, but which are in
some way or other conditional, because relative to
particular circumstances, however wide the range of
circumstances may be, to which they are relative. . . .
Every one ... of the duties which the law of the
State or the law of opinion recognizes must in
some way be relative to circumstances. . . . Yet
there is a true sense in which the whole system of
such duties is unconditionally binding. It is so as

24 SOCIAL JUSTICE

an absolute imperative to seek the absolutely desir-
able, the ideal of humanity, the fulfilment of man's
vocation. ... It enjoins the observance of the
whole complex of established duties, as a means to
that perfection of which it unconditionally enjoins
the pursuit. And it enjoins this observance as un-
conditionally as it enjoins the pursuit of the end to
which this observance is a means, so long as it is such
a means. It will only allow such a departure from
it in the interest of a fuller attainment of the uncon-
ditional end, not in the interest of any one's pleasure." *
Let us stop now to sum up the results thus far
reached regarding the nature of justice. Negatively,
| we have determined that there are no such things as
] definite, absolute rights. Positively, we have learned
f that justice consists in granting, so far as possible,
to each individual the opportunity for a realization of
his highest ethical self, and that this involves, or
rather is founded upon, the general duty of all, in
the pursuit of their own ends, to recognize others as
individuals who are striving for, and have a right
to strive for, the realization of their own ends. In
other words, there is the general ethical mandate to
be a person, and to respect others as persons; to
treat others as ends, never as mere means to one's
own end.

These conclusions to which we have been led have
been reached deductively. In the chapters which
are to follow, we shall examine the chief of those
attempts which have been made to declare rules of

i §f 107, 196.

JUSTICE 26

justice of the absolute character that we have de-
clared to be impossible. If , as a result of such ex-
amination, we should discover that no one of them
can be successfully defended as absolutely valid, i.e.
as valid under all conceivable circumstances and
conditions, then truly we shall feel that there has
been afforded substantial support for the position
which we have already assumed upon this point.
For if, after the expenditure of all the intellectual
effort that has been made in the past by the wisest
men of their times to ascertain such rules, jio laws
of justice hayeJieeiLdiscovered which maybe univer-
sally and rigidly applied without lead ing to und&»
sirable and unj ust results, certainly a presumptive
prooJTToffered that no such laws can be framed.
And this will give us a confidence in assuming that
our general reasoning has not been vitiated by any
important error.

Is this, however, we are forced to ask, the most
definite formulation of which the idea of justice is
susceptible? By the side of those ethical systems
which have claimed to lay down for our guidance
concrete rules of conduct, or at least definite criteria
of the goodness or badness of different modes of con-
duct, it does certainly seem unsatisfactory to be in-
formed that no definite rules of absolute validity can
be laid down ; that only the general advice can be
given to seek the nearest possible realization of the
highest possible personal perfection. Our personal
and social necessities compel us to ask, Can we not
rationally deduce some guiding principles of conduct,

26 SOCIAL JUSTICE

some definite maxims which will enable us to test
the justice of social institutions and forces, and
which will afford us at least the clews for determin-
ing the privileges and immunities which an indi-
vidual may justly claim from society? If our
inquiries are necessarily to end in a general non
possumus, what, we are tempted to ask, is the value
of an attempt to seek practical guidance in the
ethical field? It is the positive results we most
desire, and to what positive results can such an
inquiry lead?

The positive results will be these. In the first
place, in demonstrating the impossibility of framing
absolute rules of justice, the necessity will be em-
phasized of bringing each of our acts to the bar of
reason, and of determining in each case, not simply
its formal accordance or non-accordance with some
previously accepted rule of conduct, but whether,
as a matter of fact, both the ethical motive which
prompts its performance is a proper one, and its
ultimate as well as proximate results will be such as
will tend to advance the realization of the highest
good which our reason has been able to suggest.
With no thumb rules to guide us, we will be thus
taught that what is right and what is wrong for us
as members of a society can be determined only after
we have ascertained all the circumstances which
have led to a given state of affairs, as well as the
conditions by which a given line of conduct is to be
influenced in the future. This will mean that at least
a certain amount of study of actual social conditions

JUSTICE 27

is imperative upon every one, and especially upon
those who would seek to teach or guide others. The
study of the social sciences will thus be shown to be,
as it were, a propaedeutic to the science of right
living.

Secondly, the impossibility of formulating absolute
rules of practical morality will not prevent us from
discovering and stating those general considerations
which an intelligent acquaintance with the social
conditions of any one time or place suggests as having
a bearing upon concrete lines of conduct. Ethics as
an art is not bound by the limitations which surround
it as a science or philosophy. As a science or phi-
losophy any body of knowledge, in order to be at all
valuable, must be absolute, certain. As an art, how-
ever, any information is of value. Thus, after a
careful examination of all the qualifying circum-
stances in a given case, we may state for the guid-
ance of others those rules of right which it seems to
us will, upon the whole, produce the greatest aggre-
gate of justice. In this way we shall be able to
justify the existence of a positive law and to advo-
cate its operation under existing conditions because
we think its effects as a whole are for good. At the
same time we may fully recognize that at times the
operation of the law will be unjust, and clearly see
that under other conditions a more nearly perfect
rule might be applied.

Finally, it may be pointed out that, though our
examination leads to a declaration that there cannot
be definitely formulated any absolutely valid rules

28 SOCIAL JUSTICE

of justice, it is of great importance that we
should demonstrate this fact, for by so doing we
deprive dangerous revolutionary and socialistic
schemes of the ethical support that is claimed for
them.

CHAPTER HI

EQUALITY

The idea of desert implies that of impartiality.
Impartiality, it should be noted, is distinct from that
of equality. It requires merely that where favor is
shown, some sound reason should exist for doing so.
As Mill says, " Impartiality as an obligation of jus-
tice may be said to mean being exclusively influenced
by considerations which it is supposed ought to in-
fluence the particular case in hand, and resisting
the solicitation of any motives which prompt to con-
duct different from what these considerations would
dictate." 1 The exclusion of preferences based on
irrelevant considerations does, indeed, often lead to
an equality of treatment, but this is an accidental
result, not a necessary consequence. Therefore, to
repeat, in admitting the idea of impartiality as an
essential element in the idea of justice we are not
committed to any doctrine of equality.

At first thought it might seem that a rigid appli-
cation of this doctrine of impartiality would require
us to stigmatize as unjust all preferences based upon
mere affection, that is, upon feelings of friendliness or
love which are not wholly predicated upon a conscious
estimate of worth in the one for whom the friendli-

1 Utilitarianism, Chapter V.
29

30 SOCIAL JUSTICE

ness or love is felt. It would thus seem that the
mother's greater love for her own than for another's
offspring would, in the greater number of cases,
stand condemned.

This point has been seized upon and argued with
great force by Godwin in his Political Justice. " In
a loose and general way," he says, " I and my neigh-
bor are both of us men ; and of consequence entitled
to equal attention. But in reality it is probable that
one of us is a being of more worth and importance
than the other. A man is of more worth than a
beast because, being possessed of higher faculties, he
is capable of a more refined and genuine happiness.
In the same manner the illustrious Archbishop of Cam-
bray was of more worth than his chambermaid, and
there are few of us that would hesitate to pronounce,
if his palace were in flames, and the life of only one
of them could be preserved, which of the two ought
to be preferred. . . . We are not connected with one
or two percipient beings, but with a society, a nation,
and in some sense with the whole family of mankind*
Of a consequence that life ought to be preferred which
will be most conducive to the general good. . . .
Supposing I had been myself the chambermaid, I
ought to have chosen to die, rather than that Flnelon
should have died. . . . Supposing the chambermaid
had been my wife, my mother, or my benefactor.
This would not alter the truth of the proposition.
The life of F6nelon would still be more valuable than
that of the chambermaid ; and justice, pure, unadul-
terated justice, would still have preferred that which

EQUALITY 81

was most valuable. . . . What magic is there in the
pronoun € my ' to overturn the decisions of everlast-
ing truth ? . . . Every view of the subject brings us
back to the consideration of my neighbor's moral
worth and his importance to the general weal as the
only standard to determine the treatment to which
he is entitled. Gratitude, therefore, a principle
which has so often been the theme of the moralist
and poet, is no part either of justice or virtue.
By gratitude I understand a sentiment which would
lead me to prefer one man to another, from other
considerations than that of his superior usefulness or
worth: that is, which would make something true
to me (for example, this preferableness) which can-
not be true to another man, and is not true in
itself." 1

There is considerable force in the argument just
given, and indeed, when properly interpreted, much
of it may be accepted. The highest good, at least as
men are now constituted, is, as we shall show later
on, a social one. For its attainment the mainten-
ance of social relations is necessary — so necessary, in
fact, that the individual is able to find his best self-
realization only when he seeks his own good in the
good of others and of society at large. We cannot
therefore take objection to the declaration of Godwin
that when the social good seems so to demand, the
objects of one's affections should be sacrificed. But
here is the vital point. When we speak of the social
good, we must conceive of that good in its highest

*Book H, Chapter IL

82 SOCIAL JUSTICE

terms. This means the absolute abandonment of
such criteria as ordinary utilitarianism affords, and
the acceptance of idealistic conceptions in their place.
It means, furthermore, a holding in view of the ulti-
mate, as well as the proximate, results of an act.
When these conditions are observed the acceptance
of Godwin's formal law of justice, so far from render-
ing preference due to affection or friendliness inequi-
table, upon the contrary affords, in the greater number
of cases, the very highest sanction for their exercise.
When, for example, we consider that the integrity of
the family, which is founded upon parental and filial
love, furnishes the surest basis of public order and
morality, that within its circle are aroused and stimu-
lated many of the highest and truest virtues, — when
we consider this, we see at once that, in the broadest
sense of justice, loving preferences based upon kinship
are of such transcendent importance in individual as
well as social culture, that the distributive inequali-
ties to which they may give rise are of little signifi-
cance. Even if justice be conceived as simply a
principle of utility, the same is true, provided it be
admitted, as of course it must be, that a social life is
of value to men. For it is within the family and
friendly circles that are engendered and cultivated
the principles of conduct which render the mainten-
ance of a social life possible.

What has been said as to the preferences arising
from blood relationships applies, mutatis mutandis, to
most of the exhibitions of partiality based upon senti-
ments of friendliness and of race and political affilia-

EQUALITY 88

tions. Adam Smith remarked the fact that men
were more likely to be moved by the sufferings of
their neighbor caused by a corn upon his great toe,
than by the starvation of millions in China. Such
an extreme discrimination is of course irrational, and
therefore an injustice. In the aggregate, however,
it is true that partialities of neighborhood, race, and
nation are of enormous value in cementing the bonds
which unite men and women into cooperating units.
Edmund Burke expresses this idea when he says : " To
be attached to the subdivision, to love the little pla-
toon we belong to in society, is the first principle, the
germ, as it were, of public affections. It is the first
link in the series by which we proceed toward a love
of our country and mankind." l The millennial time
may come when the brotherhood of mankind will
have received such full recognition that ethnic and
political bonds will lose much, if not all, of their
present importance. As yet, however, their existence
would seem to be needed. With the standard of
culture that now generally prevails, abstract love of
humanity, while lofty as an idea and not difficult for
the ordinary mind to grasp, is yet one that can hardly
be relied upon to furnish an effective motive in every-
day life. Love of humanity may easily be associated
with an indifference to men individually.

Professor Mackenzie, in his Introduction to Social

1 Cf. Leslie Stephen, Social Rights and Duties, VoL I, chapter
entitled " Social Equality," from which the above quotation has been
taken, and which has been snggestiye upon a number of the points
considered in this chapter.

84 SOCIAL JUSTICE

Philosophy, has some admirable remarks upon the
point we have been making. He introduces also the
caution, which we should have stated, that the justi-
fication of discriminations founded upon love or friend-
ship does not justify everything that may be done in
their name. " The unity which is founded upon natu-
ral feeling," he says, " must precede that which de-
pends upon acquired sympathies and thoughts. To
begin with the love of humanity would be to begin
with a cold abstraction. The family is like a burning-
glass which concentrates human sympathies on a point.
Within that narrow circle selfishness is gradually
overcome and other interests developed. Each one
is supplied with the opportunity of knowing a few
human beings thoroughly, than which nothing is
more important as a first stage in the transcendence
of the merely individual self. One who knows only
himself inwardly and sees others only by a kind of
outward observation, which in a large circle is an
almost inevitable result, is apt to become for himself
too entirely the centre of his world, if, indeed, he
ever forms a world or cosmos for himself at all. The
family enables a few persons to become, not merely
objects for each other, but parts of a single life ; and
the unity thus effected may then be very readily
extended as sympathies grow. At the same time, it
cannot be denied that the family has the danger of
all exclusive forms of association. The garden wall
hides the horizon. The selfishness of a family may
be not less repellent than that of an individual ; and
the former kind of selfishness is much more insidious

EQUALITY 85

of the two, since the evil spirit is there masquerading
as an angel of light. The cure for these evils, how-
ever, is to be found, not by destroying the family, but
by treating it as a preparation for a more complete
form of union/' 1

Admitting now the rightfulness of such preferences
as are necessary for the maintenance of the social
relationships of which we have been speaking, we turn
to ask to what extent, if any, the idea of equality
should, in other respects, be recognized in our con-
ceptions of distributive justice. Before we can do
this, however, it will be necessary to distinguish the
different applications of which the term "equality" is
susceptible. There are six general senses in which
we may speak of equality ; namely, (1) Spiritual, (2)
Natural, (3) Civil, (4) Political, (5) Social, (6) Eco-
nomic. 9 We shall consider each of these in the
order given.

I. Spiritual Equality. — This form of equality refers
to men viewed as moral beings, as partakers in the
divine reason. Taken in this sense there can be no
hesitation in accepting the abstract equality of all
men as a statement of fact. By " abstract equality "
we mean that, viewed simply as ethical potentialities,
all men are equal before Him who holds them in the
hollow of His hand. As actual individuals, however,
and as standing before God as their judge, men and
women must be considered as entitled to recognition

1 Op. «t, pp. 863-864.

•This is the classification made by Mr. James Bryce in an article
entitled " Equality " in the Century Magazine for July, 1888.

86 SOCIAL JUSTICE

according to their ethical deserts. Spiritual equality
thus has reference simply to human beings viewed
as beings with moral possibilities. When the ques-
tion of moral desert is raised, the only obligation that
would seem to be imposed is impartiality.

This idea of the spiritual equality of all men was
practically unknown to antiquity. This appeared
explicitly where a caste system upon a religious basis
prevailed. Sir Henry Maine tells us that he has
himself heard a high caste Indian declare that it is
the teaching of religion that a Brahmin is entitled to
twenty times as much happiness as any one else,
and this not upon the ground of individual merit
arising from any conduct or mode of life on his part,
but because intrinsically, quct Brahmin, he is twenty
times the superior of those of a lower caste. 1

Aristotle and Plato, while not perhaps explicitly
repudiating the idea of spiritual equality, laid no
emphasis upon it. In fact, inasmuch as they held
that individuals had an existence as persons only
as members of the State, their intrinsic worth as
persons could hardly have been clearly recognized.
Thus, while the physical and mental differences
between individuals were clearly recognized and
repeatedly drawn, little or no mention was made of
the essential spiritual likeness which underlies these
differences. The natural result of this was that
these mental and physical differences were so empha-
sized as to divide men into classes almost generically
distinct. The gap which thus divided Greek and

1 Early History of Institutions, p. 309, American edition.

BQUAIJTY 87

barbarian was made so broad as wholly to exclude
the latter from the essential rights and privileges
which were conceived to belong to the former. In
this way Aristotle was enabled to defend slavery as
an institution just alike to the master and enslaved.
It is true that these views may be held to be but
emphatic statements of the undoubted natural, physi-
cal, and mental inequalities of men. Still, when we
find no mention made of the spiritual equality of all
mankind; when man's whole ethical duty in this
world is declared to be exhausted in an obligation to
further the interests of his State ; when the immor-
tality of the State is dwelt upon rather than that of
the individual soul ; and when the individual's claim
upon the State for recognition is wholly determined
by these natural inequalities of mind and body, —
when we consider all this, we can not avoid main-
taining that these philosophers very nearly, if not
actually, taught a doctrine of spiritual inequality.

The Stoics nearly approached the idea of the
spiritual equality of all men, but did not actually
reach it. Theirs was a doctrine of equality based
upon the essential rationality rather than the spirit-
uality of men. To them, all men, as participants
in the world-reason, had an essential likeness and
equality. They were thus able to teach a doctrine
of cosmopolitanism as opposed to the narrow partic-
ularism of the Greek city-states. " Cosmopolitanism
took the place of politics," says Zeller, " and of this
the Stoics were the most zealous and successful
prophets. Since it is the similarity of reason in

88 SOCIAL JUSTICE

the individuals on which all community among men
rests, the two must be coextensive. All men are
akin. They have all the same origin and the same
mission. All stand under one law, are citizens of
one state, members of one body. All men, as men,
have a claim to our beneficence. Even slaves can
claim their rights at our hands and show themselves
worthy of our respect. Even to our enemies we, as
men, owe clemency and ready support."

Stoicism was thus able to reveal to the ancient
world a common humanity — a unity of the human
race. This, however, was a unity only obtained by
rejecting existing political divisions as immaterial
and accidental, and predicating rationality as at once
the common and essential characteristic of mankind.
It was not a unity based upon a mutual charity,
sympathy, and love, following from a conscious
recognition that all men and women are moral
beings, all the objects of a single divine and loving
Will. In fact such an idea could not develop until
a true doctrine of conscience had arisen, and this
not even the Stoics had been able to create. "To
the Stoic ethics belongs the glory," says Windelband,
" that in it the ripest and highest which the ethical
life of antiquity produced, and by means of which it
transcended itself and pointed to the future, attained
its best formulation." l This is true, and yet, as we
now understand it, the Stoics failed to grasp the
idea of moral obligation in its highest sense of
requiring the being and doing of good for its own

1 History of Philosophy, English translation, p. 176.

EQUALITY 89

sake. To them, as to other Hellenic schools of
thought, the good was ever something ultimately
pleasant, and to be sought because it was such.
They taught, to be sure, that the duty of obedience
is not an obligation imposed from without, but a
command given from within ; but this command was
conceived as based upon utilitarian grounds. What-
ever apparent sacrifice was involved in the search
for good, they believed was apparent and not real,
inasmuch as the realization of a higher good w^s
supposed more than to compensate for the immediate
suffering or deprivation undergone. Thus, in fine,
to put the matter in a nutshell, " The central prob-
lem of Greek ethics was not to determine the moral
laws, but rather to find the chief good and the mode
of conduct which would secure it. It was the doc-
trine of goods, rather than the doctrine of duties,
which gave the keynote to the whole moral phi-
losophy of the Greeks. With the Stoics, as with
their contemporaries and opponents, the Epicureans,
and with Aristotle before them, the aim was to
determine the highest good of life." 1

It was first in the doctrines of Christianity, espe-
cially as interpreted by the followers of St. Paul,
that the true doctrine of spiritual equality was
taught. In the common fellowship with Christ all
became equal. In the Christian doctrines of charity,
self-sacrifice, and obedience the true theory of con-
science was revealed.

This idea of spiritual equality we state as a fact,

1 French, Concept of Law in Ethics.

40 SOCIAL JUSTICE

rather than as a result to be striven for in any
scheme of distributive justice. It is a verity the
recognition of which is apodictically impelled upon
us by our reason. It is not a condition over which
we can exercise any influence either to aid or pre-
vent. Its recognition serves, therefore, to furnish
us, not with a canon of desert, but with the funda-
mental reason for distributive justice. It is because
all men are persons in this ethical, spiritual sense,
that we owe it to ourselves as well as to others, to
seek the establishment of an order in which the
utmost possible justice shall prevail. In fine, then,
we have thus far accepted the idea of equality as
playing an essential part in our scheme of justice,
only in the sense that all individuals are entitled
to an equality of consideration. And this, after all,
is but another way of expressing that idea of im-
partiality which we accepted in the beginning, and
which finds expression in the command, " Be a person,
and respect all others as persons."

II. Natural Equality. — In what we have had to
say of spiritual equality, we have dwelt more or less
upon the theory of natural equality. According to
the theory of natural equality, strictly conceived,
all men and women are naturally, that is, when
born, substantially and potentially equal, physically
and mentally. Whatever inequalities subsequently
appear must, if we accept a doctrine of natural
equality, be conceived to be due to differences in
education and other objective conditions of life.

We are not acquainted with any writer who has

EQUALITY 41

maintained the absolute congenital equality of all
men, but there are many who have held that the
natural differences are so slight that they may
safely and properly be disregarded in the formula-
tion of a just distributive scheme. Thus says God-
win: "In the uncultivated state of man, diseases,
effeminacy, and luxury were little known, and of
consequence the strength of every one much more
nearly approached to the strength of his neighbor.
In the uncultivated state of man the understand-
ings of all were limited, their ideas and their
views nearly upon a level." 1 To the following
effect speaks also Hobbes : " Nature has made men
so equal, in the faculties of the body and mind;
as that though there be found one man sometimes
manifestly stronger in body, or of quicker mind
than another, yet when all is reckoned together,
the difference between man and man is not so con-
siderable, as that one man can thereupon claim to
himself any benefit, to which another may not pre-
tend as well as he. For as to strength of body, the
weakest has strength enough to kill the strongest
either by secret machination, or by confederacy
with others, that are in the same danger with him-
self. And as to the faculties of mind, setting aside
the arts grounded upon words, and especially that
skill of proceeding upon general and infallible rules,
called science; which very few have, but in few
things; as being not a native faculty, born with
us; nor attained, as prudence, while we look after

1 Political Justice, Book II, Chapter IV.

42 SOCIAL JUSTICE

somewhat else, I find yet a greater equality amongst
men than that of strength. For prudence is but
experience ; which equal time equally bestows on all
men, in those things they equally apply themselves
unto. That which may perhaps make such equality
incredible, is but a vain conceit of one's own wisdom,
which almost all men think they have in a greater
degree than the vulgar; that is, that all men but
themselves, and a few others, whom by fame or
for concurring with themselves, they approve. For
such is the nature of men, that howsoever they may
acknowledge many others to be more witty, or more
eloquent, or more learned; yet they will hardly
believe that there be many so wise as themselves;
for they see their own wit at hand and other men's
at a distance. But this proveth rather that men are
in that point equal, than unequal. For there is
not ordinarily a greater sign of the equal distribu-
tion of anything, than that every man is contented
with his share." 1

Adam Smith, in his Wealth of Nations, says upon
this point : " The difference of natural talents in dif-
ferent men is, in reality, much less than we are aware
of, and the very different genius which appears to
distinguish men of different professions, when grown
up to maturity, is not upon many occasions so much
the cause as the effect of the division of labor. The
difference between the most dissimilar characters,
between a philosopher and a common street-porter,
for example, seems to arise, not so much from nature,

i Leviathan, Chapter XIIL

EQUALITY 48

as from habit, custom, and education. . . . By nature
a philosopher is not in genius and disposition half so
different from a street-porter as a mastiff is from a
greyhound, or a greyhound from a spaniel, or this
last from a shepherd's dog." 1 Proudhon comes the
nearest of all in declaring the original mental equal-
ity of men when he says, "Talent is a creation
rather than a gift of nature. • • . Without society,
without the education and powerful assistance which
it furnishes, — the finest nature would not be superior
to the most ordinary capacities in the very respect
in which it ought to shine ." 9 In another place in
the same work, however, Proudhon takes a contra-
dictory position. 8

We do not, of course, need to stop for any length
of time to demonstrate the fact of the natural
inequalities among men. It is sufficient to say that
every recent advance of science has served to show
these inequalities to be greater than was before sup-
posed. As a matter of fact, indeed, as we have seen,
none of the writers who have dwelt most earnestly
upon this point have done more than maintain a
substantial equality. No one has dared to assert an
absolute equality. There are, however, two observa-
tions which should be made before we leave this
subject.

In the first place, attention should be called to the
fact that, in admitting the existence of natural dif-

1 Book T, Chapter II.

* What is Property? Tucker translation, p. 198.

• See post, p. 64, note.

44 SOCIAL JUSTICE

ferences of physical and mental powers among men,
there is given no support to a theory that would
hold it possible, or rational, to group men into privi-
leged classes, according to the simple principle of
birth in this or that family line. The degree to
which heredity is influential in determining the
character and capacities of the individual is not,
perhaps, exactly ascertainable. But no grounds
exist for maintaining this power to be so potent
as to make it reasonably certain that the distinc-
tive traits of an ancestor will be handed down to
his descendants. By this we do not mean that
social and political exigencies may not require the
existence of an aristocracy of birth; but if they
do, it will be these exigencies, and not the facts
of individual desert, which justify the discrimina-
tions shown. That is to say, the need for a class
of individuals enjoying special opportunities for per-
sonal development, and charged with the perform-
ance of special functions in the political or social
economy of a given people, being granted, the mere
fact of birth may be accepted in default of any other
sufficiently definite principle of distinction. For
the same reason an hereditary kingship may be
maintained, not because it is thought to secure for
a nation the best kings, but because it guarantees
a definite principle of royal succession.

For an aristocracy with special privileges without
corresponding special functions to perform, there
would seem to be no possible justification. Never-
theless, aristocracies of precisely this character have

EQUALITY 45

abounded in history. We are thus forced to ask,
Upon what grounds were they justified in the eyes
of the people among whom they prevailed ? Funda-
mentally, we must believe that these class distinc-
tions have been recognized because of a more or less
vague idea prevalent among the people that there
is between the noble and base-born a distinction
almost as essential as that between mankind and the
lower animals. Otherwise there could hardly have
been obtained that popular acquiescence, which for
so long a time endured, in the economic and political
advantages that were attached to the upper orders.
When we find a divine right of kings to govern
wrong widely admitted ; when to monarchs of noto-
riously evil lives we find supernatural powers ascribed,
such, for example, as the " royal touch " for the cure
of disease ; when we discover a Beaumarchais alleging
as a justification for his aristocratic pretensions that
he has taken the trouble to be born, and a French
dame of high degree replying, when warned of the
coming of the revolution, that " the Lord will think
twice before he will allow the rights of the nobility
to be endangered," — when we find such ideas held
by the upper and accepted by the lower classes, we
cannot but believe that, whether explicitly avowed
or not, the position has been held that there are
orders of men distinguished by differences which
go deeper than personal capacities, and which thus
separate them, qu& men, from one another.

The definite repudiation of such an idea has been
more completely recognized in America than in the

46 SOCIAL JUSTICE

countries of the Old World. At the same time it
may well be questioned whether, to some extent at
least, we have not swung the pendulum too far the
other way j whether, in other words, in refusing to
acknowledge the validity of pretensions based upon
mere title or birth we do not, as a people, fail to give
that recognition, and display that deference, which is
properly due where individual worth has manifested
itself. Do we not, in short, fail to show that respect
which is owing to men of letters, to public-spirited
citizens, or even to the individuals whom we have
honored by selecting as our highest rulers of the
State ? And, on the other hand, is there not often
found an improper deference paid to the man merely
of wealth or of accidental prominence ? The aristo-
cratic principle, when properly interpreted, is a valid
one. In every society there should exist an aristoc-
racy of merit and individual worth. The old Pla-
tonic ideal of a society in which the wisest and best
of its members exercise the controlling influence
cannot in this respect be improved upon, and it may
easily be a question for debate whether the existence
of an aristocracy such as England has, which, though
based upon birth, represents a class of citizens who
recognize their obligations toward their State and
their society, is not preferable to the total absence of
any aristocracy whatsoever.

Leaving this subject of aristocracy, we turn to a
still more important question which arises in connec-
tion with the fact of the natural inequalities of men.
Granting that these inequalities exist — inequalities

EQUALITY 47

due to no original merit or demerit on the part of
the individuals subjected to them — does this fact
impose any obligations upon the individuals who
are the more favored, or upon society as a whole, to
correct, in a measure at least, if possible, the disad-
vantages under which the more unfortunate of our
fellow-beings rest?

As an abstract principle of justice, it would seem
that, so far as the opportunity for self-development
of these unfortunates is affected, it does. When we
consider that all men are rational beings and moral
potentialities, and thus fundamentally equal, one
cannot escape from the conclusion that a perfect
regime would be one in which all individuals would
have an opportunity for the development and exer-
cise of those capacities which, from the highest ethical
standpoint, should be cultivated and employed. And
if this be the ethical ideal, it nebfessarily follows that,
so far as it lies within our power, we should strive
for its attainment.

The recognition of this obligation does not, of
course, commit us to anything resembling commu-
nism. This appears when we consider the difficulties
that surround the practical application of the rule,
and the specific duties that it implies. In the first
place, it cannot be asked, at least so far as this one
rule is concerned, that we individually, or society as
a whole, should undertake the correction of any but
the few inequalities which are obviously due to cir-
cumstances which have been beyond the control of
those affected by them. Thus, even were this rule

48 SOCIAL JUSTICE

of justice generally recognized and followed, there
would still be left uncorrected all those inequalities
that have been due to controllable causes. Further-
more, this rule alone places no obligation upon the
individual to share with others those advantages
which he has secured through his own efforts and
without assistance from naturally superior abilities
or environment. And, finally, this principle would
imply neither a right on the part of the individual
to demand an opportunity for the development and
exercise of every talent which he may potentially
possess, nor to ask that he be given exactly the same
educational advantages, and be secured the same
means for the employment of his physical and mental
capabilities, as those enjoyed by his mates. Accord-
ing to the principles of justice which we have already
established, the individual can claim from others as a
right only those privileges which, when enjoyed, will
promote his own best good ; and this best good, as
we have also seen, must necessarily be interpreted in
terms of the general good of all humanity. As for
the character of the opportunities to be enjoyed by
each individual respectively, this clearly must de-
pend upon his special capacities. For example, the
principle would not mean that the microcephalic
idiot and the gifted genius should receive the same
educational treatment. It would mean nothing more
than that, so far as possible, that kind of opportunity
for economic advancement or intellectual develop-
ment should be given which is best calculated to
actualize the powers potentially possessed. Further

EQUALITY 49

still, it is to be recognized that, as has been already
said when speaking of aristocracy, aside from any
other considerations, a certain amount of inequality
may be desirable upon grounds of social utility. As
Professor Mackenzie has said : " If, indeed, all could
be maintained at the highest level of human life, it
would obviously be well that they should be so main-
tained. But the greatest advances in the condition
of mankind have hitherto been made by a few indi-
viduals who have been able to develop particular
kinds of ability in an exceptional degree ; and even
if it were true that such individuals have by nature
no more ability than their fellows, it might yet be
desirable among men, as among bees, that a few
should be picked out from among the workers —
whether by circumstances or by lot, or by some other
mode of selection — to be sovereigns and leaders/ 9 1

One consequence, and a very important one,
does, however, follow from the acceptance of the
rule of justice of which we have been speaking.
This is, that, when put into practice, the two
ideas of charity and justice will lead to exactly the
same conduct. In other words, justice when prop-
erly interpreted, and charity when properly applied,
must lead to identical treatment of others. Psy-
chologically the ideas of charity and justice are
distinct. The one is based upon a sympathy which
springs up spontaneously at the sight, or knowledge,
of suffering. The other is a sense of obligation,
resulting from a reasoned judgment as to what is

1 Introduction to Social Philosophy, p. 287.

50 SOCIAL JUSTICE

properly owed to another under the given circum-
stances. The one is, in a sense, emotional and im-
pulsive ; the other, intellectual. But not all emotions
or impulses, even of sympathy, should be yielded to.
This being so, there is the necessity of determining,
intellectually, in each case, whether that which we are
prompted by our tenderness of heart to do should be
done. When we stop to ascertain this, we find that
we have no right to extend charity except where it
is deserved. But assistance is deserved only where
the suffering has been, to some extent at least, un-
merited, and where the help which is requested, or
offered, is calculated, upon the whole, beneficially to
affect the recipient. We are thus brought to the
consideration of precisely the same facts as those
which condition the rule of justice that we have
been examining.

In truth, it is perhaps not incorrect to say that much
that is charity in one age becomes recognized as sim-
ple justice in the next. We are wont to classify as
deeds of justice only those acts toward others, the
obligation for the performance of which is strongly
and clearly felt by us. As, however, we broaden
our intellectual and moral horizons, new duties are
brought within our view, and many acts that before
have seemed matters of grace and mercy appear, in
the new and fuller light, as demands upon us for
simple justice. Thus, in imagination at least, we
can picture to ourselves a time when such perfect
justice will be rendered, that true charity will find
no material upon which to employ itself. When this

EQUALITY 51

stage of development is reached, the idea of justice
will not swallow up the feeling of sympathy for suf-
fering, nor lessen the tenderness felt by the strong
for the weak, but, where help is given, it will be given
because it is deserved, and not for the sake of satis-
fying a desire which may or may not be a proper
one. Under such conditions, even where no direct
relations have ever existed between the giver and the
receiver, the extending of aid will be deemed but a
matter of simple justice. The individual, as a moral
being, will be recognized to have the right to demand
that, so far as it lies within human power, society
shall be so organized as to give to all a due op-
portunity for happiness and growth. And, recipro-
cally, each individual will perceive that, so far as
it lies within his might, it is his duty to bring it
about that such opportunity is given.

III. Civil Equality. — This form of equality may
be considered in comparatively few words. By civil
equality is meant legal equality, the possession of
equal rights in the sphere of private law by all the
members of a given body politic. Such an absolute
and universal equality has never been attempted in
any system of jurisprudence, nor would it be possible
of establishment without leading to the greatest evils.
The reason for this is that not all individuals, irre-
spective of age or sex, are equally capable either of
putting civil rights to their proper use, or of satis-
factorily fulfilling the corresponding civil obligations.
Thus in all communities, even in those where the
doctrines of freedom and equality have received the

62 SOCIAL JUSTICE

widest acceptance, we find minors released from
many of the legal obligations that are placed upon
adults, and, correspondingly, deprived of privileges
or capacities which their majors enjoy. The same
is true as to the respective legal competences of men
and women, of persons compos mentis and persons
non compos mentis. Where these distinctions are
based upon actual differences in personal capacity,
and have for their aim the securing of the greatest
aggregate justice, rather than the creation of arbi-
trary distinctions, their existence is fully justified.
In fine, then, though often spoken of as such, civil
equality cannot be considered an ic&al of justice.
The nearest we can come to framing a rule of justice
in this respect is to say that there should be substan-
tial equality as to all individuals who are conceived
to be, from an intellectual standpoint, able to exer-
cise a sound discrimination in all matters with which
the private law has to deal ; and that exceptions to
this rule should be made solely for the sake of secur-
ing greater legal protection to those who are not
thus fully competent.

Civil equality such as this does not exclude the
feature found in all systems of jurisprudence, that
different subjects, and the rights of different classes
of persons, should be examined and passed upon in
different courts, and that each of these tribunals
should have its own mode of procedure and special
forms of relief. Thus in our own system of law, we
assign certain causes of action to what are known as
law or civil courts, while others are given to equity

EQUALITY 53

courts, while still others are held to lie wholly within
the jurisdiction of admiralty tribunals. So also we
surrender to courts martial and other military courts
or commissions the trial of offences committed by
members of the military forces of the country, whereas
all other crimes are triable only before the ordinary
criminal tribunals. Likewise on the Continent,
though not in England or the United States, mat-
ters connected with the administration of government
are withdrawn from consideration by the ordinary
courts of the country, and reserved for trial by spe-
cially established administrative tribunals. Here,
too, so long as these distinctions are based upon con-
siderations of approved expediency, no canon of dis-
tributive justice is violated.

A feature of modern systems of jurisprudence that
is closely allied to, and in fact often confused with,
the idea of civil equality, is the recognition of an
equality of all persons before the law. By this is
meant that when persons are brought before a court
of justice for the interpretation or enforcement of
their respective rights, the judgments rendered are to
be determined wholly by the facts and law involved,
and hence irrespective of the social, economic, politi-
cal, or moral standing of the parties litigant. At first
thought, this may seem un justifiable. When, how-
ever, the true nature of law, and the object sought in
its enforcement, is considered, it is seen to be emi-
nently just. As we shall elsewhere have occasion to
point out the proper province of law, it will be suffi-
cient here simply to assert that by its very nature

54 SOCIAL JUSTICE

and limitations the law is prevented from even at-
tempting the determination, in individual cases, of
ethical desert. The aim of law as a whole is, of
course, to secure justice in an ethical sense; but, even
where there is a certainty that wise and good judges
can be secured, so various are the degrees of moral
responsibility, so almost infinite are the considerations
involved in estimating the depths of human merit,
while so limited are the means which the law has at
its command for the discovery of truth, it is gener-
ally recognized that, in the long run, the greatest
amount of actual justice will be secured where the
lawmaking body lays down in general terms the
principles which the courts are to follow, and
the latter apply them impartially in all cases
where the facts are such as to bring them within
the general terms of the rules thus legislatively
determined.

IV. Political Equality. — By political equality is
meant an equality of right to share in the direction
of public affairs, either by way of holding office, or
by selecting those who do.

Here there is obviously no good ground for de-
manding that the law should secure to all persons
like privileges.

When an individual claims a political right, he is
asking for an authority to participate in the making
and executing, not simply of the laws by which he
himself is to be governed, but of the laws which
are to control the actions of others as well. What-
ever may be the essential basis of the State's right

EQUALITY 55

to be, a People has the undoubted right to demand
as efficient a government as can be obtained. If
this be so, no individual can claim a political
authority or privilege as a right, save as he can
demonstrate that he possesses both the capacity
and the disposition properly to exercise it when
obtained. The rule of justice here to be laid down
is, then, the same as that stated in our second
chapter; namely, that rights should be distributed
according to the capacities and the dispositions of
the individuals who are to exercise them.

In all nations where political rights are liberally
granted, the attainment of a certain age is accepted
as evidence of a mental capacity sufficient for the
casting of an intelligent vote, or for the proper
exercise of the duties which attach to a public
office. Of course, however, no one believes that
all citizens are not so qualified before attaining the
given age, or that they are necessarily so qualified
when they have attained it. As Amiel has said in
his Journal, "The pretension that every one has
the necessary qualifications of a citizen simply
because he was born twenty-one years ago, is as
much as to say that labor, merit, virtue, character,
and experience are to count for nothing." The
true reason for fixing such an arbitrary distinction
as age is that, a general diffusion of political rights
being considered advisable, and it being beyond
the power of the government to ascertain in each
individual case the capacities and character pos-
sessed, the granting of the rights in question to all

56 SOCIAL JTX8TICB

above a certain age, will, upon the whole, best attain
the purpose sought.

What we have said as to age being a rough test
of political ability, applies also in large measure
to such other general criteria as ability to read
and write or the ownership of a given amount of
property. As regards the last qualification, how-
ever, the additional idea is sometimes present that
there is thus selected a class who, besides capac-
ity, will have a special interest in many of the
matters which are to be passed upon.

Though there is no necessary connection between
the wide diffusion of political rights, and a general
recognition of an equality in private rights, the two
are apt to go hand in hand. Between these two and
the other forms of equality there cannot, however, be
this much said. Political and legal equality may go
hand in hand with the greatest of actual inequalities
in wealth and social standing. Indeed, as Fitzjames
Stephen points out in his Liberty , Equality, Fraternity,
it is perfectly possible for a greater aggregate amount
of equality to exist under a regime in which a strict
legal, as well as social, caste system prevails, than in
the most democratically organized of societies. For
it may be that, while under the caste system a few
broad and definite distinctions are drawn, within the
great classes thus established, a very substantial equal-
ity of members obtains. On the other hand, where
the progress of democratic ideas has resulted in the
removal of all artificial restraints and barriers, and
individuals compete socially, politically, and economi-

EQUALITY 57

cally with one another according to their naturally
given powers, a competitive struggle of such intensity
may exist that the greatest of inequalities are brought
about. Natural differences of ability and fitness being
allowed to have their full influence, this is, indeed,
apt to be the result. Given an unrestricted competi-
tion in any field of activity, such natural inequalities
as exist among the competitors may be counted upon
to make themselves evident in their most extreme form.
Nor does the general diffusion of political rights
necessarily lead to an equal diffusion of political
powers. As Stephen says: " Legislate how you
will, establish universal suffrage, if you think proper,
as a law which can never be broken, you are still as
far as ever from equality. Political power has changed
its shape, but not its nature. The result of cutting it
up into little bits is simply that the man who can
sweep the greatest number of them into one heap
will govern the rest. The strongest man in some
form or other will always rule. If the government
is a military one, the qualities which make a man
a great soldier will make him a ruler. If the gov-
ernment is a monarchy, the qualities which kings
value in councillors, in generals, in administrators,
will give power. In pure democracy the ruling
men will be the wire-pullers and their friends."
And again: "To try to make men equal by altering
social arrangements is like trying to make the cards
of equal value by shuffling the pack. Men are
fundamentally unequal, and this inequality will show
itself, arrange society as you like."

58 SOCIAL JUSTICE

V. Social Equality. — " Social equality," says Bryce,
"denotes the kind of mutual courtesy and respect
which men show to one another when each feels the
other to be 'as good as himself/ — a respect which
stands between condescension, on the one hand, and
submissiveness, on the other." The recognition by
one individual of the social equality of another with
himself is an intense or intimate form of that " con*
sciousness of kind" which lies at the basis of all
social and political associations. As we have said be-
fore, we cannot conceive of men grouping themselves
into more or less permanent unions for purposes of
mutual aid and enjoyment, without there being in
their minds a general feeling that they and their asso-
ciates are members of one species, and have common
natures and common desires. For mere purposes of
military offence and defence and of economic coopera-
tion, it is not necessary that this " consciousness of
kind" should extend to more than the most general
of those characteristics which distinguish races of
men from one another, or men from animals. When,
however, we advance to those higher circles of fellow-
ship which are formed within the general sphere of
a given society, — associations founded upon recog-
nized likenesses of mind and character, — it is inevi-
table that men and women should be classified upon
different planes of social value. Such distinctions
are both natural and just. It is natural that differ-
ences in intellect, in education, and in character
should lead to differences in taste, and that those of
similar tastes should feel themselves more closely

EQUALITY 59

akin than those of dissimilar natures. It is also
just, for it is of the very nature of justice that due
recognition should be given to essential superiorities
or inferiorities. The only caution to be observed is
that these distinctions should be differences of char-
acter and worth, and not accidental inequalities of
body or economic condition. It is true, as Bryce
says, that " the more social equality we can secure
without running counter to nature the better " ; but,
"more harm than good will be done by trying to
force men into a kind of intimacy which they feel
to be unreal, because not grounded on sympathy of
thought and tastes and habits." 1

VI. Economic Equality. — By economic equality is
of course meant equality in the possession of articles
of material value, — in other words, of wealth. At
this point we have to discuss only the question as
to the extent to which the principle of absolute
equality is to be accepted as a canon for the
distribution of economic goods. The examination
of all other rules for the attainment of justice
in this respect will be made in a subsequent
chapter.

Certain schools of communists declare that justice
demands an absolute equality in distribution. In
order that this result may be reached, they of course
assert that almost, if not all, property should be
owned in common. Furthermore, in order to render
this equality more real and permanent, most com-
munistic schemes require that the manner in which

1 Century Magazine, July, 1888, article, "Equality."

60 SOCIAL JUSTICE

these distributive shares are to be consumed shall be
subjected to the control of the State.

Schemes of this sort, so far as regards the theo-
retical principles upon which they are based, may be
roughly divided into two classes. First, there are
those of the order of Plato's Republic, in which the
welfare of the whole is so emphasized as to make
that of the individual an almost negligible factor,
and in which, therefore, the allegiance of the citizen
to his State is conceived to be so important that all
local affections, such as those which surround the
family, are discouraged as tending to prevent that
desired complete identification of the individual's
interest with that of his State. Secondly, and more
common, are those communistic schemes that are
founded on the alleged abstract natural right of
every person to as complete an economic and social
equality as is practically possible.

The argument that has been made in a preced-
ing chapter of this book has demonstrated the im-
propriety of such a surrender of the individual to
the whole, or rather his absorption in it, as is called
for by the Platonic ideal. And even if this were not
so, the communal life such as Plato advocated would
serve, as Aristotle immediately showed, rather to
discourage than to promote intensity of civil alle-
giance.

Those communistic schemes which are economic
rather than political in character, and which found
the demand for absolute equality upon an alleged
inherent right of all individuals to uniform treat-

EQUALITY 61

ment, are represented in the systems of Baboeuf,
Cabet, and Proudhon. Baboeuf was a representa-
tive of the communism of the French Revolution.
The revolutionary society which he organized de-
clared in the first article of its official manifesto
that, "Nature has given to every man an equal
right to the enjoyment of all goods." The conclu-
sions drawn from this premise were that there
should be an absolute equality in wealth and a uni-
formity in life. " The whole scheme," says Dr. Ely,
"is dreary and monotonous. All differences save
those relating to age and sex being abolished,
equality is interpreted to mean uniformity. All
must be dressed alike, save that distinctions are
made for sex and age ; all must eat the same quan-
tity of the same kind of food, and all must be edu-
cated alike. As the higher goods of life are lightly
esteemed, education is restricted to the acquirement
of elementary branches of knowledge, and of those
practical in a material sense. Comfortable medioc-
rity in everything is the openly expressed ideal." 1

Cabet's ideal, while calling for community of
goods and an equality of distribution, is of a superior
order to that of Baboeuf s in that marriage and family
life are held sacred, higher education is advocated,
and in general the value of aesthetic and intellectual
pursuits recognized.

Proudhon, who strenuously denied that he was a
communist in the sense that all wealth should be

1 French and German Socialism, p. 30. See this work for an excellent
account of the theories of Baboeuf and Cabet.

62 SOCIAL JUSTICE

publicly owned, was yet a communist in that he
advocated absolute economic equality as an ideal.
Dr. Ely says: "He was not a communist in the
sense of favoring communities such as we see in a
few places at present, because they involve control
and authority. He was, on the contrary, in favor
of anarchic equality. The distinction might be made
by saying that he was a communist, but not a com-
nuitarian." * Strangely enough, Proudhon is able to
deduce the rightfulness of absolute equality in dis-
tribution from the premise that rewards should be
apportioned according to work done. This feature
of his system we shall consider when we come to
examine the labor theory of property. But his doc-
trine of equality may be considered at this point.

Proudhon does not deny that men and women
differ widely both in mental and physical abilities,
but declares that this should not lead to inequality
of wage, and for the following reasons : In the first
place, as he declares, mental differences as shown
in varieties and degrees of talent and genius are due
to, or at least their development is rendered possible
by, social causes alone. Thus he says: " Rarity
of function bestows no privilege upon the function-
ary, and that for several reasons, all equally forcible.
(1) Rarity of genius was not, in the Creator's
design, a motive to compel society to go down on
its knees before the man of superior talents, but a
providential means for the performance of all func-
tions to the greatest advantage of all. (2) Talent

1 French and German Socialism, p. 189.

EQUALITY 68

is a creation of society rather than a gift of Nature ;
it is an accumulated capital, of which the receiver
is only the guardian. Without society, — without
the education and powerful assistance which it fur-
nishes, — the finest nature would be inferior to the
most ordinary capacities in the very respect in which
it ought to shine. The more extensive a man's
knowledge, the more luxuriant his imagination,
the more versatile his talent, the more costly his edu-
cation has been, the more remarkable and numer-
ous were his teachers and his models, the greater is
his debt. The farmer produces from the time that
he leaves his cradle until he enters his grave; the
fruits of art and science are late and scarce ; frequently
the tree dies before the fruit ripens. Society, in culti-
vating talent, makes a sacrifice to hope. (3) Capac-
ities have no common standard of comparison ; the
conditions of development being equal, inequality of
talent is simply specialty of talent." *

Society, then, argues Proudhon, has the right to
demand from each individual that he shall contrib-
ute to its welfare according to capacities which have
been developed through its instrumentality. When
all have done this, they stand upon a level plain of
desert, and should be rewarded accordingly. Fur-
thermore, in any civilized society all production is
social. That is, not only are values socially deter-
mined, but production itself is dependent upon asso-
ciation. " The isolated man can supply but a very
small portion of his wants; all his power lies in asso-

1 What i$ Property t Tucker translation, p. 198.

64 SOCIAL JUSTICE

ciation, and in the intelligent combination of univer-
sal effort." 1 Finally, Proudhon says, those who
have special talents are sufficiently rewarded when
they are given the opportunity of exercising their
several abilities. " What," he asks, "is the economi-
cal meaning of wages ? The productive consumption
of the laborer. The very act by which the laborer
produces constitutes, then, this consumption, exactly
equal to his production, of which we are speaking.
When the astronomer produces observations, the
poet verses, or the savant experiments, they consume
instruments, books, travels, etc. ; now, if society sup-
plies this consumption, what more can the astrono-
mer, the savant, or the poet demand? We must
conclude, then, that in equality, and only in equality,
St. Simon's adage — ' to each according to his capac-
ity, to each capacity according to its results ' — finds
its full and complete application." *

1 Op. cit., p. 148.

' Op. cit., p. 200. Elsewhere he declares, though this would scarcely
seem necessary to, or even consistent with, his main argument, that,
inasmuch as there is a limit to producible things, or at least to
things socially useful, he who is able to finish his task in a shorter
time than his fellow-workers should not be permitted to continue
producing. " He who finishes before others may rest, if he chooses;
he may devote himself to useful exercises and labors for the main-
tenance of his strength and the culture of his mind. This he can do
without injury to any one ; but let him confine himself to services
which affect him solely." And he adds, what is certainly contradic-
tory to those paragraphs which we have quoted above, "Vigor,
genius, diligence, and all the personal advantages which result there-
from, are the work of nature, and, to a certain extent, of the individ-
ual; society awards them the esteem which they merit: but the
wages it pays to them is measured, not by their power, but by their
production. Now the production of each is limited by the right of
all." (Op. cit. p. 125.)

EQUALITY 65

The defects in Proudhon's reasoning lie upon the
surface. The chief one is the unwarranted assump-
tion that differences in kind and degree of talent are
wholly due to social forces. There is, secondly, the
error of supposing that at any one time the amount
of goods needed or desired by a given society is of
such a limited character that to permit the rapid
worker to produce to the extent of his capacity will
prevent others from finding, pro tanto, the employ-
ment to which they are justly entitled. Aside, how-
ever, from the above assumptions, no good ground
is put forward for denying that rewards should be
apportioned according to diligence displayed. Prou-
dhon, in fact, later on recognizes that where laziness is
exhibited by the worker, his share should be propor-
tionally reduced. But to faithfulness and diligence
he denies the opportunity for increased reward. But
this can be just only if this spirit of faithfulness and
diligence be, as is claimed of talent, the result of
social forces. But such a position Proudhon does
not, and cannot, take.

Besides the above, there are, of course, all the
general objections to communism, such as difficulties
of organization, and failure to furnish such incentives
to effort as are indispensable for the securing of even
moderate productive efficiency.

Godwin in his Political Justice preaches a doctrine
of distributive equality, but bases it, not upon the
principle that all men have a natural right to equal-
ity of treatment, but upon the claim that justice
demands that want-satisfying commodities should be

66 SOCIAL JUSTICE

distributed according to intensity of needs, and that,
in a properly ordered and enlightened society, legiti-
mate wants would be so evenly distributed that an
approximate equality in the apportionment of eco-
nomic goods would be the result. We shall discuss
Godwin's theories more fully when we examine the
validity of the "want theory" as a basis of dis-
tributive justice.

Reasoning from the discussion that has gone
before, it is easily shown that, as an abstract prin-
ciple, the idea of equality in economic goods is of
little value. As we have already learned, the rights
to which individuals may properly lay claim differ
according to the conditions of time, place, the pur-
pose for which they are to be used, and the capacities
and dispositions of the individuals themselves. If
this be so, then, of course the amounts of wealth
which different individuals may justly demand the
enjoyment of, must vary. This point will appear
more plainly when we come to consider what we
conceive to be the true canon of distributive justice. 1

It is not simply in transcendental systems of ethics,
however, that the idea of economic equality becomes
invalid as an abstract principle. The same is true if
the matter be viewed from the purely utilitarian
standpoint. Utilitarianism, whether logically or not,
has been made to assume two forms. On the one
hand, it has been made to mean that advantage to
the individual should be the one aim sought in human
conduct. On the other hand, it has been made to

1 See Chapter VIL

EQUALITY 67

assert that the social welfare should be the result
striven for. In each case, however, the welfare,
whether individual or social, is declared desirable
wholly because of the pleasure which attends it.
Hence the moral value of acts is estimated by their
power to produce pleasure.

If we argue from the individualistic utilitarian
standpoint, it is seen, in the first place, that, strictly
speaking, the idea of justice in the distribution of
economic goods can have no other meaning than as
a rule bidding each individual to seek for wealth
in so far as his happiness is bound up in its acquisi-
tion. No possible standing ground is, therefore, open
for the principle of equality. For if it be the duty
of each individual to seek first his own happiness,
how, logically, can he be held obligated to refrain
from any act that will further that end, whether
inequalities in the distribution of property be the
result or not?

If we argue from the social standpoint, the reason-
able rule is seen to be that laws should, so far as
possible, apportion wealth, not according to the prin-
ciple of equality, but according to needs ; for where
the want is most intense, the pleasure produced by
its satisfaction is the greatest. What, then, is the
meaning of the Benthamistic formulae, " every one to
count for one, and no one for more than one/ 9 and
"the greatest happiness to the greatest number"?
As regards the first formula, there is a validity
where it is intended to mean the same as the
Kantian phrase that every human being is to be

68 SOCIAL JUSTICE

treated as a person, — as constituting a single moral
unit. But when it is employed, as it so often is, to
signify that equality is the principle upon which
pleasures should be distributed, the rule becomes
invalid, and, in fact, implies an assumption of the
equality of mankind similar to that which has played
so prominent a part in all a priori systems of natural
rights. 1 There is, as Ritchie points out, only one
way in which, upon utilitarian grounds, the formula
may be justified as a rule for practice. "That
'every one should count for one, and nobody for
more than one,' can, indeed, be defended on utilita-
rian grounds as the only way or the easiest way of
escaping from the difficulty of distinguishing exactly
between the needs and merits of individuals, and of
arresting the discontent that arises from a suspicion
of injustice." *

Again, the principle, "the greatest good to the
greatest number," is inconsistent with the formula
of the equality of all men, in that the greater aggre-

1 " For practical purposes the principle that, in the estimate of the
resulting happiness by which the value of an action is to be judged,
4 every one should count for one, and no one for more than one,' yields
very much the same direction as that of the formula employed by
Kant for the statement of the Categorical Imperative, which has prob-
ably alwayB commended itself most to readers alive to the best inter-
ests of their time : ' Act so as to treat humanity, whether in your own
person or in that of others, always as an end, never merely as a means. 9
We say for practical purposes, because, as strictly interpreted, the one
by a Benthamite, the other by a Kantian, the significance of the two
formulas is wholly different. The Benthamite would repudiate or
pronounce unintelligible the notion of an absolute value in an individual
person. It is not every person, according to him, but every pleasure
that is of value in itself." — Green, Prolegomena to Ethics, § 214.

* Natural Rights, Chapter XIL

EQUALITY 69

gate of pleasure may often be secured by dividing a
given object of desire among a few, or by giving to
some a greater amount than to others, rather than
by distributing it equally in small shares among all.
Thus, for example, if a government were serving out
meals, an equal amount of food given to all, irrespec-
tive of their needs, might easily result in a surfeit to
some, while others were left unsatisfied. In this
way the application of the rule that "every one
should count for one, and nobody for more than
one " would render impossible the realization of the
greatest good called for by the second rule. The
same difficulty in satisfying the requirements of
both rules is seen when we turn to the problem of
properly distributing intellectual and aesthetic goods.
It can scarcely be doubted that in any society it is
desirable that a certain amount of intellectual and
artistic culture should be provided which, however,
is of such advanced character that its attainment is
practically possible to but a small portion of the
entire community. 1

If, from the Benthamistic or egoistic form of utilita-
rianism we turn to the universalistic or social form of
the theory, as best represented in the writings of
John Stuart Mill, we find logically necessary the
same repudiation of equality as an absolute principle.
According to Mill, " It is quite compatible with the
principles of utility to recognize the fact that some
kinds of pleasure are more desirable than others."

1 Cf . Economic Review, I, 466, and II, 161 ; two articles by Mr.
Bashdall entitled "Justice."

70 SOCIAL JUSTICE

This being so, Mill goes on to declare that the pleas-
ure that is felt by the individual when he sees
the welfare of society advanced, is of a higher and
more desirable order than self-gratification at the
expense of the good of the whole. It is generally
recognized that in thus admitting forms of happiness
that differ one from the other in value, Mill, in fact,
abandons the utilitarian theory. For the kernel of
the utilitarian theory is that pleasure is the sole good
to be sought, and hence that the pleasure-provoking
power of a given line of conduct is the only test as
to whether or not it should be entered upon. But
if pleasures may be considered as of varying values,
an entirely new test of morality is introduced,
namely, that in accordance with which such values
are determined. Thus, in truth, Mill's doctrine, so
far as its practical precepts are concerned, is no
longer hedonistic, and the duties which it inculcates
may easily be made to agree with those which a
transcendental system of ethics develops.

There is, however, another criticism that may be
made upon Mill's theories. Maintaining, as he does,
that social expediency is the one aim to be sought, it
would seem that, logically, he should declare equality
to be just only in so far as its effects are beneficial.
Mill says, " All persons are deemed to have a right
to equality of treatment except where some recog-
nized social expediency requires the reverse, and
hence all social inequalities which have ceased to be
considered expedient assume the character not of
simple inexpediency, but of injustice." This implies

EQUALITY 71

that there is a presumption in favor of equality,
whereas, if we are to place ourselves upon purely
utilitarian grounds, there should be no presumption
either way. To be unjust, an inequality must not
simply cease to be socially useful, but must be posi-
tively inexpedient. Upon utilitarian grounds an
inequality to which can be traced no influences
either for good or for bad cannot stand condemned,
any more than can a given equality similarly neutral
in its social effects. And this, logically, must be
the position maintained, whether or not such in-
equality or equality be due to some merit or demerit
on the part of the individual affected. Upon this
point Green writes: "Upon hedonistic principles it
will only be as ' supposed equal in degree ' that one
person's happiness, i.e. his experience of pleasure, is
to count for as much as another's. Now, as the
ascertainment of this equality in degree between
the happiness of one man and that of another is prac-
tically impossible, and as there is every reason to
think that different men are susceptible of pleasure
in most different degrees, it is hard to see how the
formula, thus interpreted, can afford any positive
ground for that treatment of all men's happiness as
entitled to equal consideration for which the utili-
tarians have in practice been so laudably zealous.
The most that could be deduced from it would be
some very general condemnation of those fixed class
distinctions which, by interfering with the free pur-
suit of pleasure on the part of unprivileged persons,
would seem to lessen the aggregate of pleasure

72 SOCIAL JUSTICE

resulting on the whole. Under it a superior race or
order could plead strong justification, not indeed for
causing useless pain to the inferior, but for system-
atically postponing the inferior's claims to happiness
to his own. Certainly no absolute rule could be
founded on it prohibiting all pursuit of happiness by
one man which interferes with the happiness of
another, or what we commonly call the oppression
of the weaker by the stronger; for, the stronger
being presumably capable of pleasure in a higher
degree, there could be nothing to show that the
quantity of pleasure resulting from the gain to the
stronger through the loss to the weaker was not
greater than would have been the quantity result-
ing if the claims of each had been treated as equal." 1
The chief merits that have been claimed for the
utilitarian system have been, first, its insistence upon
the doctrine of equality, and, secondly, the practical,
i.e. apparently easily ascertainable, character of the
test that it provides for evaluating moral worth. As
regards the first, it is undoubtedly true that the influ-
ence of the theory has been influential in many cases
in bringing about the destruction of arbitrary distinc-
tions. At the same time, as we have just seen, in so
far as it has had this influence, it has had it, not
because of the logical demands of the system, but,
very often, in violation of them. As regards the
second merit claimed, here also the influence of utili-
tarianism has been for the good in many cases, in
that it has demanded of de facto institutions and laws

1 Prolegomena to Ethics, § 214.

EQUALITY 78

that they should justify their right to be, if they
could, by showing that they were for the good of
mankind. As a matter of fact, however, we find,
when we attempt to ascertain the propriety of partic-
ular acts according to utilitarian principles, that, so
far from furnishing us with easily ascertainable cri-
teria, the considerations logically involved are for the
most part quite beyond our powers of determination.
Here again we may quote from Green : " Is it really
possible," he says, " to measure the addition to the
pleasure of others, or diminution of their pains, that
would be caused by the agents abstaining from any
. . . act? . . . The loss of pleasure would vary
indefinitely with different persons ; it would be dif-
ferent in the same person at different times. . . .
How can we be sure that, in all or most cases where
such actions are done, the certain loss of pleasure or
increase of pain to each individual which, taking him
as he is on occasion of each action, would be implied
in his acting otherwise than he does, would be so
overbalanced by increase of pleasure or decrease of
pain to others, that the total sum of pleasure enjoyed
by the aggregate of men, taking them as they are,
would be greater than it is?" 1

On the other hand, moreover, it is impossible to
tell how much evil the utilitarian system has wrought
by confusing men's ideals, by holding forth false
motives, by causing the immediate good to be pre-
ferred to the more remote, and by encouraging (in
fact, if not in theory) the search for the lower and

* i Op. cit., § 344.

74 SOCIAL JUSTICE

more material pleasures, rather than the happiness
that attends the cultivation of our aesthetic, intellec-
tual, and truly moral capacities.

Summarizing our objections to economic equality
as an absolute principle, we find them to be the fol-
lowing: first, the element of individual desert is
wholly disregarded; secondly, no principle is pro-
vided for correcting natural and unmerited inequali-
ties ; thirdly, the same amounts of goods have differ-
ent values to different individuals ; fourthly, in many
cases inequality, though not based on differences in
individual merit, is socially beneficial.

The foregoing discussion has served to show the
invalidity of the principle of absolute equality as a
canon of distributive justice, whether viewed from
the idealistic or utilitarian standpoint. We may,
however, in addition, call attention to the fact that
the principle, even were it not false in theory, would
be practically impossible of maintenance in practice.

If the idea of absolute equality in treatment were
accepted as the governing principle, justice would
demand, not simply that the distributive shares of the
products should be equal, but that the work by which
the products are obtained should be apportioned by
the same standard. The practical incapacity of
any governing body to perform this task is clearly
brought out by J. S. Mill in one of his essays. " It
is a simple rule," he says, " and under certain aspects
a just one, to give equal payment to all who share in
the work. But this is a very imperfect justice unless
the work also is apportioned equally. Now the many

EQUALITY 75

different kinds of work required in every society are
very unequal in hardness and unpleasantness. To
measure these against one another, so as to make
quality equivalent to quantity, is so difficult that
communists generally propose that all should work
by turns at every kind of labor. But this involves
an almost complete sacrifice of the economic ad-
vantages of the division of employments, advan-
tages which are indeed frequently overestimated (or
rather the counter considerations are underestimated)
by political economists, but which are nevertheless,
in the point of view of productiveness of labor, very
considerable, for the double reason that the coopera-
tion of employment enables the work to distribute
itself with some regard to the special capacities and
qualifications of the worker, and also that every
worker acquires greater skill and rapidity in one kind
of work by confining himself to it. The arrange-
ment, therefore, which is deemed indispensable to a
just distribution would probably be a very consider-
able disadvantage in respect of production. But fur-
ther, it is still a very imperfect standard of justice to
demand the same amount of work from every one.
People have unequal capacities of work, both mental
and bodily, and what is a light task for one is an
insupportable burden to another. It is necessary,
therefore, that there should be a dispensing power,
an authority competent to grant exemptions from the
ordinary amount of work, and to proportion tasks in
some measure to capabilities. As long as there are
any lazy or selfish persons who like better to be

76 SOCIAL JUSTICE

worked for by others than to work, there will be
frequent attempts to obtain exemptions by favor
or fraud, and the frustration of these attempts will
be an affair of considerable difficulty, and will by
no means be always successful." 1

The above is, of course, but one of the many diffi-
culties in the organization and administration of a
communistic society. Such other evils as would in-
evitably arise from the persistence of rivalries for
personal reputation and power, from the discourage-
ment, or at least lack of encouragement, of the
higher forms of activity, from the loss of effective
stimulus to industry and concentration of effort,
from undue increase of population, from the dul-
ness and monotony of life necessarily attendant
upon a scheme of absolute equality, — such evils and
many others suggest themselves at the very first
thought. Despite these defects and difficulties, how-
ever, Mill, in his Political Economy, makes the fol-
lowing oft-quoted declaration: "If," he says, "the
choice were to be made between communism with
all its chances, and the present state of society with
all its sufferings and injustices, if the institution of
private property necessarily carried with it, as a con-
sequence, that the produce of labor should be appor-
tioned as we now see it, almost in an inverse ratio
to the labor, — the largest portions to those who have
not worked at all, the next largest to those whose
work is almost nominal, and so in descending scale,
the remuneration dwindling as the work grows

1 " The Difficulties of Socialism," Fortnightly Review, April, 1870.

EQUALITY 77

harder and more disagreeable, until the most fatigu-
ing and exhausting bodily labor cannot count with
certainty on being able to earn even the necessaries
of life, — if this, or communism, were the alterna-
tive, all the difficulties, great or small, of communism
would be but as dust in the balance. But to make
the comparison applicable, we must compare com-
munism at its best with the regime of individual
property, not as it is, but as it might be made. The
principle of private property has never yet had a fair
trial in any country." l

The idea of Equality being repudiated as an
abstract principle of justice, the true principle or
principles of desert must be found in the idea of
Proportionality ; that is, in the proportioning of re-
wards in each particular case according to some
ascertainable conditions of time, place, or person.
The different canons of justice that have been
based upon this idea we shall presently consider.
First, however, we must examine the idea of property.

1 Book II, Chapter L

CHAPTER IV

PROPERTY

The idea of property lies at the very basis of the
political, legal, and economic sciences. In economic
science, dealing largely with exchange values, the
idea of ownership is involved in almost all of its
reasonings, and implied in all of its laws. In juris-
prudence, with its rules directed to the regulation
of the rights arising out of the quiet possession and
enjoyment of articles of value, the idea of owner-
ship is still more fundamental. While in political
science the protection of property is ranked along
with protection of person as one of the chief pur-
poses for which government exists. It is the aim
of this chapter to examine somewhat carefully this
idea of ownership, in order that we may discover
both the real meaning of the conception, and the
ethical justification, if there be one, for permitting
particular individuals to exercise exclusive rights
over objects of value.

In tracing the history of theories of property
we find that the right of ownership has been based
by different writers upon a variety of abstract
principles. The chief of these have been those of

78

PBOPEBTY 79 #

first occupancy, law, labor performed, and needs.
Whether it be proper to accept any one of these
as absolutely valid, we shall now consider.

Occupation Theory. — This is a theory which,
strictly interpreted, means that he who first gains
actual possession of an article of value should be
considered its rightful owner, and should not be dis-
turbed by others in its possession or enjoyment. In
a settled society, where practically every article of
value, which is susceptible of private appropriation,
has been taken possession of by some one, the occu-
pation theory has obviously little opportunity for
application. As a matter of fact the theory has
mainly been held to explain how, in a state of
nature, it was possible for private property rights
to be created which it was the moral duty of men to
respect. Even there, however, the theory has been
held as applicable only to those articles of value
which are considered the direct gifts of God or
nature. The right of the individual to that which
he has made by his own labor is not denied, but the
right to the material upon which his labor is ex-
pended has been based upon the fact of his first
taking possession of it.

As would naturally be expected, we find the occu-
pation theory especially dwelt upon by those writers
who have founded their ethical and political systems
upon the idea of an original state of nature. A typ-
ical view is that of Grotius. " God gave the human
race generally a right to the things of a lower
nature," says Grotius. " . . . Everything was com-

80 SOCIAL JUSTICE

mon and undivided, as if all had one patrimony.
Hence each man might take for his use what he
would, and consume what he could. What each one
had taken, another could not take from him by force
without wrong. Cicero compares this state of things
to the theatre, which, though it be common, yet
when a man has taken any place it is his. And this
state might have continued if man had remained in
great simplicity, or had lived in great mutual good-
will. In sacred history we learn why it was that
men departed from the community of things, first of
movables, then of immovables; namely, because
when they were not content to feed on spontaneous
produce, to dwell in caves, to go naked or clothed in
bark or in skins, but had sought a more exquisite
kind of living, there was need of industry, which
particular individuals might employ on particular
things. And as to the common use of the fruits
of the earth, it was prevented by the dispersion of
men into different localities, and by the want of
justice and kindness which interfered with a fair
division of labor and sustenance. And thus we
learn how things became Property ; not by one act
of the mind alone: for one party could not know
what another party wished to have for its own, so
as to abstain from that ; and several parties might
wish for the same thing; but by a certain fact,
either expressed, as by division, or tacit, as by occu-
pation : for as soon as community was given up, and
while division was not instituted, it must be supposed
to have been a matter of agreement among all, that

PROPERTY 81

what each had occupied he should have for his

own." 1

Here, as seen, occupation is conceived to create
the ethical right to ownership, the idea of a contract,
tacit or expressed, being introduced only to render
fixed and secure the particular rights that have
arisen. That is to say, the right of private possession
and use is created by occupation, and by contract
this is transformed into property.

The views of Grotius are substantially reproduced
by Puffendorf, Wolff, Vattel, and Burlamaqui.

Rousseau gives only a qualified adherence to the
occupation theory. Thus he says: "The right of
the first occupant, although more real than that of
the strongest, does not become a true right until
after the establishment of that of ownership. Every
man has naturally a right to everything that is
necessary to him, but the positive act which makes
him proprietor of certain property excludes him from
the rest. His part being taken, he must limit himself
to it, and has no further right to the community.
... In general, to authorize the right of the
first occupant upon any territory, the following con-
ditions are necessary : first, that the land shall never
have been occupied ; second, that only such a quan-
tity be occupied as will be necessary for subsistence ;
third, that it be taken possession of not by an empty
ceremony, but by labor and cultivation, the only sign
of ownership which, in default erf legal title, should

1 The Laws of War and Peace, Whewell translation, Book H,
Chapter II, section 2, paragraphs 1, 4, and 5.

82 SOCIAL JUSTICE

be respected by others. In fact, in according to
necessity and labor the right of the first occupant,
is it not going as far as would be justifiable ? " '

Criticism of the Occupation Theory. — So far as
the theory is dependent upon the postulation of
rights in a completely non-social and non-civil state,
it is of course subject to the general criticisms which
may be made to such a premise. But that which is
absolutely decisive as to the invalidity of the occu-
pation theory is that it selects as a basis for a right
a fact that may be, and in truth often is, brought
about by simple chance, fraud, or open force. Where
first occupancy has been due to any or all of these
agencies, surely no moral right can be created. 3 If
this be so, then, if for no other reason, simple
occupation cannot be accepted as an abstract prin-
ciple of right. Finally, it is to be observed that
that for which we are seeking is a principle of dis-
tributive justice applicable to conditions as they now
are. The occupation theory, even if accepted, so far
from furnishing a standard for the correction of
present distributive injustices, renders it absolutely
impossible, except in the rarest cases, to ascertain

1 The Social Contract, Book I, Chapter IX.

s At first thought it may seem that a moral right to property may
sometimes be brought about by simple chance, as, for example, where
a man accidentally stumbles upon a rare gem in an uninhabited desert.
The utility of providing that, under such circumstances, the article
found shall be the property of the finder, is ordinarily apparent.
Apart, however, from the need of some rule which shall determine
ownership in such cases, and especially of one which, at the same
time, will stimulate men's alertness, one cannot see that any moral
rights have been created ; that is, rights which may not be set aside
if some other and stronger considerations of utility arise.

PROPERTY 83

the rightfulness of any proprietary rights whatever.
For it is clearly impossible, as to almost all forms
of wealth, to discover who were the first occupants,
and from them to trace by legitimate transfer or
descent the persons now entitled to ownership.

The Legal Theory. — There are a number of writers
who have quite generally been credited with the
theory that the civil law is able to furnish not only
the legal, but the ethical, basis for the institution of
property. Among these are Montesquieu, Hobbes,
Bentham, and Rousseau. Upon first inspection, the
language of these writers does seem to warrant the
opinion that this is their view. When the thought
is carefully analyzed, however, it will be found,
we think, that a different construction is not only
possible, but required.

Montesquieu asserts: "Just as men abandoned
their natural independence to live under political
laws, they renounced their natural community of
goods to live under civil laws. By the first, they
acquired liberty; by the second, property." As a
statement of the origin of property as a legal insti-
tution, objection cannot, perhaps, be made to this.
But when we read farther, it seems as though Mon-
tesquieu believed that the mere fact that a property
right has been once established by law is sufficient
reason why, as a matter of justice, it should never
be disturbed. Thus he says : " Cicero maintains that
the agrarian laws were unjust, because the com-
munity was established with no other view than that
every one might be able to preserve his property.

84 SOCIAL JUSTICE

Let us, therefore, lay down a certain maxim, that
whenever the public good happens to be the matter
in question, it is not for the advantage of the public
to deprive an individual of his property, or even to
retrench the least part of it by a law or a political
regulation. In this case we should follow the rigor
of the civil law, which is the palladium of property." 1

Properly construed, however, there is no assertion
in the above that in the ipse dixit of the law is to be
found the ethical justification of property. That
which is declared is simply that, so important is it in
social and political life that property rights should be
preserved, a case cannot be conceived in which, for
the sake of securing some other public good, it will
be wise to destroy ownership as secured by law. As
Montesquieu elsewhere says, " The public good con-
sists in every one's having his property, which was
given him by the civil law, invariably preserved."

Hobbes's views as to property much resemble those
of Montesquieu. " For where there is no common-
wealth," he says, "there is, as hath been already
shown, a perpetual war of every man against his
neighbor, and therefore everything is his that getteth
it, and keepeth it by force ; which is neither ' pro-
priety' nor 'community'; but 'uncertainty/ Which
is so evident that even Cicero, a passionate defender
of liberty, in a public pleading, attributeth all pro-
priety to the civil law. c Let the civil law,' saith he,
c be once abandoned, or but negligently guarded, not
to say oppressed, and there is nothing that any man

i Spirit of Laws, Book XXVI, Chapter XV.

PROPERTY 85

can be sure to receive from his ancestor, or leave to
his children/ and again, 'Take away the civil law,
and no man knows what is his own, and what
another man's/ Seeing, therefore, the introduction
of ' propriety ' is an effect of commonwealth, which
can do nothing but by the person that represents it,
it is the act only of the sovereign ; and consisteth in
the laws, which none can make that have not the
sovereign power." *

Hobbes, in effect, founds his doctrine of absolute
obedience to any de facto government upon the utili-
tarian ground that, so vital to man's happiness is the
existence of a political order, any act, the tendency of
which is to disturb that order, must be inimical, not
only to the welfare of all, but to the true good of the
individual or the individuals committing it. Such an
act he therefore declares to be not simply legally, but
morally wrong, for, as he holds, it is man's ethical
duty to seek his own happiness. Hobbes does not
deny that particular laws, taken by themselves, may
be unwise or even unjust, but, he declares, that, in the
first place, few individuals are capable of judging
correctly and impartially as to the wisdom or equity
of a law; and, in the second place, even if this were
not so, it is impossible to abstract a given law from
the general body of sovereign commands, or to refuse
obedience to it, without at the same time weakening,
to that extent, the general habit of political obedi-
ence. But, so transcendently important is it that
this general spirit of political subordination should

1 Leviathan, Chapter XXTV.

86 SOCIAL JUSTICE

not be lessened or destroyed, no evil which a gov-
ernor or a law can do will be equal to the harm
which will follow from a diminution of political
authority. Hobbes holds, therefore, as a logical con-
sequence, that the dictum of the law should, in every
case, be accepted by the citizen as binding upon him
both morally and legally.

It is upon these premises that Hobbes declares
that it is not necessary to go behind the dictum of
the law for a justification of property. Property as a
legal institution is to be respected for the same reason
that all legal institutions are to be respected, because
they are supported by the State, and any attack
upon them is, to that extent, an attack upon the State
itself.

When we turn to the views of Bentham we find
much the same ground taken, except that Bentham
by no means admits that the need of avoiding even
the first steps toward anarchy is so absolute that no
circumstances can be conceived in which a violation
of a legal command will, upon utilitarian grounds, be
ethically justifiable. The general beneficence of the
laws which secure men in the possession of their
property is, however, fully recognized by him. The
following quotation from his Principles of the Civil
Code presents his position so fully that little com-
ment will be necessary. " The idea of property," he
says, "consists in an established expectation; in the
persuasion of being able to draw such or such an
advantage from the thing possessed, according to the
nature of the case. Now this expectation, this per-

PROPERTY 87

suasion, can only be the work of law. I cannot
count upon the enjoyment of that which I regard as
mine, except through the promise of the law which
guarantees it to me. It is the law alone which per-
mits me to forget my natural weakness. It is only
through the protection of the law that I am able to
enclose a field and to give myself up to its cultivation
with the sure, though distant, hope of harvest. But
it may be asked, What is it that serves as a basis to
law upon which to begin operations when it adopts
objects which under the name of property it promises
to protect? Have not men in a primitive state a
natural expectation of enjoying certain things — an
expectation drawn from sources anterior to law?
Tes. There have been from the beginning, and there
always will be, circumstances in which a man may
secure himself, by his own means, in the enjoyment
of certain things. But the catalogue of these cases
is very limited. The savage who has killed a deer
may hope to keep it for himself so long as his cave is
undiscovered, so long as he watches to defend it, and
is stronger than his rivals; but that is all. How
miserable and precarious is such a possession! If
we suppose the least agreement among savages to
respect the acquisitions of each other, we see the
introduction of a principle to which no name can be
given but that of law. A feeble and momentary
expectation may result from time to time from cir-
cumstances purely physical; but a strong and perma-
nent expectation can result only from law. That
which in the natural state was an almost invisible

88 SOCIAL JUSTXCK

thready in the social state becomes a cable. Property
and law are born together and die together. Before
laws were made there was no property ; take away
laws and property ceases." 1

Here we have luminously and exactly set forth the
part played by law in the creation and maintenance
of property. The only criticism that may be made
is that it is not made sufficiently plain that the whole
idea or meaning of property is not summed up in its
legal character. Private ownership of property may
exist, not only as a moral right, but as a concrete fact,
without the support of law. 8

The theories of Rousseau as to the nature of prop-

1 Op. cit., Chapter VHI.

9 There is thus considerable force in the criticism which M. Charles
Comte makes when he says: " According to Montesquieu and Bentham
it is civil laws which give rise to property, and it is clear that both
mean by civil laws the decrees of public power which determine the
possessions which each one may enjoy and dispose of. It would, per-
haps, be more correct to say that it is property which gave birth to
civil laws ; for it is hard to see what need a tribe of savages, among 1
whom no property of any kind existed, could have for laws or of a
government. The guarantee of property is undoubtedly one of the
most essential elements of which it is composed ; it increases the value
of property, and assumes its duration. A great mistake would be made,
however, were it supposed that this guarantee were all there is of
property; the civil law furnishes the guarantee of property, but it
is human industry which gives birth to property. Public authority
is needed only to protect it and assure to all the power of enjoying
and disposing of it. . . . Were it true that property exists or is created
by decrees and the protection of public authority, it would follow that
the men who, in any country, were invested with the power of legisla-
tion, would also be invested with the power of creating property by
their decrees, and could, without committing injury to the right of
property, despoil some persons of it to the advantage of others. They
would have no other rules to follow than their own desires or car
prices." Quoted in Lalor's Cyclopaedia of Political Science; article,
"Property."

PROPERTY 89

erty and its justification are contained in the follow-
ing extracts from his Social Contract " What man
loses by the social contract [i.e. by the establishment of
political government] ," he says, " is his natural liberty
and an unlimited right to anything that tempts him
which he can obtain ; what he gains is civil liberty and
the ownership of all that he possesses. Not to be
deceived in these compensations, we must distin-
guish the natural liberty, which has no limits but
the strength of the individual, from civil liberty,
which is limited by the general will ; and possession,
which is only the effect of the force or right of the
first occupant, from the ownership which is founded
upon a positive right. Each member of the com-
munity gives himself to it, as soon as it is formed,
such as he then is, himself and all his force of
which his property forms a part. . . . What is
singular in this alienation is that, so far from de-
spoiling the individual, in accepting his property, the
community assures him of its legitimate possession,
it changes usurpation into a veritable right, and en-
joyment into ownership. The owners now being
considered as depositories of the public property,
their rights being respected by all members of the
state and maintained by all their force against the
stranger, — by a transfer which is advantageous to
the public and more so to themselves, — they have, so
to speak, acquired all that they have given. ... It
might happen, too, that men began to unite together
before possessing anything, and that, taking posses-
sion of a territory sufficient for all, they enjoy it

90 SOCIAL JU8TICE

in common, or divide it among themselves either
equally or in proportions established by the sover-
eign. In whatever way the acquisition be made,
the right which each individual has over his own
property is subordinated to the right which the
community has over all; without this there would
be neither solidity in the social tie, nor real force
in the exercise of sovereignty." 1

Here it is quite evident that in founding property
upon law Rousseau takes practically the same posi-
tion that Bentham, Hobbes, and Montesquieu have
assumed; namely, that it is only as an institution
made secure by the protection of the political au-
thority that the foundation of property is to be
found in the law. In fact, as Rousseau goes on to
maintain, the ethical right to. ownership is to be
found in occupation, when begun and maintained
according to the principles which he lays down.
Of this we have already spoken.

The general beneficence of the law in guaranteeing
to owners of property a secure possession and quiet
enjoyment is so obvious that few there are who
explicitly deny it. Pure anarchists must, however,
be considered as taking this position ; for with the
abolition of all political control law disappears, and
with it, of course, all legal property rights. In tak-
ing this position, the anarchists are not necessarily
led to advocate the destruction of private property
rights in an ethical sense. Their contention only
goes to the length of maintaining that the ooer-

1 Op. of., Book I, Chapters VIII and IX.

PROPERTY 91

cive authority of the law is not needed for their
maintenance. This, they hold, may be secured by
mutual agreement and cooperation.

Besides the anarchists, there have been some
writers who have taken the extreme position of
holding that, so wholly are the laws which protect
private ownership in the interest of the property
owning classes, it would be better for the property-
less classes did no legal property rights whatever
exist. The argument is that only those derive
benefit from the law's protection who own property,
and that thus the propertyless not only secure no
benefit, but are prevented by the law from exercising
those natural rights of acquiring riches by occupation
or force which they would have in a non-civic state.
Thus Rousseau says in the same chapter from which
we have quoted above, "I will finish this chapter
and this book by a statement, which must serve as
a basis of all social systems ; it is that, instead of
destroying natural equality, the fundamental com-
pact substitutes, on the contrary, a moral legitimate
equality for that which nature may have given of
physical inequality among men; and while they
may be unequal in strength or genius, they become
equal by agreement and right." But he adds in a
note, " Under bad governments this equality is only
apparent and illusory ; it serves only to maintain the
poor in misery and the rich in his usurpation. In fact
laws are always useful to those who possess, and inju-
rious to those who have nothing, from which it follows
that the social state is advantageous to man only when

92 SOCIAL JUSTICE

he has some property, and that no one has too much."
Thus also Adam Smith, in his Wealth of Nations, says,
" Civil government, so far as it is instituted for the
security of property, is in reality instituted for the
defence of the rich against the poor, or of those who
have some property against those who have none at
all." 1

If we are to understand, as indeed it would seem
we must understand, that Rousseau and Smith held
that it is disadvantageous to the propertyless that
any legal property rights whatever should be recog-
nized, an answer is easily made. This has been
done by Bentham in one of the few passages where
he departs from his usual dryness and prolixity of
style, and rises to fervor and actual eloquence.
" But perhaps," he says, " [it may be alleged that]
the laws of property are good for those who have
property, and oppressive to those who have none.
The poor man, perhaps, is more miserable than he
would be without laws." To which Bentham replies,
" The laws, in creating property, have created
riches only in relation to poverty. Poverty is not
the work of laws; it is the primitive condition of
the human race. The man who subsists only from
day to day is precisely the man of nature — the

1 Op, cit n Book V, Chapter L Rousseau, in his essay on the Origin of
Inequality, says : " The first man who enclosed a piece of land and said,
* This is mine,' and found people simple enough to believe him, was the
real founder of the bourgeoisie. How much misery, crime, war, etc.,
would have been prevented if another man had had the courage to
pull out the posts and had said, * Take care, cheat 1 Tou are lost the
moment you forget that the fruits of the earth belong to all and the
earth itself to no one 1 "

PROPERTY 93

savage. The poor man, in civilized society, obtains
nothing, I admit, except by painful labor ; but, in the
natural state, can he obtain anything except by the
sweat of his brow ? Has not the chase its fatigues,
fishing its dangers, and war its uncertainties ? And if
man seems to love this adventurous life ; if he has an
instinct warm for this kind of perils ; if the savage
enjoys with delight an idleness so dearly bought ; must
we then conclude that he is happier than our cultiva-
tors? No. Their labor is more uniform, but their
reward is more sure ; the woman's lot is far more agree-
able ; childhood and old age have more resources ; the
species multiplies in a proportion a thousand times
greater, — and that alone suffices to show on which
side is the superiority of happiness. Thus the
laws, in creating riches, are the benefactors of
those who remain in the poverty of nature. All
participate more or less in the pleasures, the advan-
tages, and the resources of civilized society. The
industry and the labor of the poor place them among
the candidates of fortune. And have they not the
pleasure of acquisition? Does not hope mix with
their labors? Is the security which the law gives
of no importance to them? It is astonishing that
a writer so judicious as Beccaria has interposed, in
a work dictated by the soundest philosophy, a doubt
subversive of social order. ' The right of property/
he says, 'is a terrible right, which perhaps is not
necessary/ Tyrannical and sanguinary laws have
been founded upon that right ; it has been frightfully
abused; but the right itself presents only ideas of

94 SOCIAL JUSTICE

pleasure, abundance, and security. It is that right
which has vanquished the natural aversion to labor ;
which has given to man the empire of the earth;
which has brought to an end the migratory life of
nations ; which has produced the love of country, and
a regard for posterity. Men universally desire to enjoy
speedily, to enjoy without labor. It is that desire
which is terrible; since it arms all who have not
against all who have. The law which restrains that
desire is the noblest triumph of humanity over itself." *

In effect, then, Bentham makes the following
points: First, that, though it is true that the law
renders it possible for a wealthy class to exist side
by side with a propertyless class, the latter class
does not owe its poverty to the law. Without the
law all would be poor. Thus, while those who by
talent or good fortune have become wealthy owe
ultimately their riches to the law, this is not at the
expense of the poor, who at least have no less than
they would have had in a state of nature. Secondly,
that not only is property law not prejudicial to the
interests of the propertyless man, but it is positively
beneficial to him, in that it offers to him at least an
opportunity for gaining wealth in all its forms.

It will, perhaps, be worth while to follow out
more fully this idea. There can be no doubt but
that the existence of legal property has been enor-
mously influential in stimulating men's productive ac-
tivities, and that around property rights have centred
many of the elements that have been most influential

1 Principles of the Civil Code, Chapter IX.

PROPERTY 95

in promoting morality, good government, and civili-
zation. Nor can it be questioned that, in the ad-
vance of society to higher economic and ethical
planes, the propertyless man, the ordinary wage
laborer, has, in general, had his condition improved.
It is a question, to be sure, whether, in this develop-
ment, he has shared to an equal degree with the well-
to-do. Some have held that, relatively, the rich
have derived the greater benefit. However this may
be, the evidence is conclusive that the laboring man
has profited absolutely. If, then, this be so, the
conclusion follows that in so far as legal property
rights have been influential in promoting economic
progress or general civilization, and in so far as the
laboring man has profited absolutely by such prog-
ress, to that extent he must have gained by the fact
that property has existed as a legal institution.

It is to be observed, now, that the argument, as
thus far carried on, establishes only the point that,
to the propertied and propertyless man alike, it is an
advantage that property rights should be recognized
and protected. There has not been established any
fact as to the extent to which private property rights
should exist. Nor has there been established any-
thing to show that the propertyless man has secured
in the past all the advantages which legitimately
should have been his. It has not been demonstrated
that, in return for the protection which the law gives,
the property owning classes have done, or been com-
pelled to do, all that they should have done for the
promotion of the welfare of the social whole.

96 SOCIAL JUSTICE

It is worthy of remark, however, that in most of
the civilized countries of to-day efforts are being made
to obtain from property owners services commensurate
with the special advantages they enjoy. Not only are
deliberate and far-reaching legislative attempts being
made to place upon the wealthy classes increasing
social and fiscal obligations, but strenuous endeavors
are being put forth to assist in every possible way
propertyless men in their attempts to gain a
share in the world's wealth. The imposition of
heavy poor rates and progressive income and
inheritance taxes, the enactment of a host of laws
for the protection of labor, the establishment of
all sorts of public and charitable institutions, the
provision of manual training schools, etc., illus-
trate this. In some cases the measures adopted
have been of so radical a character as to amount to
practical spoliations of the rich. Professor Foxwell,
indeed, after referring to the paragraph which we
have quoted above from Adam Smith, adds in a note :
" This view of government explains the position of
the anarchists, so far as anarchism is intelligible at
all. But it is clearly inappropriate to modern con-
ditions. It might as truly be said of some demo-
cratic governments of to-day that they are a
machinery by which those who have less property
may compensate themselves at the expense of those
who have more. The tables have been turned."

This we think, however, is an extreme statement.
Even in those countries where legislation has been
of the most radical character, the laws adopted have

PROPERTY 97

been, after all, but individual measures, and have left
undisturbed the great body of property law, the
specific object of which is the maintenance of pri-
vate property rights in the strictest and most techni-
cal manner.

There is no one who would maintain that in any
civilized society all property should be owned and
controlled by private individuals. Even the most
extreme individualists or anarchists recognize the
necessity of having certain articles of value owned
in common, such, for instance, as the land upon
which the streets of a city are laid out. On the
other hand, there are none who assert that all forms
of wealth should be publicly owned. It is recog-
nized by all that at least certain articles of con-
sumption should belong to the individuals who are
to use or consume them. The communists carry
the idea of public property to its extreme, but even
they recognize this. The socialists of course recog-
nize in many ways the rightfulness, as well as the
economic expediency, of private property. The
essential demand of the socialist goes, in fact, no
farther than to ask that all "instruments for pro-
duction" be commonly owned and operated. All
other forms of wealth they admit should be pri-
vately owned.

If, then, it is not a question whether all property
should be public or all private, the problem narrows
itself to the determination of what property shall
be public and what private. In this inquiry the
two considerations of fundamental importance are

98 SOCIAL JUSTICE

productive efficiency and distributive justice. There
is no essential reason why these two considerations
should ever antagonize one another. Other things
being equal, that form of ownership which leads to
the greatest economic productivity is most desirable,
because, aside from more material reasons, the greater
the wealth of a community, the greater is the oppor-
tunity offered for those forms of individual culture
through which alone the higher planes of ethical
development are attainable. Also, when we remem-
ber that the individual should seek his own good
in the good of the whole, and, therefore, that he
can demand as his just due only that which wiH
enable him to realize his own good as thus inter-
preted, it becomes plain that the demands of dis-
tributive justice can seldom conflict with those of
economic expediency. Were society perfectly organ-
ized and administered, a conflict would never arise.
In determining whether a given article should be
public or private property, it would seem logical that
the decision should rest upon the particular consid-
erations involved, that is to say, upon the peculiar
nature of the article in question, the uses to which
it may be put, etc. Where it is decided that pri-
vate ownership may exist, the conditions should be
made: first, that private owners shall not be per-
mitted to put their property to uses clearly detri-
mental to the public welfare, or to the legal rights
of others ; and, secondly, that the law, in fixing upon
the facts which are to be taken as evidencing the
existence of a property right, shall, so far as pos-

PROPERTY 99

sible, select facts which create in the owners a moral
right to protection. Do modern systems of juris-
prudence, so far as they relate to the creation and
definition of private property rights, conform to
these two conditions?

As regards the rights of usage and enjoyment,
the law fully recognizes that no property rights are
of such an absolute character as to permit the in-
dividual to put his property to a use that will
directly interfere with the rights of others, or work
detriment to the social welfare. As Holland says:
"The right of ownership is . . . unlimited only in
comparison with other rights over objects. In
accordance with the maxim ' sic utere tuo ut alienum
non Icedas,' it must always be enjoyed in such a way
as not to interfere with the rights of others, and is
therefore defined in the French code as ' le droit de
jouir et disposer des choses de la mantere la plus
absolute, pourvu qvHon rien fosse pas un usage pro-
kM par les his ou par les rlglements.' " *

If, then, as we see, the law recognizes no right in
the owner to put his property to a use that will
interfere with the rights of others, or be detrimental
to the interests of the community as a whole, it is
clear that, as an abstract conception, the legal con-
ception of private property rights cannot be objected
to. All that the social reformer can ask as to this is,
therefore, that the definition and manner of exercise
of property rights shall be so stated as to avoid such
evils as can be demonstrated to result from property

1 Elements of Jurisprudence, Chapter XI,

f\j,^ .'O

100 SOCIAL JUSTICE

rights as now defined. They cannot properly claim
that property rights should no longer be maintained.

We turn now to the question whether, from the
standpoint of justice, our law bases its recognition of
property rights upon a proper selection of facts.
This inquiry embraces two points: first, as to the
conditions that are accepted by the law as creating
the right of property ; and, secondly, as to the pur-
pose sought by the law in extending its protection
over the right, when recognized.

We find it frequently stated that the law in its
creation of property rights recognizes the validity of
the occupation theory. This theory we have already
shown to be invalid. It therefore becomes important
to determine whether our law, or indeed any modern
law, stands committed to it.

In a general way the law does recognize a property
right in him who first takes possession of a res nuUius.
The rights which, in the eyes of the law, belong to
the first possessor are, however, no other in nature
than those which attach to the actual holder of a
piece of property belonging to another. Not only
in the Roman, but in the Common Law, he who has
actual possession of an article of value has a legal
right to hold and enjoy it as against all the world,
except him who is able, by a judicial proceeding, to
establish a better title to it. And this is so even
though no claim of actual ownership be set up by the
possessor. As against the true owner, he has, of
course, no right; but even in such case the owner
can enter into possession only after a judicial deter-

PBOPBBTY 101

mination of his right. The difference between the
rights of ownership and those of possession, then,
consist only in this, that the owner's right to posses-
sion is good as against every one; the possessor's
right is good as against every one but the owner.
Thus it is that if an owner be able to establish his
right to the possession of a given piece of property,
he is as fully secured against the interference of
others as he would be were he to establish his right
to absolute proprietorship. " One who is out of pos-
session," says Pollock, " and has a rightful claim to
possess, has need of the law's assistance. When he
has recovered possession, he has not any need to ask
the law to do any more for him. . . . Hence it is com-
monly sufficient for an owner to rely on his rights to
possession; and, as it is commonly easier to prove
the less right than the greater, ... it is often pref-
erable to claim possession only. Nay more, it is
possible for ownership to be sufficiently guarded for
all practical purposes by a system of remedies which
omits, or has come to omit, any such solemn and
express form of asserting ownership as that to which
the Romans emphatically gave the name Vindication.
In the Common Law this has actually happened. For
some centuries all practical remedies for the recovery
of both land and goods have been possessory, and
property has meant for judicial purposes, the right,
or the best right to possess." *

Returning now to the assertion that the right
recognized in the first occupant or possessor of a res

1 First Book of Jurisprudence, p. 170.

102 SOCIAL JUSTICE

nullius is no other in essence than that recognized in
the actual holder of a piece of property owned by
some one else, we see that, while it is only a right
to possession that is recognized, it, in fact, becomes
the equivalent of ownership, in that, ex hypothesis
there is no owner in existence to set up a better
title.

But why is possession protected by the law, when
the possessor is not also the owner? Kant and Hegel
would say, because freedom of the will is to be pro-
tected at all hazards, and that by taking possession
of a thing a man has brought it within the sphere of
his will. This will, when so manifested, they hold,
may legitimately be interfered with by no other par-
ticular will, but only by the universal will as voiced
and executed by the organs of the State. 1 "This
right following from the fact of possession," says
Kant, " does not consist in the fact that because the
possessor has the presumption of being a rightful
man, it is unnecessary for him to bring forward proof
that he possesses a thing rightfully. ... It is because
it accords with the postulate of the practical reason
that every one is invested with the faculty of having
as his own any external object upon which he has
exerted his will, and, consequently, all actual pos-
session is a state whose rightfulness is established
upon that postulate by an anterior act of will." 9

Others have said that possession should be pro-
tected because there is a presumption that the pos-

1 Cf . Holmes, The Common Law, Lecture VI.
1 Philosophy of Law, translated by Hastie, p. 70.

PBOPBRTY 103

sessor is also the owner. 1 But this is in accordance
neither with legal theory nor with legal history.
The real and sole reason is, as its historical connec-
tion with the frith shows, that the public peace may
be preserved.* Should forcible ouster of an occupant
or possessor be permitted either to a stranger or to
the owner, no imagination is required to picture the
disorder in which the community would be continu-
ally involved. The law must, if it would secure
peace at all, guarantee to the occupiers of land, and
the possessors of personal property, protection against
all interference, except such as is founded upon a
judicial process in which it has been determined that
another has a higher right to the possession of the
goods in question.

In all this the sole idea is, as said, the preservation
of the peace. The law accepts the distribution of
wealth as it is brought about by chance, by competi-
tion, or by other economic or social forces, and seeks
to render secure to each one the possession and
enjoyment of the portions, if any, of the economic
goods which he has obtained. Thus by preventing
disorder and by punishing spoliations, the law seeks
both to open to all the opportunity for gaining
property, and to furnish that stimulus to industry
which is derived from a knowledge that a quiet
possession and undisturbed enjoyment in the fruits of
one's labor are guaranteed.

When it is once decided that certain rights of

1 E.g. Ihering, Ueber den Grund det Besitzesschutzes.
9 See Jenks, Law and Politics in the Middle Ages.

104 SOCIAL JUSTICE

ownership shall exist, either because they are just
or because they are economically desirable, the law
steps in and declares that the State, by its power, will
guarantee such rights against violation. In so doing
the law adds no new element either to the justificar
tion for private property or to the proof of its eco-
nomic expediency. It is implicitly recognized that
these two facts have already been established when
the law comes upon the scene. Least of all does
the law attempt the task of providing that each
shall gain that proportion of wealth to which, upon
abstract principles of justice, he is entitled.

This characteristic of the law has been especially
commented upon by Menger. "If we look at the
economic life by which men are surrounded," he
says, " we find its main purport to be that men labor
for the satisfaction of their wants, that all labor aims
at a return, every want at a satisfaction. Labor and
the produce of labor, wants and satisfactions, are the
facts in the two sequences in which the economic life
of mankind fulfils itself. The ideal law of property
from the economic point of view would therefore be
attained in a system which secured to every laborer
the whole produce of his labor, and to every want as
complete satisfaction as the means at disposal would
allow. Our actual law of property, which rests
almost entirely on traditional political conditions,
does not even attempt the attainment of these eco-
nomic ends. ... By assigning the existing objects
of wealth, and especially the instruments of produc-
tion, to individuals to use at their pleasure, our law

PROPERTY 105

of property invests such individuals with an ascen-
dancy by virtue of which, without any labor of their
own, they draw an unearned income which they can
apply to the satisfaction of their wants. . . . Neither
does our actual law of property . . . set itself the
task of providing for every want a satisfaction pro-
portionate to the available means. Our codes of
private law do not contain a single clause which
assigns to the individual even such goods and ser-
vices as are indispensable to the maintenance of his
existence. So far as our private law is concerned,
the situation is somewhat brutally but very rightly
expressed by Malthus in a passage which by its very
frankness has attained a certain fame. 'A man who
is born into a world already possessed, if he cannot
get a subsistence from his parents on whom he has a
just demand, and if the society does not want his
labor, has no claim or right to the smallest portion
of food, and, in fact, has no business to be where he
is. At Nature's mighty feast there is no vacant
cover for him. She tells him to be gone, and will
quickly execute her own orders.' What Malthus
says here of food applies to the satisfaction of all
other wants." 1

We are, then, confronted with this fact, that in
our present property law no attempt is made to
secure a just distribution of wealth. There cannot,

1 Right to the Whole Produce of Labor, p. 3. The quotation from
Malthus is from his Essay on the Principle of Population, 2d edition
(1803), p. 531

106 SOCIAL JUSTICE

however, be any question that, if it were possible
to obtain distributive justice by legal means, the
effort should be made. The socialists claim that
this can be done, or at least that a distribution of
wealth more just than that which competition now
secures can be obtained. Every socialistic scheme
necessarily has two sides — the productive and the
distributive. Upon the productive side, the claim
is that the nationalization of instruments of produc-
tion will increase their economic efficiency. Whether
this be true, or if true, whether the administrative
difficulties involved can be successfully met, we
must leave to the/ economists and publicists to an-
swer. Upon the distributive side, the socialist's claim
is that, if all products become the property of the
State, it will be possible to apportion to the workers
the respective shares to which they are entitled.
It is with this claim that we are here especially
concerned.

In order to make their claim good, it is necessary
for the socialists to fix upon a principle of desert
that is both more just than that which is now real-
ized in the economic world, and one that is possible
of at least an approximate enforcement by the State.
Our next task is, then, to determine whether the
various principles of distributive justice that have
been put forward by socialistic schools fulfil these
conditions.

CHAPTER V

CANONS OP DISTRIBUTIVE JUSTICE — THE LABOR
THEORY

In this and following chapters we propose to
examine the validity of the various 'canons of dis-
tributive justice which have been put forward from
time to tjpie by socialistic writers as of absolute
validity. V The first and most important of these iiT 1
that which declares that economic goods should be
distributed wholly to tljose who have produced
them by their labor.

Suggestions and chance statements of the labor^
theory can be found in various writings from the
earliest times, but the idea is first found fully set
forth and argued by Locke in his Two Treatises of
Government

The part played by the economic element in
Locke's political scheme is a very prominent one.
In fact, he conceives the need for some protection
for their property to have been the chief motive
which has urged men to form political unions. Indi-
vidual liberty is itself treated by him as a form of
property, namely, that right of ownership which a
man properly has over himself. Thus Locke is able
to say, u The great and chief end therefore of men
uniting into commonwealths, and putting themselves

107

108 SOCIAL JUSTICE

under government, is the preservation of their prop-
erty." 1

The right of ownership which one has over him-
self Locke, of course, derives directly from natural
law. Property in objective things, however, Locke
founds wholly upon labor. " God," he says, " who
hath given the world to men in common, hath also
given them reason to make use of it to the best
advantage of life and convenience. The earth and
all that is therein is given to men for the support
and comfort of their being. And though all the
fruits it naturally produces, and beasts it feeds, be-
long to men in common, as they are produced by
the spontaneous hand of nature, and nobody has
originally a private dominion exclusive of the rest
of mankind, in any of them, as they are thus in
their natural state, yet being given for the use of
men, there must of necessity be a means to appropri-
ate them some way or other before they can be of
any use, or at all beneficial, to any particular men.
The fruit or venison which nourishes the wild Indian
who knows no enclosure, and is still a tenant in
common, must be his, and so his — i.e. a part of
him — that another can no longer have any right to
it before it can do him any good for the support of
his life."

"Though the earth and all inferior creatures be
common to all men, yet every man has a ' property *
in his own ' person.' This nobody has any right to
but himself. The ' labor ' of his body and the ' work 9

1 Op. cit., Book II, Chapter IX, § 124

CANONS OP DISTRIBUTIVE JUSTICE 109

of his hands, we may say, are properly his. What-
soever, then, he removes out of the state that nature
hath provided and left it in, he hath mixed his labor
with it, and joined to it something that is his own,
and thereby makes it his property. It being by
him removed from the common state nature placed
it in, it hath by his labor something annexed to
it that excludes the common right of other men.
For this * labor ' being the unquestionable property
of the laborer, no man but he can have a right
to what that is once joined to, at least where
there is enough, and as good left in common for
others." *

The qualification expressed in the last clause is to
be especially noted, inasmuch as it would seem at
once to deprive his theory of all value, except as
applied to a people in a primitive state of civilization,
and inhabiting a comparatively thinly settled terri-
tory. This limitation of the right of acquisition by
labor by the rights of others, he renders still more
definite in the following. "It will, perhaps, be
objected to this," he says, "that if gathering the
acorns of the fruits of the earth, etc., makes a right
to them, then any one may engross as much as he
will. To which I answer, Not so. The same law
of nature that does by this means give us property,
does also bound that property too. ... As much
as any one can make use of to any advantage of life
before it spoils, so much he may by his labor fix a
property in. Whatever is beyond this is more than

1 Op. cfc, Book II, Chapter V, §§ 26, 27.

110 SOCIAL JUSTICE

his share, and belongs to others. Nothing was made
by God for men to spoil or destroy." *

The same principles are also applied by Locke to
the acquisition of property in land. He says : " But
the chief matter of property being now, not the fruits
of the earth and the beasts that subsist on it, but the
earth itself, as that which takes in and carries all
the rest ; I think it is plain that property in that,
too, is acquired as the forme?. As much land as a
man tills, plants, improves, cultivates, and can use
the product of, so much is his property. . . . Nor
was this appropriation of any parcel of land, by
improving it, any prejudice to any other man, since
there was enough and as good left, and more than
the yet unprovided could use."*

It would seem from these quotations that Locke is
himself aware that his theory gives only an explana-
tion of how property may justly arise in a com-
munity where the gifts of nature are so abundant
that the appropriation of some of them by par*
ticular individuals will not limit the corresponding
rights of others. How, then, does he justify the
acquisition of property in more civilized times, when
the above conditions no longer prevail? He does
this by saying that, by agreeing to the use of money,
men have consented to the introduction of an element
which renders it both possible and an object for men
to obtain for themselves accumulations of wealth far
greater than what they otherwise would be entitled

1 Op. cit., Book II, Chapter V, § 31.
» Idem, Book II, Chapter V, §§ 32, 83.

CANONS OF DISTRIBUTIVE JUSTICE 111

to acquire. Before the introduction of money, says
Locke, men had no object in storing up consid-
erable amounts of the produce, for if they did so,
much of it would spoil before they could use it. But
since the introduction of this token of wealth, they
are enabled to exchange that which they do not
want for their own use for money, and in this form
preserve and continually add to it. 1

Locke then goes on to show, in an excellent eco-
nomic argument, the extent to which human labor
enters into the production of even those things which,
at first sight, appear to be most largely the spontane-
ous products of nature. " If we will rightly estimate
things as they come to our use," he says, " and cast
up the several expenses about them, — what in them
is purely owing to nature and what to labor, — we
shall find that in most of them ninety-nine-hun-
dredths are wholly to be put on the account of
labor. M *

lM This," he says, "is certain, that in the beginning, before the
desire of having more than men needed had altered the intrinsic
value of things, which depends only on their usefulness to the life of
man, or had agreed that a little piece of yellow metal, which would
keep without wasting or decay, should be worth a great piece of flesh
or a whole heap of corn, though men had a right to appropriate by
their labor, each one to himself, as much of the things of nature as
he could use, yet this could not be much, nor to the prejudice of
others, where the same plenty was still left, to those who would use
the same industry." Op. cit. 9 Book II, Chapter V, § 37.

5 " It is labor, then, which puts the greatest part of value upon land,
without which it would scarcely be worth anything ; it is to that we owe
the greatest part of all its useful products, for all that the straw, bran,
bread, of that acre of wheat is more worth than the products of an
acre of as good land which lies waste, is all the effect of labor. For it
is not barely the ploughman's pains, the reaper's and thresher's toil, and

112 SOCIAL JUSTICE

The conclusion drawn from this by Locke is,
that so small is the relative part played by land in
production, there would never have come the time
when the amount of unappropriated ground would
be so limited that the taking into possession of par-
ticular pieces of it by individuals would appreciably
diminish the opportunity of others to do likewise,
had the use of money not been introduced. " This
I dare affirm," he says, " that the same rule of pro-
priety, viz. that every man should have as much
as he could make use of, would still hold in the
world, without straitening anybody, since there is
enough land in the world to suffice double the num-
ber of inhabitants, had not the invention of money,
and the tacit agreement of men to put a value on it,
introduced (by consent) larger possessions and a right
to them." 1

To sum up, then, Locke founds the right of prop-
erty, not, as did Grotius and his school, upon the

the baker's sweat, is to be counted in the bread we eat; the labor
of those who broke the oxen, who digged and wrought the iron and
stones, who felled and framed the timber employed about the plough,
mill, oven, or any other utensils, which are a vast number, requisite
to this corn, from its sowing to its being made bread, must all be
charged on the account of labor, and received as an effect of that;
nature and the earth furnished only the almost worthless materials
as in themselves. It would be a strange catalogue of things that
industry provided and made use of about every loaf of bread before
it came to our use, if we could trace them ; iron, wood, leather, bark,
timber, stone, bricks, coals, lime, cloth, dyeing-drugs, pitch, tar, masts,
ropes, and all the material used in the ships that brought any of the
commodities made use of by any of the workmen, to any part of the
work, all which it would be impossible, at least too long, to reckon
up." Op. cit., Book II, Chapter V, § 43.
i/rfem, Book II, Chapter V, § 36.

CANONS OP DISTRIBUTIVE JUSTICE 113

mere fact of first occupancy, but upon the labor implied
in the taking of possession or in the production of
the object owned. This principle he holds applicable
to modern as well as to primitive times, and avoids
the objection that since comparatively early times
the stock of unappropriated natural wealth has not
been sufficient to enable all freely to obtain an oppor-
tunity for employing their labor, by alleging that by
the introduction of money men have tacitly agreed
to this condition of affairs.

That the use of money, whatever its influence, can
be conceived to rest upon a tacit agreement of such
a character as morally to bind propertyless men to an
acquiescence in their poverty, is of course so extraor-
dinary as to need no refutation. The real reason
why, in a developed society, little or no natural
wealth is left unappropriated is because, with the
advance of civilization, the wants of mankind have
enormously increased, and, for the satisfaction of
these wants it is necessary to utilize all the advan-
tages and materials spontaneously offered by nature.
In this economic development, a standard of value
and medium of exchange, such as metallic money
affords, has been an important factor. Money has
been one of the instruments by the aid of which
industrial advance has been facilitated, but it has
been by no means the controlling cause. When the
matter is analyzed, it is found that it has been the
general advance in civilized life, and not money, that
has rendered impossible a continuance of that primi-
tive condition in which the unappropriated bounties

114 SOCIAL JUSTICE

of nature are so abundant that the taking of posses-
sion by one individual of a portion of them does not
appreciably limit the enjoyment of a similar privilege
by all others.

The doctrines of the Physiocrats, so far as they
relate to the rightful basis of property, were similar
to Locke's. Labor was accepted as the sole efficient
agent. Underneath both their economic and their
political theories lay the general doctrine of u natural
rights." Society was conceived as founded upon a
contract, government was looked upon as a neces-
sary evil, and all men were declared possessed of a
number of original, inalienable rights which could
never rightly be abridged. Among these rights
were included the right to labor and the right to
its proceeds. Arguing from the right to labor,
the Physiocrats demanded that, so far as possible,
industry should be left free from all governmental
restraints. Arguing from the right to the proceeds of
labor, they asked that property rights should be held
sacred, and that the producer should not be exploited
by excessive taxes and forced labor. The doctrines
of the Physiocrats in respect to private property in
land we shall discuss in another place.

Adam Smith is often quoted, and with ample
justification, as holding the labor doctrine. In one
place he says, " The property which every man has
in his own labor, as it is the original foundation of
all other property, so it is the most sacred and invio-
late." * Again, he says, " As soon as the land of any

1 Wealth of Nations, Book I, Chapter X.

CANONS OF DISTRIBUTIVE JUSTICE 115

country has all become private property, the land-
lords, like all other men, love to reap where they
have never sowed, and demand a rent even for its
natural produce." 1 And elsewhere: "The produce
of labor constitutes the natural recompense or wages
of labor. In that original state of things which pre-
cedes both the appropriation of land and the accumu-
lation of stock, the whole produce of labor belongs to
the laborer. He has neither landlord nor master to
share with him. Had this state continued, the wages
of laborers would have augmented with all those
improvements of its productive powers, to which the
division of labor gives occasion." * It is to be noted,
however, that Smith is concerned rather with the
origin of wealth than with the foundation of prop-
erty, that is, with wealth as appropriated. Thus
Smith's remarks, as quoted above, are incidental
merely, and not made in the course of an inquiry
into the justification of property. He nowhere
attempts to maintain that an actual effort should be
made to secure by law a distribution of wealth upon
the basis of labor performed, and, in fact, so far
as we are aware, he nowhere in his work attempts a
careful treatment of the ethical basis of private
ownership. 8

Though Locke and the Physiocrats accepted and
developed the theory that through labor alone is it

1 Wealth of Nations, Book I, Chapter VI.

1 Idem, Book I, Chapter VIII.

1 See Bohm-Bawerk, Capital and Interest, Book VI, where it is
pointed out that Smith in other places takes positions that are con-
tradictory to the labor theory.

116 SOCIAL JU8TICE

possible for the individual to obtain a just title to
ownership of economic goods, they made no attempt
to show that the legally protected rights in private
property, even as to land or other instruments of
production, which then existed were in violation of
this principle. This honor, if honor it be, was re-
served for later English writers, and it was from
them that the German socialists Marx and Rodbertus
borrowed, without acknowledgment, their theories.
This plagiarism is abundantly shown by Menger.
As Professor Foxwell says, Menger ^conclusively
proves that all the fundamental ideas of modern
revolutionary socialism, and especially the Marxian
socialism, can be definitely traced to English sources.
It was a handful of English writers, brought up in
the classic country of capitalistic production, and
reflecting upon the terrible wreckage of the early
pre-regulation period, who laid down the lines of
thought upon which socialistic criticism has ever
since proceeded. ... Of this English school, the
chief names are undoubtedly those of Godwin, Hall,
Thompson, Gray, Hodgkin, and Bray." l

Godwin fairly deserves to rank as the founder of
the modern philosophy of socialism, and moreover,

1 Monger, op. cit^ xxviL The principal works of these writers,
and the dates of their publication, are as follows : William Godwin,
PoliticalJustice, 1793; Charles Hall, The Effect* of Civilization on the
People in European States, 1805; William Thompson, An Inquiry into
the Principles of the Distribution of Wealth most conducive to Human
Happiness, 1824; J. Gray, A Lecture on Human Happiness, 1825;
Thomas Hodgkin, Labor defended against the Claims of Capital, 1825 ;
J. F. Bray, Labor's Wrongs and Labor's Remedy, or the Age of Might
and the Age of Right, 1839.

CANONS OF DISTRIBUTIVE JUSTICE 117

paradoxical as it may seem, of anarchism as well.
For, though he first stated the ethical tenets of the
socialist, he believed it possible to form a social
order in which the realization of these principles
could be secured without the use of coercion. As
regards the labor theory of property, however, with
which we are now specially concerned, his system
cannot be said to play a part ; for Godwin advocated
the principle that the distribution of goods should
be to those most in need of them, rather than to
those who have produced them by their labor.

To Charles Hall belongs the honor of being the
first to advocate a distribution of wealth strictly
according to the labor theory. The practical meas-
ures which he recommended for the approximate
attainment of this end were: (1) the abolishment
of rights of primogeniture; (2) the imposition of
heavy taxes upon all luxuries ; (3) State ownership
of land, and the allotment of tracts to families pro-
portionate in size to the number of members con-
tained in them.

With the work of Thompson, An Inquiry into the
Principles of the Distribution of Wealth most conr
ducive to Human Happiness, published in 1824, we
find socialistic doctrines fairly launched in their
modern form. The central point argued is that,
by the payment of interest and rent to capitalists
and landowners, the right of the laborer to the
whole produce of his labor is violated.

In order to understand this last doctrine, and to
see why it was now for the first time advanced, it

118 SOCIAL JUSTICE

will be necessary to stop for a moment to consider
the changes in industrial life which the few preced-
ing years had brought about, and also to explain the
influence which Ricardo's restatement of the labor
theory, together with his "Iron Law" of wages,
had upon the development of socialistic thought.
Before the factory system arose, when manufacturing
was largely carried on by hand at home or in small
workshops, the part played by capital in production
was comparatively small. Under these conditions
the ethical demand that the laborer should be re-
warded according to the product of his industry
seemed to be, in the main, satisfactorily realized.
The most apparent violations of this right were in
the form of arbitrary and excessive taxes, or vexar
tious restrictions placed by the law upon the indi-
vidual's right to engage in whatsoever occupation
he chose, or, when chosen, to carry it on in what-
soever manner he should see fit. So long as the
fiscal demands of governments were not excessive,
nor the interference with the freedom of labor ex-
treme, the citizen could see that in the sacrifices
made, and the limitations submitted to, he received
a substantial equivalent. But when these levies
became exorbitant, or the restrictions too severe,
this was no longer the case, and the laborer seemed,
in such instances, to be deprived of a portion of the
goods to which his individual industry and ability
seemed fairly to entitle him. Hence we find the
first practical movements for reform taking the
direction of a demand for the abolition of oppressive

CANONS OF DISTRIBUTIVE JUSTICE 119

taxes, and the removal of the restrictions tinder
which the laborers were obliged to carry on their
trades. This, for example, was the character of the
reforms demanded by the Physiocratic school, which,
as we have seen, accepted unreservedly the labor
theory of property.

Before this time, and, indeed, dating from the
ancient days, there had been a general condem-
nation of the exaction of interest, or, as it was
called, usury, for the use of loaned money. This
reprobation of interest was based, however, not
upon a reasoned theory that its payment was
a violation of the right of the laborer to the
whole produce of his labor, but upon a wholly
absurd idea as to the part played by money in the
economy of a people. After the spread of Chris-
tianity, the deprecation of interest was founded upon
various declarations of the Scriptures. 1 To the
ordinary mediaeval mind these declarations were, in
theory if not in practice, sufficient to place the mat-
ter beyond all doubt. The schoolmen, however, in
their attempts to demonstrate the rationality of all
scripturally revealed commands of God, essayed the
statement of the reasons why the demand for the
payment of interest is unjust. But in their ex-
planations they got no farther than the assertions
that money is by nature barren (an argument first
put forward by Aristotle), that it cannot be " con-
sumed," and that the payment of interest is, in

1 Leviticus xxv. 86, 37 ; Deuteronomy xxiii. 19, 26; Psalms xr. 5;
Ezekiel xviii. 8, 17 ; St Luke vi. 35.

120 SOCIAL JUSTICE

reality, a payment for time, which is a commodity
free to all. This last argument was the one espe-
cially relied upon by Aquinas. Not until the six-
teenth century was the rightfulness of interest-taking
defended upon rational grounds. Calvin was the
first theologian, and Dumoulin (Carolus Molinaeus)
the first jurist to take this position and ably argue it.
Grotius took a middle position, justifying interest by
natural law, but declaring it forbidden by the re-
vealed law. Salmasius in a number of works, pub-
lished between 1638 and 1640, justified the taking
of interest, as did Filmer in his Mcestio QuocUibetica
(1653), and Locke in his Some Considerations of Con-
sequences of lowering the Interest and raising the
Value of Money (1691). Through these works, and
others less important, the doctrine of the wrongful-
ness of interest had been quite effectually undermined
when, in 1789, Bentham wrote his famous Defence of
Usury. In France of this time, however, the doc-
trine still found defenders in the Physiocrat Mirabeau
(in his Philosophic Rurale) and the jurist Pothier.
The arguments of Pothier were effectively answered
by Turgot in his Memoire sur le prU cC argent.
"We may look on Turgors controversy with Po-
thier," says Bohm-Bawerk, "as the closing act of the
three hundred years' war which jurisprudence and
political economy had waged against the canon doc-
trine of interest. After Turgot the doctrine disap-
peared from the sphere of political economy. Within
the sphere of theology it dragged out a kind of life
for some twenty years longer, till finally, in our

CANONS OF DISTRIBUTIVE JUSTICE 121

century, this also ended. When the Roman Peni-
tentiary pronounced the taking of interest to be al-
lowable, even without any peculiar title, the Church
itself had confirmed the defeat of its erstwhile
doctrine." *

With the introduction of steam as a motive force,
conditions of manufacture and of industrial life, out-
side of agricultural pursuits, fishing, and the like, were
revolutionized. Production in large factories took
the place of production by hand in the home or small
workshop. Division of labor was carried to an extent
hitherto unthought of, and enormous investments of
capital were required. This change meant, not only
that it became henceforth impossible for the laborer
to distinguish in the completed product the actual
results of his own handiwork, but that, before the
product could be distributed in the form of wages,
large parts of it had to be subtracted in the shape
of insurance, interest on capital invested, salaries
for overseers and superintendents, taxes, operating
expenses (other than wages), repairs and deteriora-
tion of plant, and, finally, profits to the entrepreneur.
All this of course meant the apparent return to the
ordinary laborer of but a small portion of the prod-
uct created by his industry, and the result was that,
to those who did not fully comprehend the conditions

1 Capital and Interest, p. 57. For a fuller history of theories of
usury see this work and also the following : Lecky, History of Ration-
alism in Europe, Vol. II ; White, Warfare of Science and Theology, Vol.
II ; Franck, Philosophic du droit penal, p. 122 et seq. ; Yale Review,
February, 1894, article by H. C. Lea entitled "The Ecclesiastical
Treatment of Usury," and Ashley, English Economic History, Vol. L

122 80CIAL JUSTICE

and demands of production as thus carried on, the
laborer seemed to be exploited of much of the return to
which, under the labor theory, he was justly entitled.

Most modern socialistic doctrines start from this
ground. Thus we may quote as typical the argu-
ment of Rodbertus, the socialist who, more than
any other, devoted himself to the task of elaborat-
ing the theoretical bases of the system he held.
"As there can be no income unless it is produced
by labor," says Rodbertus, " rent rests on two indis-
pensable conditions. First, there can be no rent if
labor does not produce more than the amount which
is just necessary to the laborers to secure the continu-
ance of their labor, for it is impossible that without
such a surplus any one, without himself laboring, can
equally receive an income. Secondly, there could be
no rent if arrangements did not exist which deprive
the laborers of this surplus, either wholly or in part,
and give it to others who do not themselves labor, for
in the nature of things the laborers are always the
first to come into possession of their product. That
labor yields such a surplus, rests on economic grounds
that increase the productivity of labor. That this
surplus is entirely, or in part, withdrawn from the
laborers and given to others rests on grounds of
positive law; and, as law has always united itself
with force, it only effects this withdrawal by con-
tinual compulsion.

" The form which this compulsion usually took was
slavery, the origin of which is contemporaneous with
that of agriculture and landed property. The laborers

CANONS OF DISTRIBUTIVE JUSTICE 128

who produced such a surplus in their labor product
were slaves, and the master to whom the laborers
belonged, and to whom consequently the prod-
uct also belonged, gave the slaves only so much
as was necessary for the continuance of their
labor, and kept the remainder or surplus to himself.
If all the land, and at the same time all the capital
of a country, have passed into private property, then
landed property and property in capital exert a simi-
lar compulsion even over freedmen or free laborers.
For, first, the result will be the same as in slavery,
that the product will not belong to the laborers, but
to the masters of land and capital; secondly, the
laborers who possess nothing, in face of the masters
possessing land and capital, will be glad to receive a
part only of the product of their own labor with which
to support themselves in life ; that is to say, again, to
enable them to continue their labor. Thus, although
the contract of laborer and employer has taken the
place of slavery, the contract is only formally and not
actually free, and hunger makes a good substitute for
the whip. What was formally called food is now
called wage/' 1

Thus, affirming that under modern capitalistic
conditions an exploitation of the laboring classes is
everywhere and continually taking place, the social-
ists, as a rule, demand that society be so organized
that the working-man shall be guaranteed the entire
product of his industry.

1 Zur Beleucktung der Sozialen Frage, p. 33. Quoted by Bohm-
Bawerk in his Capital and Interest, English translation, p. 881.

124 SOCIAL JUSTICE

From an historical point of view, the starting-point
of the exploitation view was that part of the system
of Ricardo wherein is found a restatement of Smith's
laboi^value theory. Neither Smith nor Ricardo had
drawn the practical conclusions which the acceptance
of such a theory necessarily involved. But, with the
declaration once made, and accepted, that labor is the
source of all value, " it was," as Bohm-Bawerk says,
" inevitable that, sooner or later, people would begin
to ask why the worker should not receive the whole
value of which his labor was the cause. And when-
ever that question was put it was impossible that any
other answer could be given on this reading of the
theory of value, than that one class of society, the
dronelike capitalists, appropriates to itself a part of
the value of the product which the other class, the
workers, alone produces. . . . Thus Adam Smith
and Ricardo may be regarded as the involuntary
godfathers of the exploitation theory. They are,
indeed, treated as such by its followers. They, and
almost they alone, are mentioned by even the most
pronounced socialists with that respect which is paid
to the discoverers of the * true ' law of value, and the
only reproach made them is that they did not logi-
cally follow out their own principles." *

Ricardo was also responsible in another way for
the development of modern socialism. This was due
to the so-called "Iron Law of Wages" which he
formulated, and which immediately obtained a wide
acceptance. This law, stated in 1817 in his Prin-

1 Capital and Interest, p. 316.

CANONS OF DISTRIBUTIVE JUSTICE 125

ciples of Political Economy and Taxation, was to
the effect that, under the joint influences of the eco-
nomic law of diminishing returns and the Malthu-
sian law of population, wages necessarily tend to
remain at the minimum amount that will enable
laborers, according to their lowest standards of com-
fort, to live and continue their species.

The immediate deduction, as seen in the writings
of Thompson and the modern socialists, was that, if
this be the inevitable tendency in a society organized
on the individualistic capitalistic basis, there must be
something radically wrong in that basis. Starting,
then, with the assumption that labor furnishes the
sole right to property, they believed that this wrong
consisted in the exploitation of the laborers by pay-
ments of enormous sums to capitalists and land-
owners.

The right to the whole produce of labor played no
part in the French social philosophy of the eighteenth
century ; for, though such writers as Mestier, Morelly,
and Mably vigorously attacked private property, they
did so because of the vices — pride and selfishness
especially — to which they believed it gave rise.
Nor did the theory have a place in the theories of
Baboeuf, St. Simon, or Fourier. 1 In the writings of
Proudhon, however, we find the labor theory fully
set forth. But Proudhon does not found upon labor so

1 See Monger, op. cit. t p. 62-73. Some of the followers of St.
Simon did, however, accept the labor theory. See Bdhm-Bawerk,
Capital and Interest, p. 818 et $eq. f for a statement of the views of
Sismondi, who, in his Nouveaux Principe* d' Economic Politique, accepted
the labor theory of value, but drew from it no socialistic doctrines.

126 SOCIAL JUSTICE

much a right of absolute ownership as a right to an
undisturbed possession, so long as such possession does
not interfere with the equal rights of others. Prop-
erty, or legal ownership, whether by the individual
or society, he declares to be theft. Private property,
he says, renders capitalism possible, and, by the pay-
ments which the capitalist demands, labor is robbed.
Private property is therefore robbery. " The primary
cause of commercial and industrial stagnation is inter-
est on capital, that interest which the ancients with
one accord branded with the name of usury wherever
it was paid for the use of money, but which they did
not dare to condemn in the forms of house-rent,
farm-rent, or profit, as if the nature of the thing
could ever warrant a charge for the lending; that
is robbery." *

But the evils of private property, he declares, are
not to be corrected by rendering all property public.
" Communism is inequality, but not as property is.
Property is the exploitation of the weak by the
strong. Communism is the exploitation of the strong
by the weak. In property, inequality of conditions
is the result of force, under whatever name it is dis-
guised; physical and mental force; force of events,
chance, fortunes; forces of accumulated property,
etc. In communism, inequality springs from plac-
ing mediocrity on a level with excellence. This
damaging equation is repellent to the conscience,
and causes merit to complain ; for, although it may
be the duty of the strong to aid the weak, they pre-

1 What u Propertyt translated by Tucker, p. 103.

CANONS OF DISTRIBUTIVE JUSTICE 127

fer to do it out of generosity — they never will
endure a comparison. Give them equal opportunities
of labor and equal wages, but never allow their jeal-
ousy to be weakened by mutual suspicion of unfaith-
fulness in the performance of the common task.
Communism is oppression and slavery. Man is ever
willing to obey the law of duty, to serve his country,
and oblige his friends ; but he wishes to labor when
he pleases, where he pleases, and as much as he
pleases. He wishes to dispose of his own time, to
be governed only by necessity, to choose his own
friendships, his recreation, and his discipline, to act
from judgment, not by command. . . .

" Thus communism violates the sovereignty of the
conscience and equality: the first, by restricting spon-
taneity of mind and of heart, and freedom of thought
and action ; the second, by placing labor and laziness,
skill and stupidity, and even vice and virtue on an
equality in point of comfort. For the rest, if prop-
erty is impossible on account of the desire to accumu-
late, communism would soon become so through the
desire to shirk." x " If property is a natural, absolute,
imprescriptible, and unalienable right, why," he asks,
" in all ages, has there been so much speculation as
to its origin? . . . The origin of a natural right.
Good God ! whoever inquired into the origin of the
rights of liberty, security, or equality ? They exist
by the same right that we exist ; they are born with
us, live and die with us. With property it is very
different indeed. By law, property can exist without

1 Op. tit., p. 261.

128 SOCIAL JUSTICE

a proprietor, like a quality without a subject. It
exists for the human being who as yet is not, and for
the octogenarian who is no more. And yet, in spite
of these wonderful prerogatives which savor of the
eternal and the infinite, they have never found the
origin of property." " Occupation," he says, " will
not support a title to ownership ; " for, " Not only
does occupation lead to equality, it prevents property.
For since every man, from the fact of his existence,
has the right of occupation, and in order to live must
have material for cultivation on which he must labor;
and since, on the other hand, the number of occupants
varies continually with the births and deaths, — it
follows that the quantity of material which each
laborer may claim varies with the number of occu-
pants ; consequently, that occupation is always sub-
ordinate to population. Finally, that, inasmuch as
possession, in right, can never remain fixed, it is
impossible, in fact, that it can ever become property/*
" Every occupant is, then, necessarily a possessor
or usufructuary, a function which excludes proprietor-
ship. Now this is the right of the usufructuary ; he
is responsible for the thing intrusted to him; he
must use it in conformity with general utility, with
a view to its preservation and development ; he has
no power to transform it, to diminish it, or to change
its nature; he cannot so divide the usufruct that
another shall perform the labor while he receives the
product. In a word, the usufructuary is, under the
supervision of society, submitted to the condition of
labor and the law of equality. Thus is annihilated

CANONS OF DISTRIBUTIVE JUSTICE 129

the Roman definition of property — the right of use
and abuse — an immortality born of violence, the most
monstrous pretension that the civil laws ever sanc-
tioned. Man receives his usufruct from the hands
of society, which alone is a permanent possessor.
The individual passes away, society is deathless." 1
In fact, Proudhon holds that the theory of occupa-
tion, if rigidly applied, would render impossible the
possession by any one of definite, permanent property
rights. He says : " All have an equal right of occu-
pancy. The amount occupied being measured, not
by will, but by the movable conditions of space and
number, property cannot exist." *

Labor will not support a valid right to absolute
ownership, except as to consumable goods, for it in-
volves the right of occupancy. Labor can furnish,
therefore, only a qualified right to possession. This
Proudhon brings out when speaking of land. "I
maintain," he says, " that the possessor is paid for
his trouble and industry in his doubled crop, but that
he acquires no right to the land. ' Let the laborer
have the fruits of his labor/ Very good ; but I do
not understand that property in products carries with
it property in raw material. ... If he has made
improvements in the soil, he has the possessor's right
of preference. Never, under any circumstances, can

1 Op. cit. y p. 82. Proudhou's mistranslation of the Roman formula,
ju$ utendi et abutendi, is here apparent As we have already seen, the
law of private property explicitly denies the right of the owner to
use his property in any way that will interfere with the legal rights of
others, or endanger the safety or morality of society.

•Op. eiLj p. 83.

180 SOCIAL JUSTICE

he be allowed to claim a property title to the soil
which he cultivates, on the ground of his skill as a
cultivator."

Among the German socialists, Bodbertus stands
conspicuous not only as having developed with ful-
ness and lucidity what Biihm-Bawerk terms the "ex-
ploitation theory" of rent and interest, but as having
attempted more earnestly than his fellow-thinkers
the constructive socialistic task of determining the
practical means by which the laborer's right to the
whole produce of his industry may be guaranteed to
him, and at the same time the general welfare of
society secured. Bodbertus was not an extreme
socialist ii} that he did not, at least for the present,
advocate the abolishment of private property either
in land or capital. The two great evils of our pres-
ent economic life, he says, are r pauperism, and com-
mercial and financial crises, and these, in turn, are
largely the result of the exploitation of the laborer
which is constantly going on. Therefore, he be-
lieves, if the laborer can be secured a reward more
nearly proportionate to his work, not only will pov-
erty be practically abolished, but, by rendering the
purchasing power of the people more nearly com-
mensurate with the amount of the economic goods
produced, gluts in the market will be prevented, and
the crises which they cause made impossible. The
practical plan which Bodbertus puts forward as ade-
quate to bring all this about is that normal work-
labor and time-labor days shall be declared by the
State for each form of industry, and for each estab-

CANONS OF DISTRIBUTIVE JUSTICE 131

lishment within such industries, and that the laborer
shall be paid for his work in paper money based
upon such standard. Concerning the practical diffi-
culties involved in the determination and application
of such a standard we shall speak presently.

Of even greater general influence among the
socialists than Rodbertus, has been Karl Marx ; and
his chief work, Das Kapitcti, published in 1867, has
often been spoken of as the Bible of the social dem-
ocrats. " And it deserves the name/' says Professor
Ely. "It defends their doctrines with acuteness
of understanding and profundity of learning, and
certainly ranks among the ablest politico-economic
treatises ever written/' 1 Nevertheless, inasmuch as
Marx's theories are founded almost wholly upon
those of Rodbertus and Ricardo, it will not be
necessary to review them at length. It will be suffi-
cient to say that he reaffirms the exploitation of
labor under present conditions. This, he says, is
due to the fact that the working-man, being deprived
of "all things necessary for the realizing of his
'labor power,' " is obliged to offer that labor power
upon the market for sale, and to take for it that
minimum of reward which competition with his
fellow-workmen brings about.

Criticism of the Labor Theory. — The criticism of
the labor theory may, as in the case of any theory of
distributive justice, take two forms. First, we may
examine its validity as an abstract canon of desert ;
secondly, we may consider whether, even if accepted

1 French and German Socialism, p. 137.

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SOCIAL JUSTICE /j f^^v^jCjL^

>v as ethically valid, it is one that can by any possi-
. \? bility be approximately realized in industrial society.
We shall first inquire as to its abstract justice.

In examining the labor theory as an absolute
canon of distributive desert, it is to be remembered
that we are attempting to discover, not whether
labor is one of a number of elements to be con-
sidered, but whether it is, as is alleged, the sole
principle in accordance with which all forms of
wealth should be distributed. When approached
from this standpoint, the theory is found fatally
defective in a number of ways.

In the first place, it can be shown that its funda-
mental premise, that labor is the source of all wealth,
ijt false^ ?/This of itself, of course, deprives of all
validity the canon that labor should be the sole
standard of distributive desert.

It is of course true that the socialists are not so
foolish as to deny the assistance which the laborer
derives from capital an^land. Their contention
is,. JaewFtfefi" that private individuals should not be
permitted by the law to exact a charge for this
assistance. The question is thus reduced to one
regarding the rightfulness of interest and rent. 1

1 " Socialists do not recognize three productive factors, land, capital,
and labor ; they acknowledge only a single productive power, Labor.
Only human labor, they say, is creative, it alone can really produce.
Of course, to be effective, it requires land and capital, but these hold
a subordinate position to labor, and act merely as auxiliary means of
production. But in the existing order of things, landowners and
capitalists — as having exclusive possession of the material auxiliary
means of production — are placed in a position to force the laborer
to give up to them a great part of the product of labor, as it is only

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CANONS OF DISTRIBUTIVE JUSTICE 138

Now this exact question has recently been subjected
to a most careful examination by a number of
writers who constitute what is called the " Austrian
School" of economists. 1 So thoroughly have they
done this work, that nothing more need be said upon
the subject. As Smart says of Bohm-Bawerk's criti-
cism, " The crushing confutation of the labor-value
theory is work that will not require to be done
twice ; " and as Bohm-Bawerk himself, and with just
right, says, " In future any one who thinks he can
maintain this law will first of all be obliged to
supply what his predecessors have omitted — a proof
that can be taken seriously. Not quotations from
authorities, not protesting and dogmatizing phrases,
but a proof that earnestly and conscientiously goes
into the essence of the matter." * Considering, then,
the finality of this work, we would almost need an
excuse for giving it in other than the exact lan-
guage of its authors. Limitation of space, however,
makes this impossible. Fortunately, however, in
the introductions which he has furnished to the

on this condition that they will lend their property and allow labor to
use it. . . . When the owners refuse to grant to labor the use of these
auxiliaries, they place obstacles in the way of labor, as Rodbertus
sayB; when they do grant this use, they do nothing more than merely
remove the obstruction they have themselves created; they simply
withdraw their own fiat. It is always the laborer who must produce.
Land and capital are only conditions, not causes of production. All
return is exclusively labor return." — Wieser, Natural Value, English
translation by Malloch, pp. 78-79.

1 See especially Bohm-Bawerk, Capital and Interest, translated by
Smart, and Positive Theory of Capital, translated by Smart, and Wieser,
Natural Value, translated by Malloch.

*Op.ciL y p 389.

184 80CIAL JU8TICE

English translations of the works of Bohm-Bawerk
and Wieser, Professor Smart has set forth within
a comparatively few pages and with absolute
clearness the nature of the inquiries attempted,
the general character of the arguments used,
and the essential conclusions reached. In the
main, therefore, we shall follow Professor Smart's
language.

The problem is thus stated: "The essential fear
tures here, as regards our problem, are that over a
year's time the products manufactured are sold at a
price which not only covers the value of raw mate-
rials, reimburses the various wages of manual and
intellectual labor, and replaces the fixed capital
as worn out, but leaves over that amount of value
which is divided out among the capitalist share-
holders as interest. In normal capitalistic pro-
duction, that is to say, not only is the value of
capital consumed in the production process replaced,
but a surplus of value appears. It has not always
been perceived by economists that this surplus
value is the essential phenomenon of what we
call interest, — that interest on capital consists of
this very surplus value and nothing else, — but,
wherever it is perceived, the question almost sug-
gests itself, What does this surplus value repre-
sent ? Is it merely a surplus, or is it of the nature
of a wage? In other words, Is it something obtained
either by chance or force, and corresponding to no
service rendered by anybody or anything; or is it
something connected with capital or the capitalist

CANONS OF DISTRIBUTIVE JUSTICE 136

that, economically speaking, deserves a return or a
wage?" 1

" If we appeal to the common consciousness to say
what it is that capital does, or forbears to do, that it
should receive interest, we shall probably get two
answers. One will be that the owner of capital
contributes a valuable element to production; the
other that he abstains from using his wealth in his
own immediate consumption." The acceptance of
the first of these views leads to a group of theories
called by Bohm-Bawerk " Productivity Theories."
The acceptance of the second leads to what he calls
" Abstinence Theories." But neither of these views
is correct. The productivity theory is invalid for
the following reasons: The usual treatment of the
interest problem by those who profess the produc-
tivity theory " is to coordinate capital with the other
factors of production, land and labor, and assume
that interest is the payment for the services of
capital, as wage is for the services of labor. ... If,
however, we demand an answer to what we have
formulated as the true problem of interest, we shall
make the discovery that the productivity theory has
not even put the problem before itself. The amount
of truth in the theory is that capital is a most power-
ful factor in the production of wealth, and that
capital, accordingly, is highly valued. But to say
that capital is ' productive ' does not explain interest,
for capital would still be productive although it pro-
duced no interest; e.g. if it increased the supply of

1 Introduction to Bohm-Bawerk's Capital and Interest, p. viiL

136 SOCIAL JUSTICE

commodities the value of which fell in inverse ratio,
or if its products were, both as regards quantity and
value, greater than the products of unassisted labor.
The theory, that is to say, explains why the manu-
facturer has to pay a high price for raw materials,
for the factory buildings, and for machinery — the
concrete forms of capital generally. But it does not
explain why he is able to sell the manufactured
commodity, which is simply these materials and
machines transformed by labor into products, at a
higher price than the capital expended. It may
explain why a machine doing the work of two
laborers is valued at £100, but it does not explain
why capital of the value of £100 now, should rise to
the value of £105 twelve months hence; in other
words, why capital employed in production regularly
increases to a value greater than itself. . . . The
important circumstance forgotten in this theory is
that the productiveness of concrete capital is already
discounted in its price. ... To ascribe interest to
the productive power of capital is to make a double
charge for natural forces — in the price and in the
interest. ... It cannot be too often reiterated that
the theory which explains interest must explain sur-
plus value — not a surplus of products which may
obtain value and may not; not a surplus of value
over the amount of value produced by labor unassisted
by capital ; but a surplus of value in the product of
capital over the value of the capital consumed in
producing it."

"Value cannot come from production. Neither

CAN0N8 OF DISTBIBUnVB JTTBTICB 137

capital nor labor can produce it. What labor does is
to produce a quantity of commodities, and what capi-
tal, cooperating with labor, usually does is to increase
that quantity. These commodities, under certain
known conditions, will usually possess value, though
this value is little proportioned to their amount;
indeed, it is often in inverse ratio. But the value
does not arise in the production, nor is it propor-
tional to the efforts and sacrifices of that production.
The causal relation runs exactly the opposite way.
To put it in terms of Menger's law, the means of
production do not account for nor measure the value
of products ; on the contrary, the value of products
determines and measures the value of means of pro-
duction. Value only arises in the relation between
human wants and human satisfactions, and if men
do not ' value ' commodities when made, all the labor
and capital expended in the making cannot confer on
them the value of the smallest coin. But if neither
capital nor labor can create value, how can it be
maintained that capital employed in production not
only reproduces its own value, but produces a value
greater than itself? " l

The abstinence theory is also invalid for the fol-
lowing reasons: "The strength of the abstinence
theory is that the facts it rests on really give the
explanation how capital comes to be in primitive con-
ditions and in new conditions. The first efforts to
accumulate capital must be attended by sacrifice,
a temporary sacrifice, of course, to secure a perma-

1 Capital and Interest, Introduction, p. xL

138 SOCIAL JUSTICE

nent gain, but, in the first instance at least, a mate-
rial sacrifice. . . . But to account for the origin of
capital by abstinence from consumptive use is one
thing; to account for interest is another. In all pro-
duction labor sacrifices life and capital sacrifices
immediate enjoyment. It seems natural to say that
one part of the product pays wage and another pays
interest as compensation for the respective sacrifices.
But labor is not paid because it makes a sacrifice, but
because it makes products which obtain value from
human wants; and capital does not deserve to be
paid because it makes sacrifices, — which is a matter
of no concern to any one but the capitalist, — but
because of some useful effect produced by its cooper-
ation. Thus we come back to the old question, What
sacrifice does capital render that the abstinence which
preserves and accumulates it should get a perpetual
payment? And if, as we saw, productivity cannot
account for interest, no more can abstinence." *

The true reason why interest is justifiable, and one
that effectually answers the exploitation theory, is the
following : " When we lend capital, whether it be to
the nation or to individuals, the interest we get is the
difference in popular estimation and valuation be-
tween a present and a future good. If we lend to
direct production, the reason we get interest is not
that our capital is reproducing itself and more. The
explanation of this reproduction is to be found in the
work of those who employ the capital, both manual
and intellectual workers. We get interest simply

1 Op. tit., p. xv.

CANONS OP DISTRIBUTIVE JUSTICE 139

because we prefer a remote to a present result. It
is not that by waiting we get more than we give ;
what we get at the year's end is no more than the
equivalent value of what we lent a year before.
Capital plus interest on the 31st of December is the
full equivalent of capital alone on 1st of January pre-
ceding. Interest, then, is in some sense what Aqui-
nas called it — a price asked for time. Not that any
one can get the monopoly of time, and not that time
itself has any magic power of producing value ; but
the preference by the capitalist of a future good to a
present one enables the worker to realize his labor in
undertakings that save labor and increase wealth.
But as capital takes no active role in production, but
is simply material on which and tools by which labor
works, the reward for working falls to the worker,
manual and intellectual; the reward for waiting to
the capitalist only. Economically speaking, as wage
is a fair bargain with labor, because labor can pro-
duce its own wage, so is interest a fair bargain with
the capitalist, because in waiting the capitalist merely
puts into figures the universal estimate made by men
between past and future goods, and the capitalist is
as blameless of robbery as the laborer." l

1 Op. ciu, p. xix. As a criticism to the above, however, we instinc-
tively ask why it is that we prefer a present to a future possession of
a given amount of capital. To this the natural answer is, that it is
because we are able to put that capital to some use. And thus one is
inclined to say that, after all, it is the " use " of capital which explains
its interest-producing quality. The answer to this has been satisfac-
torily given by Menger, but in an argument too long to be reproduced
here. It is sufficient to say, however, that he shows that the " value "
of goods comes from their power, when consumed, to satisfy

140 SOCIAL JUSTICE

To the foregoing argument it may be added, that
not only does capital play a part in the productive
process that justly entitles it to a return, but that
society itself enters as a factor equally efficient, if not
as direct ; and therefore that, even upon the labor
theory, before laborers can claim their return, it is
just that there should be subtracted from the whole
product not only the legitimate return to capital, but
that part which has been created, or at least rendered
possible of creation, by the existence of a social
order. Without social organization, without the
cooperation which it makes possible, without the
protection which the law affords, without all those
elements of civilized life which social life and polit-
ical order render possible, not only would labor be
far less productive than it now is, but the laborer
himself would be without a stimulus for his industry
beyond that afforded by the bare need for food and
clothing. Professor Ritchie, in commenting upon
Locke's description of the various forms of labor that
directly or indirectly are involved in the making of
such a simple thing as a loaf of bread, calls attention
to the fact that Locke has failed to mention this
important social factor. "The soldiers that guard
the country from invasion so that harvests can
be reaped," says Ritchie ; " the magistrates who are
a terror to evil-doers; all those who increase the
knowledge, quicken the intellect, and raise the char-
human wants, and that when capital is employed in production it ia
in fact consumed rather than simply used. Capital has therefore a
greater present than future value because it has a greater consumptive
value.

CANONS OP DISTRIBUTIVE JUSTICE 141

acter of a community, and so make complicated
industrial relations more possible between human
beings, — all these might claim a part in the mak-
ing even of a loaf of bread. That is to say, the loaf
is not merely the product of nature plus labor, but
of nature plus social labor, and this social labor is
not merely the aggregate of the labor of various
individuals, but it is the labor of individuals work-
ing in an organized society. It is not, therefore, the
individuals, as individuals, that have mixed their
labor with nature, but the individuals as members
of a society. Therefore, if we translate the facts
into Locke's phraseology, we must say that by the
law of nature, i.e. according to reason, apart from
any explicit or tacit consent of the individuals com-
posing the community, the loaf belongs to the society
as a whole, and not to this or that individual. . . .
We cannot, therefore, treat ' property* as a category
independent of society, except by a false abstrac-
tion." 1 It is, however, to be observed that, in a
socialistic state, this last-mentioned consideration
would not be of great importance, as, in theory at
least, under such a regime all would have the oppor-
tunity of sharing equally in the productivity of the
social factor.

Finally, it is to be observed, criticism may be
made of that original premise from which those who
have held the labor theory have derived the natural
right of the individual to the produce of his own
labor; namely, his right to himself. How, asks

1 Darwin and Hegel, chapter on " Locke's Theory of Property."

142 SOCIAL JUSTICE

Huxley, does a man come to a right to himself?
He did not create himself by his own efforts.
Rather, he owes his existence and what he is to
his mother who bore him, and bore with him, sup-
ported him during infancy, and educated him.
"The man's physical and mental tendencies and
capacities, dependent to a very large extent on
heredity, are certainly the gratuitous offering of
nature; if they belong to anybody, therefore, they
must belong to the whole of mankind, who must
be, so to speak, a kind of collective slaveowner,
all of each. So much of the man as depends on
the care taken of him in infancy and childhood is
the property of his mother, or of those who took her
place. Another smaller portion belongs to the peo-
ple who educated him. What remains is his own." 1

The argument that has gone before has been
absolutely destructive of the premise that, by the
payment of interest for the use of capital, the
laborer is, pro tanto, exploited. With the destruc-
tion of this premise necessarily falls to the ground
the conclusion that the entire produce of industry
should be divided among those actively engaged in
its production.

There is, however, still a possible ground for main-
taining that, even though the laborers be not entitled
to the whole produce, they are entitled to a share
strictly proportionate to the part played by labor
in production. Can this contention be maintained?
We do not think it can. For the most part there

1 "Natural and Political Rights," Collected Essays, Vol. I.

CANONS OF DISTRIBUTIVE JUSTICE 143

can be no doubt that economic expediency, as well
as justice, demands that reward should be propor-
tioned to work done, but this cannot be erected
into an absolute principle; and for the following
reasons: —

In the first place, the acceptance of such a theory
necessarily means that, in such an allotment of
shares, individual capacities for enjoyment, as well
as the intensity of individual needs, shall be wholly
disregarded. If, then, either of these factors be at
all relevant in the apportionment of goods, the labor
theory is fundamentally defective. That they are
relevant we shall see in the next chapter.

In the second place, it is obvious that what an
individual is able to produce by his labor largely
depends upon naturally given or inherited capac-
ities of mind and body. But the labor theory, if
rigorously applied, makes no distinction between
that efficiency which comes from naturally given
powers, and that which is due to industry and faith-
fulness, or to capacities that have been slowly
acquired by long and patient effort and serious self-
denial in the past. In a former chapter, where we
discussed the true relation between charity and jus-
tice, we came to the conclusion that there is upon
us individually, and upon society as a whole, the
moral obligation to assist to a higher level of
development and happiness those who, through no
fault of their own, are handicapped in the race
of life by physical or intellectual defects, or find
themselves plunged into an unfavorable and demor-

144 SOCIAL JUSTICE

alizing environment, from which, unassisted, they
are unable to extricate themselves. The labor
theory is therefore defective in that, as a principle
of justice, it does not include such an obligation.
Mill exposes this defect when he says, "The pro-
portioning of remuneration to work done is really
just only in so far as the more or less of the work
is a matter of choice; when it depends on natural
differences of strength or capacity, this principle of
remuneration is in itself an injustice; it is giving
to those who have — assigning to those who are
already most favored by nature." x

Finally, it is to be observed that a rigid applica-
tion of the labor theory involves the denial that
the young, the aged, the sick, or the incapacitated
from whatever source, have a right to support.
They do not work, therefore, according to the
labor theory, they cannot claim, except as a matter
of charity, the means absolutely necessary for sub-
sistence. It is true that socialists generally, while
accepting the labor theory, maintain also that every
one who does the best he can to support himself, but
fails, should be guaranteed at least a sufficiency for
existence. They do so illogically, however.

The objections which we have just stated demon-
strate conclusively that the labor theory of reward
cannot be accepted as an absolute principle of desert.
But, as we shall now show, even were it accepted as an
ethically valid rule, there would be insurmountable
difficulties in the way of its application.

1 Political Economy, Book II, Chapter I, § 4,

CANONS OP DISTRIBUTIVE JUSTICE 145

The acceptance of the labor theory necessarily
involves a socialistic organization of society. In
order to labor it is necessary for the laborer to own,
or at least to be in possession of, the raw materials
and the instruments of production. As we have
already seen, the simple fact of priority of occupa-
tion, or taking into possession, is not ethically
adequate to support a right to continued possession
or ownership. This means, then, that society or the
State must establish and enforce some positive prin-
ciple or principles in accordance with which the
implements of industry shall be open to the use of
all upon equal terms. But this is possible only where
the State itself owns and operates them. First of all,
then, the application of the labor theory involves all
those political difficulties attendant upon the estab-
lishment and maintenance of a socialistic State. But,
passing these by, let us see what economic difficulties
there would be to overcome, were such an organi-
zation of society successfully established and its
authority rigidly and satisfactorily maintained.

The economic problems that would have to be
solved would be these: —

First, the determination of the kinds of work to be
undertaken ; that is, the kinds of products to be created.

Secondly, the determination of the relative amounts
of the several products to be produced.

Thirdly, the just apportionment of the different
kinds of employments amongst individual workers.

Fourthly, and finally, the just distribution of prod-
ucts amongst the workers.

146 SOCIAL JUSTICE

Taking up these tasks in their order, we find that
each of them involves, so long at least as the labor
theory is adhered to, almost if not quite insuperable
difficulties.

First, then, as regards the necessity of determining
what commodities shall be produced. Products have a
value, not simply because they are the fruits of labor,
but because they are desired by individuals. Thus
the State cannot guarantee to its workers rewards
proportioned to labor performed, unless it has the
right to see to it that the labor be employed for the
creation of socially useful articles; that is, articles
for which there is a demand. It cannot, for example,
recognize the right to remuneration of the individual
who had labored, however arduously, in transporting
a pile of stones from one place to another, and then
in carrying them back to their original resting-place.
Nor is this all. Not only must any governing
authority which has the entire control of the pro-
ductive wealth of a community, and founds this
right to control upon an ethical basis, — not only
must such an authority see to it that only such goods
are produced as have a value for the satisfaction of
individual wants, but it must determine in each case
whether the want which creates the demand is one
that should be satisfied. No advocate of socialism
maintains that provision should be made for satisfy-
ing all wants, however vicious and demoralizing their
character. Moreover, the relative intensity of those
wants that are recognized as proper would have to be
considered. No argument is required to show that

CANONS OF DISTB1BUTIVB JUSTICE 147

the most necessitous needs should be the first satis-
fied, the less urgent next, and the least urgent last.
Thus, in determining the forms of industry to be
carried on, it is seen that the socialistic State would
have the threefold task of ascertaining the existence
of a want, of determining its propriety, and of esti-
mating its intensity as compared with other known
and approved desires.

Under present conditions the existence and inten-
sity of a want is made clear by the free demands of
individuals. The propriety of wants is passed upon
by the State only in exceptional cases, where,
under the exercise of its police powers, it steps in
either absolutely to prohibit the carrying on of such
occupations as are deemed inimical to public health
or morality, or to see that proper conditions of opera-
tion are observed in those trades that are permitted.
There is indeed no inherent reason why, under a
socialistic regime, the same conditions should not
prevail. As a matter of fact, however, were the
State itself in direct control of all production, the
temptation upon those in power to dictate generally
what commodities should be produced would inevita-
bly be very great. If not absolutely necessary, there
would therefore be an imminent danger that that
freedom of demand which now exists would be
seriously curtailed. That such a curtailment would
subject the individual to a most oppressive form of
control need not be pointed out. It is only by
satisfying his wants that man realizes his individual-
ity. If, therefore, man cannot develop himself, in

148 SOCIAL JUSTICE

the main at least, according to his own ideas, he is
subjected to a slavery of the worst kind.

From the socialistic problem of determining the
different kinds of products to be created, we turn
next to the task of ascertaining the relative amounts
to be produced. This task is necessary in order that
the supply shall be made at least approximately
equal to the demand. Under present conditions this
is brought about automatically by free competition.
When the demand for a given commodity, as com-
pared with its supply, is relatively strong, prices rise.
This attracts labor and capital into the field, and an
increased supply is the result. Where the supply is
greater than the demand, prices fall, and money and
labor are drawn away to more remunerative employ-
ments. Thus, at any given time, the exchange value
of commodities depends upon the market conditions
of supply and demand rather than the actual cost of
production.

In a socialistic regime which recognized this fact,
that is, which permitted individuals to be remuner-
ated for their work according to the value of their
products as fixed by the law of supply and demand,
and also allowed workers freely to pass from one
form of employment to another, the difficulty of
determining the respective amounts of commodities
to be produced would solve itself. But in a social-
istic State, such as we are now concerned with, which
declares that labor is the sole creator of value, and
that the laborer should be rewarded in exact propor-
tion to the amount of labor expended, such an adjust-

CANONS OF DISTBIBUTIVE JUSTICE 149

ment would be impossible. That is to say, under
such a regime, the laborer would be entitled to a
wage dependent wholly upon the amount and char-
acter of his work, and quite irrespective of the ex-
change value that his products might have. There
would, therefore, be no force of self-interest to attract
laborers into the fields of production where additional
workers might be needed to supply a demand, nor
induce them to leave those fields where an excess of
supply had made itself felt. It would therefore be
necessary for the governing authorities to resort to
compulsory assignments and reassignments of work
as demands for commodities or services varied. But,
when asked upon what principle or principles of jus-
tice such compulsory apportionments of labor could
be based, socialistic philosophy has made no satis-
factory answer.

The third problem which we have mentioned that
any socialistic State would have to solve, is the proper
apportionment of the different kinds of employment
amongst the individual workers. In this assignment
of tasks, reference must necessarily be had both to
economic efficiency and to the deserts of the indi-
viduals concerned. Both economic expediency and
distributive justice would seem to demand that work
should be apportioned according to ability possessed ;
namely, that to each individual should be assigned
>hat form of employment to which he is best suited
ay natural powers and aptitudes. Now, to secure
this result, the socialists claim that it will not be
necessary for the State to assume the impossible task

150 SOCIAL JUSTICE

of itself ascertaining the respective capacities of the
individual workers and of distributing employments
accordingly 9 but that the same result can be approx-
imately obtained by varying the rates of remunera-
tion offered for different forms of industry. That is
to say, that, though labor is taken as the standard of
measurement, it is not to be measured solely by the
element of time. Its agreeableness or disagreeableness
and its efficiency are to be taken into consideration.
Thus, by offering lower wages for the less arduous
forms of labor, the socialists claim that there will
be checked that rush for them which man's natural
indisposition for labor would occasion; while, by
placing an equal value on all products of the same
kind, men will be stimulated to seek that form of
employment where, by reason of natural ability, they
will be able to earn the most.

But this equality of valuation of the products in
the same industry could not justly be made absolute.
Fairness would demand that equality of valuation
should prevail only where equality of conditions
existed. Therefore valuation of products would
have to vary even in the same industry, according to
natural advantages or disadvantages, such as loca-
tion, character of machinery used, climate, etc.,
under which production is carried on. Thus there
would have to be fixed by the State a special rate of
wages for each productive establishment. Further-
more, these rates, once established, would have to be
changed from time to time, as the relative advan-
tages and disadvantages of the different establish-

CANONS OF DISTRIBUTIVE JUSTICE 151

ments varied. Thus in a newly opened coal-mine,
where coal is near the surface and easily mined, a
low rate relative to other mines would have to be
established. But as greater depths were reached, or
as the vein became less pure, the rate would have to
be raised.

The stupendousness of such a comparison and equal-
ization of rates as is called for by the above, when
applied to all the industries of a country and to each
of the several factories and institutions within each
of the industries, is sufficiently plain. Even were we
sanguine enough to believe that such a harmonizing
of labor rights were possible of performance by any
governing authority, however sapient and upright, it
cannot be believed that the correctness of such adjust-
ment could be made so plain to the ordinary mind
that no general discontent would be aroused. Rather,
judging human nature as we know it, — a nature
which Hobbes, we think, has said is so constituted
that the axioms of mathematics would be disputed,
were self-interests involved, — there would be an
almost certainty that each special institution, and each
industry generally, would believe itself discriminated
against.

Finally, having fulfilled all the foregoing conditions,
there would fall upon that socialistic State, which
should accept the labor standard, the task of appor-
tioning products among the workers strictly accord-
ing to the amount of effective work done; or, in
other words, of securing to them the full produce of
their labor. This, of course, would not mean the

152 SOCIAL JUSTICE

division among them of absolutely the entire amount
produced. There would necessarily have to be sub-
tracted enough to defray all public expenses, and to
provide the needed capital and machinery. But no
real objection could be made to this, for all would
participate in the benefits to be derived from the
expenditure of the funds so retained.

Now, in apportioning to each individual the produce
of his own work, the chief difficulty under modern
conditions of production would naturally be the deter-
mination of what that produce was. Where the
division of labor has been carried to any extent, the
cooperation of a number of workers, each performing
a different kind of work and assisted by different
kinds of machinery, is required. Evidently, in such
cases, the determination of just the part played by
each class of workers, and of each worker within each
class, would be a practical impossibility. Only very
rough approximations could be made. As regards
simply the maintaining of the proper proportions of
remuneration between the different workers, not even
that justice which is realized by the present wages
system could be hoped for. Under present condi-
tions, the necessity for economic efficiency compels
the employer to recognize and reward exceptional
industry or capacity. But with all industries under
governmental control, general scales of reward, which
could not, under ordinary conditions, be departed
from, would have to be established in order to pre-
vent unjust official discriminations. Thus both indi-
vidual desert and economic efficiency would have to

CANONS OF D1STBIBUTIVB JU8TICB 153

be, to this extent at least, sacrificed. Industry
and efficiency would have recognition, but they
would have it as judged by the performances of
groups of workers, and not, except in special cases,
as estimated by the achievements of individuals.
Thus, if a worker were but one in a thousand, he
would receive but one-thousandth of the increased
product due to any special industry or capacity that
he might display.

The hopelessness of being able, under modern forms
of production, to discover the actual contribution of
the individual worker to the completed product has
necessarily been recognized by socialists. They have
therefore been forced to erect an abstract standard
by which to estimate the labor performance of each
worker. In general this standard has been made to
take the form of a unit representing the amount of
product that a normal day's work of normal efficiency
can produce in a given industry. By this unit the
efficiency of all other labor is to be measured. But,
in order to make this measurement fair, it is neces-
sary, as we have pointed out a few pages back, that
employments should be graded according to agree-
ableness or disagreeableness, and that each factory,
mine, or other establishment of production should
have a special rate.

Rodbertus, as we have said, has, perhaps, made the
most serious attempt to outline a plan for realizing
in practice a distribution of products according to the
labor theory. It is to be observed, however, that
Rodbertus greatly simplifies the problem by regard-

154 SOCIAL JUSTICE

ing all goods as the product of manual labor. Marx
and socialists generally, however, recognize that dis-
tinctions should be made, not only as between em-
ployments of varying degrees of pleasantness, but as
between manual and purely intellectual labors. This
is of course absolutely necessary in order to save the
socialistic school from an obvious absurdity. At the
same time it is a clear departure from the pure labor
theory. This departure is usually disguised under
the form of an assertion that an hour's work of one
form of labor, such, for example, as painting or
teaching, shall be taken as equal, say, to ten or
twenty hours of normal manual labor. Now, were
such a difference between the respective valuations
of an hour's labor in each case based upon the idea
that a proportionate difference in degree of effort,
or inconvenience, or suffering is involved, there
might be ground for maintaining that the labor
theory had not been abandoned. But, where this
is not the basis of the distinction, and where, in
fact, the higher reward is made to go to the labor
involving no more effort, and often far less incon-
venience or suffering, some standard other than labor
is implied. Bohm-Bawerk, in criticising Marx's posi-
tion upon this point, says: "The naivete of this
theoretical juggle is almost stupefying. That a day's
labor of a sculptor may be considered equal to five
days' labor of a miner in many respects — for instance
in money valuation — there can be no doubt. But
that twelve hours' labor of a sculptor actually are
sixty hours' common labor no one will maintain. . . .

CANONS OF DISTRIBUTIVE JUSTICE 155

Men may invent what fiction they please; there is
here an exception to the rule asserted that the ex-
change value of goods is regulated by the amount of
human labor incorporated in them. Suppose that a
railway generally graduates its tariff, not according
to the distances travelled by persons or goods, but, as
regards one part of the line in which the working
expenses are particularly heavy, arranges that one
mile shall count as two, can it be maintained that
the length of distances is really the exclusive prin-
ciple in fixing the railway tariff ? Certainly not ; by
a fiction it is assumed to be so, but in truth the
application of that principle is limited by another
consideration — the character of the distances." l

1 Capital and Interest, p. 384.

CHAPTER VI

THE LABOR THEORY AS APPLIED TO PROPERTY IN

LAND

We turn now to the bearing of the labor theory
upon the justice or injustice of private ownership of
land. A number of those who have accepted the
labor theory have drawn the conclusion that all
valuable objects not the result of human labor should
be considered as free gifts of nature or of nature's
Creator, and, as such, intended, not for the special
advantage of any particular individuals, but for the
welfare of mankind at large. It is in this category
that land has been placed. Land, it has been held,
is, by its very nature, sui generis, and, as such,
private ownership of it must be justified, if justified
at all, by reasons different from those applicable to
other forms of property.

Locke's peculiar justification of property in land,
under the labor theory, we have already mentioned.
The Physiocrats justified land ownership on the
ground that it is necessary in order that there may
be secured the right of ownership which labor creates.
In developing this reason they thus reached what
was practically a doctrine of simple expediency.
Thus Dupont de Nemours, in his Origine etprogris

166

THE LABOR THEORY 157

dune science nouvelle, writes: "In employing his
person and his movable wealth on the labor and
outlay necessary to 'cultivation, man acquires prop-
erty in the soil on which he has labored. To de-
prive him of that soil would be to rob him of his
labor and the wealth he has laid out on the cultiva-
tion ; it would be to violate his property in his own
person and movables. In acquiring property in the
land, he acquires property in the fruits produced by
it, and this was the object of all his expenditure,
and the object for which he seeks to gain that prop-
erty in land. Unless [and here the utilitarian
argument begins] he had this property in the
fruits of the soil, no one would spend wealth or
labor on the land; there would be no landlords;
and the soil would remain waste, to the great detri-
ment of population, present and future." *

This argument tacitly implies that ownership of
land should be recognized only where the owner is
also an improver and cultivator. As a matter of
fact, however, though the Physiocrats often criticised
absentee landlordism, they did not declare the in-
validity of their titles. The time was not ripe for
such an assertion. As Bonar says : " The time had
not come for economical discussions to touch the
deepest foundations of property. The communism
of men like Morelly was an isolated opinion. There
was more need in the beginning of the second half
of that century for the assertion of liberty in the
sense of the removal of obstacles."

1 Quoted by Bonar in his Philotophy and Political Economy, p. 143.

158 SOCIAL JUSTICE

It was in England that the demand, based upon
the labor theory, was first put forward that all land
should be owned in common ; ind it is in England
that at the present time this demand is most loudly
voiced.

In 1796 was published the work of Thomas Spence
entitled The Meridian Sun of Liberty ; or the Whole
Rights of Man displayed and most accurately defined.
In this work the spoliation of the laboring classes by
the landlords is denounced, and the equal right of
all to the land asserted. 1 Other writers from time
to time have repeated this view. But most conspic-
uous among all English writers who have substan-
tially advocated land nationalization is John Stuart
Mill.

Notwithstanding his assertion, which we have
quoted some pages back, that the labor theory of
distribution involves the inherent objection that, in
its rewards, it makes no distinction between that
efficiency that comes from natural qualifications, and
tbat which is the result of applied effort or of slowly
and patiently acquired capacity, Mill elsewhere ac-
cepts the theory as absolutely valid. In his Political
Economy he says: "The institution of property,
where limited to its essential elements, consists in
the recognition in each person of a right to the
exclusive disposal of what he or she have produced
by their own exertions, or received either by gift or
by fair agreement, without force or fraud, from those

1 For an account of Spence's views, and his influence, see Menger,
The Right to the Whole Product of Labor, pp. 147-149.

THE LABOR THEORY 159

who have produced it. The foundation of the whole
is the right of the producers to what they themselves
have produced." l But this qualification for private
ownership cannot be pleaded, he goes on to say, in
the case of land, for land is not the produce of labor.
Thus, by its very nature, as he conceives it, land is
marked off from all manufactured goods, and, as he
declares, "if the land derived its productive power
wholly from nature, and not at all from industry, or
if there were any means of discriminating what is
derived from each source, it not only would not be
necessary, but it would be the height of injustice, to
let the gift of nature be engrossed by individuals." *
As thus possessing this character as a gift of
nature, and therefore intended by Natural Law for
the equal benefit of all, private ownership of land is
to be justified, if justified at all, Mill goes on to say,
upon special grounds of economic expediency. Thus,
in effect, he holds that labor gives such a natural
or abstract right to ownership of manufactured
goods no economic justification for it is needed;
whereas property in land must ever depend upon
simple utilitarian considerations. Furthermore, and
what seems strangely inconsistent with Mill's gen-
eral doctrines, utilitarian considerations can never,
he declares, create so sacred a right in the landlord
as can labor in the owner of other forms of wealth.
" When the € sacredness of property ' is talked about,"
he says, " it should always be remembered that any
such sacredness does not belong in the same degree

( * Book II, Chapter IL , * Idem, loc. cit.

160 SOCIAL JUSTICE

to landed property. No man made the land. It is
the original inheritance of the whole species. Its
appropriation is wholly a question of general expe-
diency. When private property in land is not expe-
dient, it is unjust. [Would he hold it consistent
with the general doctrines of utilitarianism which
he accepts, to say that this would not be true as to
other forms of property ?] It is no hardship to any
one to be excluded from what others have produced.
• . . But it is some hardship to be born into the
world and to find all nature's gifts previously
engrossed, and no place left for the newcomer."

The economic necessity for landlordism Mill readily
grants, placing it upon the obvious grounds that
"the strongest interest which the community and
the human race have in the land is that it would
yield the largest amount of food and other necessary
or useful things required by the community. . . .
In order, therefore, to give the greatest encourage-
ment to production, it has been thought right that
individuals should have an exclusive property in
land, so that they may have the most possible to
gain by making the land as productive as they can,
and may be in no danger of being hindered from
doing so by the interference of any one else. This
is the reason usually assigned for allowing land to be
private property, and it is the best reason that can
be given." *

But if, then, this be the sole justification for pri-

1 " The Right of Property in Land," Dissertations and Discussions,
VoLV.

THE LABOR THEORY 161

vate ownership of land, it necessarily follows, says
Mill, first, that the landlord should have his title
recognized only so long as he is an improver or cul-
tivator ; * and, secondly, that in so far as, during his
holding of it, a piece of land increases in value by
reason of general social causes, and not as a result of
labor by him expended or capital applied, such in-
crease should belong to society. 2

The means suggested by Mill for securing to soci-
ety this increase, or "unearned increment," is that
the landlords should hereafter pay a special tax
" within the limits of the increase which may accrue
to their present income from causes independent of
themselves." " From the present date, or any subse-
quent time at which the legislature may think fit to
assert the principle, I see no objection," he says, " to
declaring that the future increment of rent should be
liable to special taxation ; in doing which all injus-

1 " These are the reasons which form the justification, in an eco-
nomical point of view, of property in land. It is seen that they are
only valid, in so far as the proprietor of the land is its improver. . . .
In no sound theory of private property was it ever contemplated that
the proprietor of the land should be merely a sinecurist quartered on
it" Political Economy, Book II, Chapter II.

1 " Giving all the weight to this consideration which it is entitled
to, the claim it gives to the landlord is not to all the possible proceeds
of the land, but to such part of them only as are the results of his
own improvements, or of improvements made by his predecessors in
whose place he stands. Whatever portion of them is due, not to his
labor or outlay, but to the labor and outlay of other people, should
belong to those other people. ... If the nation at large, by their
successful exertions to increase the wealth of the country, have en-
hanced the value of the land independently of anything done by the
landlord or the tenant, that increase of value should belong to the
nation." " The Right of Property in Land," Dissertations and Discus-
tions, Vol. V.

162 SOCIAL JUSTICE

tice to landlords would be obviated if the present
market price of their land were secured to them, since
that includes the present value of all future expecta-
tions. With reference to such a tax, perhaps a safer
criterion than either a rise of rents or a rise of the
price of corn would be a general rise in the price of
land. It would be easy to keep the tax within the
amount which would reduce the market value of land
below the original valuation ; and up to that point,
whatever the amount of the tax might be, no injus-
tice would be done to the proprietors." l

Closely resembling, but more radical than the views
of Mill regarding land ownership, are those of Henry
George, as elaborated in his famous work, Progress
and Poverty. George accepts the labor theory of
property unreservedly. Both natural and divine law
declare, he says, the indefeasible right of an owner-
ship founded on labor. " As to the right of owner-
ship, we hold," he says, " that, being created individ-
uals, with individual wants and powers, men are
individually entitled (subject of course to the moral
obligations that arise from such relations as those of
the family) to the use of their own powers and the
enjoyment of the results. There thus arises, anterior
to human law, and deriving its validity from the law
of God, a right of private ownership in things pro-
duced by labor — a right that the possessor may
transfer, but of which to deprive him without his will

*" The Right of Property in Land." For the practical difficulties
that such a scheme as Mill's would involve, see Walker, Land and it$
Rent, pp. 121-141.

THE LABOR THEORY 163

is theft. This right of property, originating in the
right of the individual to himself, is the only full and
complete right of property. It attaches to things
produced by labor, but cannot attach to things cre-
ated by God." * And again, he says, " Thus there is
to everything produced by human exertion a clear
and indisputable title to exclusive possession and en-
joyment which is perfectly consistent with justice, as
it descends from the original producer, in whom it
rested by natural law. . . . There can be no other
rightful title, because there is no other natural right
from which any other title can be derived." f

This being so, private ownership in land, says
George, is unjustifiable for two reasons : first, because
it is not a product of labor ; and, secondly, because
free access to it by all is necessary in order that labor
may find the wherewithal upon which to employ
itself. " Private property in land is wrong. For the
right to the produce of labor cannot be enjoyed with-
out the right to the free use of the opportunities
offered by nature, and to admit the right of prop-
erty in these is to deny the right of property in the
produce of labor." 8

George, of course, distinguishes between improve-
ments made upon land and the naturally given
values of the soil, and it is only to these latter that
he has reference when he speaks of land as the gift
of God to mankind as a whole, and, as such, not
appropriable by individuals. When a man cultivates

1 Op. cit. y Book I, Chapter L * Idem, Book VII, Chapter I.

* Idem, Book VII, Chapter L

164 SOCIAL JUSTICE

the soil, says George, he acquires a right of property
in the produce which his labor brings forth, but not
in the soil on which it grew ; " for these are the con-
tinuing gifts of God to all generations of men, which
all may use, but none may claim as his alone." l But
though labor employed upon the soil does not give a
right to the soil itself, it does create a right to posses-
sion; for " as men begin to cultivate the ground and
expend their labor in permanent works, private pos-
session of the land on which labor is thus expended
is needed to secure the right of property in the prod-
ucts of labor." 1

Thus far it is seen that the reasoning of George is
identical with that of Mill, except that with George
the necessity of guaranteeing to the individual the
products of his labor gives rise to the right of
" possession," whereas with Mill it is interpreted as
justifying "proprietorship." Possession and pro-
prietorship are very different things, says George:
"The purpose of the one, the exclusive possession
of land, is merely to secure the other, the exclusive
ownership of the products of labor ; and it can never
rightfully be carried so far as to impair or destroy
this. While any one may hold exclusive possession
of the land so far as it does not interfere with
the rights of others, he can rightfully hold it no
farther." The problem thus becomes, "to com-
bine the advantages of private possession with the
justice of common ownership." To do this, " it is
only necessary to take for the common uses what

1 Quoted from his work, The Condition of Labor. * Idem.

THE LABOR THEOBY 165

value attaches to land irrespective of any exertion
of labor on it." 1

The manner in which George proposes to do this
is quite similar to that proposed by Mill, namely,
the imposition of a tax to an amount sufficient to
absorb all income that is derived from the original
or socially acquired values of the soil. That is to
say, he would not nationalize the land in the sense
of making the State the general landlord, but would
simply have society appropriate its net produce.
"Consider," he says, "what rent is. It does not
arise spontaneously from the land; it is due to
nothing that the landowners have done. It rep-
resents a value created by the whole community.
Let the landholders have, if you please, all that the
possession of the land would give them in the
absence of the rest of the community. But rent,
the creation of the whole community, necessarily
belongs to the whole community." f

As is well known, where George wholly parts
company with Mill is in his denial to present holders
of land of a right to compensation for this virtual
appropriation by the State of their property. The
statement of the manner in which George attempts
to justify this spoliation we shall, however, postpone,
until we come to the criticism of the general prem-
ises upon which Mill and George base their systems.
A considerable portion of George's work is taken
up in describing the evils consequent upon the pres-

ifdem.

• Progrtu and Poverty, Book VII, Chapter IEL

166 SOCIAL JUSTICE

ent landlord regime. The extreme position is taken
that in an advancing civilization the inevitable
tendency is for rent, not only to absorb all the in-
crease in wealth which is the outcome of improved
means of production and transportation, but to draw
to itself more than this. Hence, says George, so
long as individual ownership of land is permitted
to continue, not only can the laboring man hope
for no increase in his wages, but he must expect
that his condition will become steadily worse : " Bent
swallows up the whole gain, and pauperism accom-
panies progress." " The reason why, in spite of the
increase of productive power, wages constantly tend
to a minimum which will give but a bare living, is
that, with increase in productive power, rent tends
to even greater increase, thus producing a constant
tendency to the forcing down of wages." *

1 Progress and Poverty, Book V, Chapter II. Other statements
showing the extreme position of George upon this point are the
following : —

"The value of land depending wholly upon the power which its
ownership gives of appropriating wealth created by labor, the increase
of land values is always at the expense of the value of labor. And,
hence, that the increase of productive power does not increase wages,
is because it does not increase the value of land. Bent swallows up
the whole gain and pauperism accompanies progress." Book III,
Chapter VIII.

"The effect of increasing population upon the distribution of
wealth is to increase rent, and consequently to diminish the pro-
portion of the produce which goes to capital and labor, in two ways :
First, by lowering the margin of cultivation. Second, by bringing
out in land special capabilities otherwise latent, and by attaching
special capabilities to particular lands." Book IV, Chapter II.

"Wealth in all its forms being the product of labor applied to
land or the products of land, any increase in the power of labor,
the demand for wealth being unsatisfied, will be utilized in procuring

THE LABOR THEORY 167

The utter misconception both of economic facts
and economic laws which underlies the argument by
which George reaches this conclusion must be left to
the economists to point out. To the economists must
also be left the consideration of what would be the
probable effects of the imposition of such a single
tax as that advocated.

Alfred Russell Wallace is another prominent advo-
cate of the expediency and justice of land nationaliza-
tion. 1 Like George, Wallace finds in rent the cause
of almost all economic evils; but, unlike George,
would have the State assume direct ownership of
land, and would compensate the former owner either
by the payment of a lump sum, or, preferably, by an
annuity to him and to " any heir or heirs of the land-
owner who may be living at the passing of the act,
or who may be born at any time before the decease
of the said owner." "This," continues Wallace,
" would insure to the owner himself, and to all per-
sons in whom he could possibly have any present
interest, the same net income from the land which
they enjoyed before the passing of the act." 2

Finally, conspicuous among those who have in
their writings given support to the theory that land

more wealth, and thus increase the demand for land." Book IV,
Chapter IIL

" All that I wish to make clear is that, without any increase in
population, the progress of invention constantly tends to give a larger
proportion of the produce to the owners of land, and in a smaller and
smaller proportion to labor and capital." Book IV, Chapter III.

1 See his work entitled, Land Nationalization: Its Necessity and its
Aims, first published in 1882.

*0p.cit.,3d edition, p. 190.

168 SOCIAL JU8TICE

may not justly be held in private ownership is Her-
bert Spencer. The part which Spencer has played
in this controversy is not, however, an easy one to
describe. The reason for this is that, though he is
sufficiently explicit in his first published work that
private property in land is an injustice to the land-
less, he has subsequently declared his abandonment
of such position. At the same time, however, he
has continued to affirm the premises upon which his
first conclusion was founded, and has not indicated,
at least in any satisfactory way, how it is that from
them he is now able to reach a different result. In
his book, A Perplexed Philosopher, Henry George
has subjected the various utterances of Mr. Spencer
on the land question to a merciless review. While
one cannot, of course, give the slightest consideration
to the charges made therein by George that the
change in Spencer's views has been due to his having
" tasted the sweets of London society " and become
the friend of " Sir John and his Grace," one cannot
escape the conviction that Spencer has, in the course
which he has pursued and the explanations which he
has offered, exhibited neither candor nor consistency.
Spencer's first book, Social Statics, was published
in 1850. After deducing his well-known funda-
mental principle that "every man may claim the
fullest liberty to exercise his faculties compatible
with the possession of like liberty by every other
man," he there proceeds to determine the concrete
rights which logically follow. In Chapter IX he
examines " The Right to the Use of the Earth," and

THE LABOR THEORY 169

in Chapter X, " The Right of Property." " Given,"
he says, "a race of beings having like claims to
pursue the objects of their desires — given a world
adapted to the gratification of those desires — a
world into which such beings are similarly born,
and it unavoidably follows that they have equal
rights to this world. . . . Equity, therefore, does
not permit property in land." In its origin, he goes
on to say, private property in land was the outcome
of violence, fraud, and force, and asks : " Could valid
claims be thus constituted? Hardly. And if not,
what becomes of the pretensions of all subsequent
holders of estates so obtained ? Does sale or bequest
generate a right where it did not previously exist ?
Would the original claimants be non-suited at the
bar of reason, because the thing stolen from them
had changed hands? Certainly not. And if one
act of transfer can give no title, can many? No;
though nothing be multiplied forever, it will not
produce one. . . .

" ' But time/ say some, ' is a great legalizer. Im-
memorial possession must be taken to constitute a
legitimate claim. That which has been held from
age to age as private property, and has been bought
and sold as such, must now be considered as irrevoca-
bly belonging to individuals/" To which Spencer
replies, "Whether it may be expedient to admit
claims of a certain standing, is not the point. We
have here nothing to do with considerations of con-
ventional privilege or legislative convenience. We
have simply to inquire what is the verdict given by

170 SOCIAL JUSTICE

pure equity in the matter. And this verdict enjoins
a protest against every existing pretension to the
individual possession of the soil; and dictates the
assertion, that the right of mankind at large to
the earth's surface is still valid ; all deeds, customs,
and laws notwithstanding. Not only have present
land tenures an indefensible origin, but it is impossi-
ble to discover any mode in which land can become
private property."

Finally, in closing this chapter, Spencer says:
" No doubt great difficulties must attend the resump-
tion, by mankind at large, of their rights to the soil.
The question of compensation to existing proprietors
is a complicated one — one that perhaps cannot be
settled in strictly equitable manner. Had we to
deal with the parties who originally robbed the
human race of its heritage, we might make short
work of the matter. But, unfortunately, most of
our present landowners are men who have, either
mediately or immediately — either by their own acts,
or by the acts of their ancestors — given for their
estates equivalents of honestly earned wealth, be-
lieving that they were investing their savings in
legitimate manner. To justly estimate and legiti-
mate the claims of such is one of the most intricate
problems society will one day have to solve. But
with this perplexity and our extrication from it
abstract morality has no concern. Men, having got
themselves into the dilemma by disobedience to the
law, must get out of it as well as they can, and with
as little injury to the landed classes as may be."

THE LABOR THBOBY 171

George gains from this last quoted paragraph the
idea that, by the complexity of the question of com-
pensation spoken of by Spencer, reference is had to
the difficulty of distinguishing between the natural
values of lands, for which no compensation need be
paid, and the improvements thereon, for which a
recompense should be given. This, however, is
certainly not what Spencer says, nor, as we believe,
what he intended to say. To our mind, the meaning
is that, should society assume possession of the land,
a certain inequity would necessarily be committed,
inasmuch as the present landowners have in most
cases " given for their estates equivalents of honestly
earned wealth, believing that they were investing
their savings in a legitimate manner," but that this
~ equity would be less than that of permitting a con-
tinuance of private landlordism.

In his Chapter X, entitled " The Right of Property
in Land," Spencer accepts the labor theory, but criti-
cises the view of Locke so far as private ownership
of the soil is justified. Granting to society an inal-
ienable right to the soil, he finds the Lockian theory
of property irreproachable. The individual may
have a just right to all that he has produced, but
for the use of the soil he must pay a rent to society.

Between 1850 and 1882 Spencer added nothing to
his views on the land question. In this latter year,
however, he published his volume on Political Insti-
tutions. In this work, in his chapter on " Property,"
he says nothing, however, that would indicate any
essential change from his earlier expressed views.

172 SOCIAL JUSTICE

But in 1883, in a letter called forth by an article in
the St. James' 8 Gazette, he calls attention to the fact
that he wishes his views upon the question of land
nationalization to be taken as tentative, and that, in
fact, he had intended to express them as such in his
Political Institutions. " The writer of the article in
the St. James's Gazette" he says, " does not represent
the facts correctly when he says that the view con-
cerning the ownership of land in Social Statics is
again expounded in Political Institutions, 'not so
fully, but with as much confidence as ever/ In this
last work I have said that ' though industrialism has
thus far tended to individualize possession of land,
while individualizing all other possession, it may be
doubted whether the final stage is at present reached. 9
Further on I have said that ' at a stage still more
advanced, it may be that private ownership of land
will disappear," and that 'it seems possible that
primitive ownership of land by the community . . .
will be revived/ and yet again I have said that 'per-
haps the right of the community to the land, thus
tacitly asserted, will, in time to come, be overtly
asserted/ Now it seems to me that the words I have
italicized imply no great ' confidence.' Contrariwise,
I think they show quite clearly that the opinion con-
veyed is a tentative one." To which George very
properly replies : " The passages Mr. Spencer quotes
no more modify the view of land ownership set forth
in Social Statics than Lord Lytton's Coming Race
controverts Adam Smith's Wealth of Nations. In
Social Statics Mr. Spencer declares what ought to be

THE LABOB THEORY 173

done ; in the passages he quotes from Political Insti-
tutions he is prognosticating as to what is likely will
be done." *

In 1889, in a letter to the Times, Spencer asserts
that Social Statics was intended to be a system of
political ethics — " absolute political ethics, or that
which ought to be, as distinguished from relative
political ethics, or that which is at present the near-
est practical approach to it." All that was then
said, he declares, was "said in the belief that the
questions raised were not likely to come to the front
in our time or for many generations." And he closes
by saying that " nationalization of the land effected
after compensation for the artificial value given by
cultivation, amounting to the greater part of its
value, would entail in the shape of interest on the
required purchase money, as great a sum as is now
paid in rent, and indeed a greater, considering the
respective rates of interest on landed property and
other property. Add to which there is no reason
to think that the substituted form of administration
would be better than the existing form of administra-
tion. The belief that land would be better managed
by public officials than it is by private owners is a
very wild belief. What the remote future may bring
forth there is no saying; but with a humanity any-

1 A Perplexed Philosopher, p. 82. For the inextricable contradic-
tions into which Mr. Spencer is led in an attempt to declare that for
a number of years he had been doing all he could to stop the circula-
tion of his Social Statics, when in fact all the time the book was being
published and sold in America, with his authority, see idem, pp. 83,
85, 108-112.

174 SOCIAL JUSTICE

thing like that which we now know, the implied
reorganization would he disastrous."

In other words, Spencer declares that the realiza-
tion of what has been discovered to be absolutely just
is by no means to be attempted. As a striking com-
mentary upon such a position, George quotes Spen-
cer s own words, where in his Social Statics he says :
"Not as adventitious, therefore, will the wise man
regard the faith that is in him — not as something
which may be slighted, and made subordinate to
calculations of policy, but as a supreme authority to
which all his actions should bend. . . . And thus,
in teaching a uniform, unquestioning obedience, does
an entirely abstract philosophy become one with all
true religion. Fidelity to conscience — this is the
essential precept inculcated by both. No hesitation,
no faltering about probable results, but an implicit
submission to what is believed to be the law laid
down to us. . . • We are to search out with a gen-
uine humility the rules ordained for us — are to do
unfalteringly, without speculating as to consequences,
whatever these require ; and we are to do this in the
belief that then, when there is a perfect sincerity, —
when each man is true to himself — when every one
strives to realize what he thinks the highest recti-
tude, — then must all things prosper."

The latest views of Spencer are to be found in his
Justice, published in 1892 as Part IV of his Princi-
ples of Ethics. Chapter XI of this work is entitled,
" The Rights to the Uses of Natural Media." Here
he repeats that " the earth's surface cannot be denied

THE LABOR THEORY 175

to any one absolutely without rendering life-sustain-
ing activities impracticable. . . . Hence it appears
to be a corollary from the law of equal freedom, in-
terpreted with strictness, that the earth's surface may
not be appropriated absolutely by individuals, but
may be occupied by them only in such manner as
recognizes ultimate ownership by other men; that is,
society at large.' 9

In the beginning, says Spencer, communism in
land actually existed. After quoting several alleged
facts regarding the Russian mir, he declares, " Such
facts, and numerous other facts, put beyond question
the conclusion that before the progress of social
organization changed the relations of individuals to
the soil, that relation was one of joint ownership, and
not of individual ownership." But conquest and
force has everywhere suspended this communal pro-
prietorship by individual ownership ; but, as Spencer
says, the original theory still survives in the legal
idea that ultimately the title to all land is vested in
the State. And, he adds, " It remains only to point
out that the political changes which have slowly
replaced the supreme power of the monarch by the
supreme power of the people, have by implication
replaced the monarch's supreme ownership of the
land by the people's supreme ownership of the
land." 1 If this be so, then, — though Spencer does
not so explicitly declare, — even from the legal stand-

1 We say " alleged,'* for as we shall see a little further on, the latest
opinion of historians is that the mir does not and never has illustrated
a true type of land communism.

176 80CIAL JUSTICE

point, no objection can be raised to the community's
reasserting its ethical right to the actual ownership
and use of the soil now engrossed by individuals.

George seems to think that Spencer means to infer
by the above argument that in the recognition of the
State's paramount title to land as now shown in the
exercise of its police power and power of eminent
domain, the right of all individuals to that free
access to the use of the soil which the law of
equal freedom requires is practically secured to
them. Spencer's meaning is not plain, but to us it
rather appears that the meaning intended to be con-
veyed is as we have stated it. As a matter of fact,
of course, the theory of the English law of which
Spencer speaks is not a survival of the primitive idea
of common ownership, but an inheritance from the
feudal system. And, moreover, the State does not
exercise any more absolute a control over land under
its right of eminent domain than it does over other
forms of property under its "police powers." In
truth, indeed, the interference with private property
rights under the latter power is, in one respect at
least, more serious than that exercised under the for-
mer ; for when land has been taken from its owners
by a proceeding instituted under the right of eminent
domain compensation is ordinarily given ; whereas,
when property values are destroyed by the police
power no indemnification is awarded.

In Appendix B to his Justice, after giving figures
to show the aggregate amounts that the landless
have received in the past from the landlords in the

THE LABOR THEORY 177

form of poor-relief, — but not mentioning or appar-
ently remembering the income that the landlords
have in the past secured from their holdings, — Spen-
cer says: "When in Social Statics, published in 1850,
I drew from the law of equal freedom the corollary
that the land could not equitably be alienated from
the community, and argued that after compensating
its existing holders it should be reappropriated by
the community, I overlooked the foregoing consider-
ations. Moreover, I did not clearly see what would
be implied by the giving of compensation for all that
value which the labor of ages had given to the land.
While, as shown in Chapter XI, I adhere to the infer-
ence originally drawn, that the aggregate of men
forming the community are the supreme owners of
the land, — an inference harmonizing with legal doc-
trine and daily acted upon in legislation, — a fuller
consideration of the matter has led me to the conclu-
sion that individual ownership subject to State-sover-
eignty should be maintained."

In effect, then, we see that, though Spencer has
held varying views regarding the expediency and
even the justice of resorting again to communal
ownership of land, he has held consistently to the
idea that land by its very nature is not intended for
private ownership, and to the opinion that, as an
abstract principle of right, — that is, divorced from
all questions of present feasibility, — engrossment of
the soil by individuals is an injustice to those who,
by such engrossment, are prevented from exercising
that right to the free use of the land which they are

178 SOCIAL JUSTICE

declared to have in common with their fellows.
Upon this point, Mill, George, Wallace, and Spencer
agree.

Criticism. — In undertaking a criticism of the
theories of Mill, George, Wallace, and Spencer, it
would be a comparatively easy task to show that
they have both exaggerated the evil effects of private
landlordship, and ignored its beneficent influences.
Furthermore, it would not be a serious task to point
out the practical difficulties that necessarily lie in
the way either of applying and collecting a " single
tax," or of establishing and maintaining a general
State landlordship. Criticism of this sort belongs,
however, to the economic specialist, and in fact
economists have abundantly demonstrated the eco-
nomic fallacies involved in the system we have been
discussing. 1 Our examination shall therefore be
limited to the questions of justice involved.

The refutation of the labor theory of property
which has gone before abolishes the main distinction
which is usually made between the right to land and
to other forms of wealth ; for, even if it be admitted
that land is a free gift of nature, while other goods
are wholly the result of human labor which, how-
ever, as we shall see, is not admitted, still, inasmuch
as it has been shown that labor cannot furnish the
sole justification for private property, there is still
left open the possibility that the true justification

1 See especially Walker, Land and its Rent, and a series of valuable
papers published in No. XXVH of the Journal of the American Social
Science Association.

THE LABOR THEORY 179

will be such as to warrant individual ownership of
land as well as of manufactured commodities.

As a matter of fact, the distinctions which Mill,
Spencer, and George make between land and other
goods are not valid. In the first place, land is not
unique in being strictly limited in amount. Many
other articles of value are not susceptible of indefinite
increase. In truth, at any one time, the amount
of any commodity in existence and available for
human use is definitely determined. Many goods
are, indeed, of such a character that their amount
may easily be added to by the energy of man, but
as to all that class which come under the law of
" diminishing returns," this is not so ; and as to
many of these last, an attempt to increase to any
considerable degree their total amount would prove
a more difficult task than would be the extension of
available arable land to-day.

But even were this not so, the mere fact that free
sale and exchange of land everywhere exists among
civilized peoples is sufficient to destroy any argu-
ment based upon the alleged monopolistic character
of land ownership. So long as men are free to
exchange manufactured commodities for land, and
there is no concerted attempt on the part of land-
owners to keep their estates out of the market,
there is presented to every individual practically the
same opportunity for becoming a landowner as there
is for his becoming a capitalist of any other sort. 1

1 As Edward Atkinson has somewhere said, it is now more easy for
the ordinary individual to obtain land, than it formerly was among
savages by occupation.

180 SOCIAL JUSTICE

It may be replied, however, that if a given indi-
vidual have no inalienable right to some piece of
land, it is theoretically possible for the society of
which he is a member to refuse him a place upon
which to sleep or even stand. Therefore, it may
be argued, if a man have a right to life at all, he
must have a right to the possession, or at least to
the enjoyment in common with others, of some
definite piece of ground. To this it may be replied
that, in the first place, no individual has an abstract,
that is to say, an absolute, right to life. This we
shall show in another chapter. 1 In the second
place, it may be answered, that even were the right
to life recognized, this would not place land upon a
basis distinct from all other kinds of wealth. Place
a naked man upon an unimproved piece of land
anywhere except in the warmer latitudes, and he
would soon perish, unless given, or allowed to ex-
change the products of his land for, articles of cloth-
ing, materials for building, implements of husbandry,
etc. If, then, we are going to recognize an absolute
right to life, we must, according to circumstances,
group other commodities with land as not ethically
susceptible of general private ownership. In truth,
as Professor J. B. Clark has said, if the landless
man has any case against the world, it is that he
has a lack of wealth, — of accumulated value, —
not that he has no land.

In distinguishing between products of the soil and
other forms of economic goods, George repeats the

1 Post, Chapter X.

THE LABOR THEORY 181

error of the Physiocrats that nature cooperates only
in certain forms of production, whereas the truth is
that it cooperates in all. In one place George him-
self seems to recognize this. Thus he says: "When
we speak of labor creating wealth, we speak meta-
phorically. Man creates nothing. The whole human
race, were they to labor forever, could not create the
tiniest mote that floats in a sunbeam — could not
make this rolling sphere one atom heavier or one
atom lighter. In producing wealth, labor, with the
aid of natural forces, but works up, into the forms
desired, preexisting matter." But the conclusion
that he draws from this is, not that, labor furnish-
ing the only valid title to ownership, no man can
claim right to the entire product of his labor, but
that, "to produce wealth, [labor] must, therefore,
have access to this matter and to these forces —
that is to say, land." l

Mill, in his Political Economy, sees very plainly
the fact that nature participates in every form of
production, and from it draws a conclusion that is
absolutely destructive both to the labor theory of
property in general, and to the land theory of George
and Spencer in particular. He says: "The part
which nature has in any work of man is indefinite
and incommensurable. It is impossible to decide
that w any one thing nature does more than in
any other. One cannot even say that labor does
less. Less labor may be required, but if that which
is required is absolutely indispensable, the result is

1 Progress and Poverty, Book V, Chapter L

182 SOCIAL JUSTICE

just as much the product of labor, as of nature.
When two conditions are equally necessary for pro-
ducing the effect at all, it is unmeaning to say that
so much of it is produced by one and so much by
the other; it is like attempting to decide which
half of a pair of scissors has most to do in the
act of cutting ; or which of the factors, five or six,
contributes most to the production of thirty." l

There is one result, moreover, which logically fol-
lows from George's premises, which is not always
sufficiently emphasized, and which, if emphasized,
would go far toward depriving his scheme of the pop*
ularity it enjoys. This necessary result is that the
exclusive appropriation of a given territory by any
particular community cannot be justified. For if, as
George says, " Natural justice can recognize no right
in one to the possession and enjoyment of land tbat
is not equally the right of all," then all men, as men,
and not simply as members of a particular social ag-
gregate, are entitled to participate in the advantages
which its possession yields. Huxley has put into
amusing yet truthful form the effect that the asser-
tion of this fact would probably have upon the popu-
larity of George's scheme. Consider, says Huxley,
the effect of a sober and truthful statement of what
" the orating person really meant, or, according to his
own principles, ought to mean, say of such a speech
as this : —

" ' My free and equal fellow countrymen, there is
not the slightest doubt that not only the Duke of

1 Op. ciL, Book I, Chapter I, § 3.

THE LABOR THEORY 188

Westminster and the Messrs. Astor, but everybody
who holds land from the area of a thousand square
miles to that of a tablecloth, and who, against all
equity, denies that every pauper child has an equal
right to it, is a robber. [Loud and long-continued
cheers; the audience, especially the paupers, stand-
ing up and waving hats.] But, my friends, I am
also bound to tell you that neither the pauper child,
nor Messrs. Astor, nor the Duke of Westminster,
have any more right to the land than the first nigger
you may meet, or the Esquimaux at the north end of
this great continent, or the Fuegians at the south end
of it. Therefore, before you use your strength in
claiming your rights, and take the land away from
the usurping dukes and robbing Astors, you must
recollect that you will have to go shares in the prod-
uce of the operation with the four hundred and odd
millions of Chinamen, the one hundred and fifty
millions who inhabit Hindoostan, the — [loud and
long-continued hisses; the audience, especially the
paupers, standing up and projecting handy movables
at the orator].'" 1

Besides the criticism which has already been made
of George's theories regarding land ownership, there
are several minor objections which may be made, but
which scarcely need be dwelt upon at any length.
In the first place, if strictly applied, his system
would destroy the validity, not merely of present
land titles, but of almost all other forms of wealth.
If no landlord has ever in the past obtained a valid

1 Methods and Results, essay on " Natural and Political Bights."

184 80CIAL JUSTICE

title to his land, then, when he has exchanged or sold
his alleged property for some other form of wealth,
such other forms could not rightfully have become
his, but must, in equity, have continued to belong to
that society which was and is the rightful owner of
the soil for which it was exchanged. But, inas-
much as originally almost all wealth consisted of
land, this would justify the confiscation to public uses
of practically all wealth of a permanent character.

In the second place, George attempts to obtain
support for his theory by alleging that, as an histori-
cal fact, " the common right to land has everywhere
been primarily recognized, and private ownership has
nowhere grown up save as the result of usurpation."
And he continues, " The primary and persistent per-
ceptions of mankind are that all have an equal right
to land, and the opinion that private property in land
is necessary to society is but an offspring of ignorance
that cannot look beyond its immediate surroundings
— an idea of comparatively modern growth, — as
artificial and as baseless as that of the divine right
of kings." 1

The authorities upon which George relies as to the
original community of ownership of the soil among
all races, so far as known, are de Laveleye and
Maine. As a matter of fact, however, later research
has shown with practical conclusiveness that these
writers are mistaken upon this point, or at least
have not proved it. 9 The refutation of the idea of

1 Progress and Poverty, Book VII, Chapter IV.
s See especially de Coulanges' essay, entitled The Origin of Property
in Land, and Jenks, Law and Politics in the Middle Ages.

THE LABOR THEORY 185

an original community of land ownership deprives
George's theory of any support that he may have
sought from it, but it does not, of course, play any
essential part in a vindication of the rightfulness of
private property in land; for, as George himself
says, "If it were true that land had always been
treated as private property, that would not prove the
justice or necessity of continuing so to treat it, any
more than the universal existence of slavery, which
might once have been safely affirmed, would prove
the justice and necessity of making property of
human flesh and blood. ..."

From our standpoint, not so important, yet quite
valid, is the objection to the assertion made by
George that his proposed single tax is ideally just
upon the ground that it apportions itself according to
benefits received. This principle has been generally
repudiated by economists as a just basis of taxation.
The idea is, in fact, dependent for its validity upon
the individualistic political philosophy of the eigh-
teenth century, according to which the State is
viewed simply as an agent for the accomplishment
of individual interests. When, however, the true
conception of the nature of the State and of its
ends is obtained, it is seen that " the principle of con-
tribution becomes shifted from that of benefits to
that of ability, of faculty, of capacity. Every man
now must support the State to the full extent, if
need be, of his ability to pay. He does not measure
the benefits of the State action to himself: first,
because the benefits are quantitatively immeasura-

186 SOCIAL JUSTICE

ble; and, secondly, because, if he is a patriot, he
considers not the welfare of himself, but of the com-
munity at large, and he contributes to this general
welfare, not in proportion to any share of personal
aggrandizement, but in accordance with the elevated
ethical conception of relative ability." 1

The Right to Compensation. — As has already been
said, George differs from Mill in that he sees no
reason in equity why, if society should seek to take
to itself its own, the present holders of land should
be compensated. The demonstration which we have
made of the invalidity of a distinction between land
and other forms of wealth as to the rightfulness of
private ownership necessarily carries with it the
refutation of this view. For if there be no sufficient
reason for distinguishing, as to ethical right of
ownership, between private property in land and
property in other forms of wealth, there cannot be
any just ground for confiscating the property of
landowners as such, while the owners of other forms
of wealth are unmolested. At the same time, how-
ever, it is comparatively easy to show that, even
were George's theories in other respects true, they
would not justify the reasoning which he has
brought forward to support the claim that no com-
pensation should be given to the landlords. The
vital objection to the spoliation which George pro-

1 Seligman, in Journal of the American Social Science Association,
No. XXVII. For an admirable discussion of the question of abstract
justice in the apportionment of taxes, see the articles "Taxation"
and " Graduated Taxation," by Professor Seligman, in Palgrave's Dic-
tionary of Political Economy. See also Seligman's Essays in Taxation-

THE LABOR THEORY 187

poses lies of course in the fact that, even if private
property in land be unjust, the present owners have,
in practically all cases, exchanged for their holdings
values honestly acquired and owned, and have done so
at a time when both law and social opinion have jus-
tified the private ownership of land, and guaranteed
to it their protection. How, then, the question neces-
sarily arises, can such owners justly be deprived of
their property by that same society whose law and
custom justified the original investment ?

George answers this question by saying: "Why
not make short work of the matter anyhow ? For
this robbery is not like the robbery of a horse or a
sum of money that ceases with the act. It is a
fresh and continuous robbery, that goes on every day
and every hour. It is not from the produce of the
past that rent is drawn ; it is from the produce of
the present. It is a toll levied upon labor constantly
and continuously. Every blow of the hammer,
every stroke of the pick, every thrust of the shuttle,
every throb of the steam-engine, pays it tribute. It
levies upon the earnings of men who, deep under
ground, risk their lives, and of those who over white
surges hang to reeling masts; it claims the just
reward of the capitalist and the fruits of the
inventor's patient effort; it takes little children
from play and from school, and compels them to
work before their bones are hard or their muscles
are firm; it robs the shivering of warmth; the
hungry, of food ; the sick, of medicine ; the anxious,
of peace. It debases, and embrutes, and embitters.

188 80CIAL JUSTICE

It crowds families of eight and ten into a single
squalid room ; it herds like swine agricultural gangs
of boys and girls j it fills the gin palace and groggery
with those who have no comfort in their homes ; it
makes lads who might be useful men candidates for
prisons and penitentiaries ; it fills brothels with girls
who might have known the pure joy of motherhood;
it sends greed and all evil passions prowling through
society as a hard winter drives the wolves to the
abodes of men ; it darkens faith in the human soul,
and across the reflection of a just and merciful
Creator draws the veil of a hard, and blind, and
cruel fate ! It is not merely a robbery in the past;
it is a robbery in the present — a robbery that
deprives of their birthright the infants that are now
coming into the world. Why should we hesitate
about making short work of such a system? Be-
cause I was robbed yesterday, and the day before,
and the day before that, is it any reason that I
should suffer myself to be robbed to-day and to-
morrow? Any reason that I should conclude that
the robber has acquired a vested right to rob me ? " *
The earnestness and eloquence of the paragraphs
that have been quoted go far toward showing the
influence which Mr. George's work has had among
the masses, but it is difficult to believe that it was
not evident to a man of George's intellectual ability
that the argument set forth was absolutely irrele-
vant. For if all that he says be true, if private
ownership in land be a continuing robbery, and

1 Progress and Poverty, Book VII, Chapter m.

THE LABOR THEORY 189

attended by the evils he describes, nothing is proved
that destroys the equities that have been created in
the past. If, as he says, rent is drawn, not from the
past, but the present, cause the robbery instantly to
cease, but let this not be a warrant for exploiting
those who have invested their honestly earned wages
in landed property.

But, says George, "To buy up individual prop-
erty rights would merely be to give the landholders
in another form a claim of the same kind and amount
that their possession of land now gives them; it
would be to raise for them by taxation the same
proportion of the earnings of labor and capital
that they are now enabled to produce. Their
unjust advantage would be preserved, and the
unjust disadvantage of the non-landholders would
be continued." 1

To this we reply, if this be true, then the existence
of a capitalistic class, however their wealth be origi-
nally obtained, is unjust ; whereas, as we have already
shown, this is not so. In fact, Geoi*ge himself, though
not upon proper grounds, defends the existence of an
interest-securing class.

It will be interesting to see how he does this. " If
wealth," he says, " consisted but of the inert matter
of the universe, and production of working up this
inert matter into different shapes, . . . interest would
be but the robbery of industry, and could not longer
exist. . . . But all wealth is not of the nature of
planes, or planks, or money, which has no reproduc-

1 Op. tit., Book VII, Chapter EEL

190 SOCIAL JU8TICB

tive power, nor is all production merely the turning
into other forms of this inert matter of the uni-
verse. It is true that if I put away money, it will
not increase. But suppose, instead, I put away wine.
At the end of the year I will have an increased
value, for the wine will have improved in quality.
Or supposing that, in a country adapted to them, I
set out bees; at the end of the year I will have
more swarms of bees and the honey which they
have made. Or supposing, where there is a range,
I turn out sheep, or hogs, or cattle ; at the end of
the year I will, upon the average, also have an
increase. Now what gives the increase in these
cases is something which, though it generally
requires labor to utilize it, is yet distinct and sep-
arate from labor — the active power of nature; the
principle of growth, of reproduction, which every-
where characterizes all the forms of life. And it
seems to me that it is this which is the cause of
interest or the increase of capital over and above
that due to labor. . . . Now the interchangeability
of wealth necessarily involves an average between all
the species of wealth of any special advantage which
accrues from the possession of any particular species,
for no one would keep capital in one form when it
could be changed into a more advantageous form.
. . . And so in any circle of exchange the power
of increase which the reproductive or vital force of
. nature gives to some species of capital must average
with all; and he who lends, or uses in exchange,
money, or planes, or bricks, or clothing, is not

THE LABOR THEORY 191

deprived of the power to obtain an increase, any
more than if he had lent or put to a reproductive
use so much capital in a form capable of increase.

• . • Thus interest springs from the power of
increase which the reproductive forces of nature,
and in effect analogous capacity for exchange, give
to capital. It is not an arbitrary, but a natural
thing ; it is not the result of a peculiar social organ-
ization, but of laws of the universe which underlie
society. It is, therefore, just." *

As we have already seen, the true reason why
interest is paid, and why it is rightfully paid, is
not, as George thinks, because of the naturally
fructifying characteristic of certain forms of wealth,
but because of the fact that an immediate advantage
is actually worth more than a deferred one.

It is not to be gathered from the foregoing that
confiscation by the State of land privately owned
can never be justified save when compensation is
offered. If the necessity for the change should be
shown to be imperative, and yet the existing condi-
tions should be of such a character as absolutely to
preclude the possibility of payment of indemnity to
the landlords, confiscation would be justified in much
the same way that a private house may justly be
demolished in order to prevent the spread of a
conflagration, or the value of any private property

1 Op. cit., Book III, Chapter III. As Bdhm-Bawerk points out,
George's theory resembles Turgot's "Fructification Theory," bat
differs from it in that Turgot places the source of interest outside

• of capital, that is, in rent-bearing land, while George seeks it out-
side the sphere of capital in certain naturally fruitful kinds of goods.

192 SOCIAL JUSTICE

destroyed by the exercise of the State's "police
power."

This, however, is something quite different from
what is maintained by the followers of George.
They justify the exploitation of the landlord upon
a theory as to the peculiar character of land which
distinguishes it generically from all other forms of
wealth. The principle which we have just stated
recognizes the original right of the owners of the
land, but supersedes it by the enforcement of a higher
right. The followers of George deny the original
equity of private ownership of land, and thus declare
that no right exists for the violation of which a justi-
fication is needed.

The justice of the appropriation by the community
of only the future unearned increment of land, as
advocated, for example, by Mill, depends upon prin-
ciples already stated. If this appropriation should
be so made that the actual market value of land
would not be affected, no special justification would
be needed. Whether or not the step should be
taken would, under such circumstances, be simply
one of economic expediency. It may be observed,
however, that it is by no means certain that there
is an unearned, that is a socially earned, increment
which attaches to land that does not also attach to
many other forms of wealth.

The whole matter is summed up, however, in say-
ing that unless land can be shown to be of such a
character that for its private ownership there must
be discovered an ethical warrant different from that

THE LABOR THEORY 193

which is needed for other forms of property, an
interference with its value by the State, present or
future, can be defended only upon the same grounds
that will justify a like interference with the values
of other forms of wealth.

CHAPTER Vn

OTHER CANONS OF DISTRIBUTIVE JUSTICE

Effort Theory, — As we have seen, one of the
chief objections to the ethical validity of the labor
theory is that, in its apportionment of rewards, no
distinction is made between that productive effi-
ciency which is due to abilities patiently and labori-
ously acquired by the effort of the individuals
concerned, and that which results from the qualities
of mind and body naturally given by heredity or
spontaneous variation. At first thought, a correc-
tive to this defect seems to be given by making
efforts expended, rather than actual results reached,
the distributive criterion. But here, to an even
greater degree than is the case with the other
standards of distributive justice which we have con-
sidered, the principle is one impossible of practical
application. The fatal difficulty is in determining,
even approximately, the amount of effort honestly
expended by an individual in the performance of a
given piece of labor, or, if determined, of comparing
it with the amounts expended by other individuals.
As Mackenzie says : " Are we to mean by effort the
amount of energy expended? or are we to mean
the difficulty which a given individual experiences?

194

OTHEB CANONS OF DISTRIBUTIVE JUSTICE 195

The difficulty will obviously vary with the abilities
of the workers, and will be a quite incalculable ele-
ment; and if, instead of considering the difficulty
for a given individual, we consider rather the diffi-
culty for an average human being, we are still not
freed from the presence of a factor which defies
calculation. There are some forms of labor which
have no estimable degree of difficulty for an aver-
age human being, but are strictly impossible. It
is not allowed mediocribus esse poetis, and there is
a similar prohibition on the performance of all the
higher forms of artistic production in the manner
in which a merely average human being could per-
form them. The reward of such production, there-
fore, if estimated by the difficulty for an average
human being, would be expressible only by an in-
finite magnitude. The same remark would apply
also to some extent to the labor of superintendence
in some of the more complicated industries, and to
the work of the scientific investigator. Nor could
we escape from this difficulty by endeavoring to
estimate the amount of energy which is on the
average expended in different kinds of labor, rather
than the degree of difficulty which is involved. For
there is no common measure for different modes of
the expenditure of human energy. Moreover, even
if it were possible to evade the difficulties in the
way of the estimation of effort, it would be obvi-
ously unfair to reward labor in proportion to the
effort which it involves, without reference to the
values of the objects which are produced by it —

196 SOCIAL JUSTICE

unless it could be assumed that all forms of labor
in which human beings engage are necessary for
the well-being of society. For it is easily possible
to expend a great deal of effort upon objects which
no sane community would ever think of encouraging ;
and even on objects which are in themselves de-
sirable it is easily possible to expend an amount
of effort which is quite disproportionate to their
value. It would not be wise, therefore, to propor-
tion reward to effort, unless the direction of efforts
to worthy objects were very strictly enforced ; and
this would obviously involve serious difficulties.
Again, it is not at once obvious what forms of
activity ought to be regarded as constituting effort
at all. In our ordinary conception of labor we
think chiefly of muscular effort, with which it is
comparatively easy to deal. Whenever we go be-
yond this, it becomes very hard to determine what
is and what is not labor, and still harder to deter-
mine what is and what is not the product of any
particular labor." 1

In the above Professor Mackenzie has effectively
exhibited the practical difficulties inherent in any
distributive scheme based upon effort. He might
have added also, however, that under such a scheme
it would be necessary, not only to estimate the
amount of effort put forth by an individual in a
given time or upon a given work, but to take into
consideration the amount of effort that may have
been previously exerted by that individual in de-

1 Introduction to Social Philosophy, 2d ed., p. 297.

OTHER CANONS OF DISTRIBUTIVE JUSTICE 197

veloping his natural powers to a higher degree of
efficiency.

The means of measuring effort that are at all open
to estimate are the time employed in labor and the
results obtained. Obviously time alone cannot meas-
ure effort, for work varies in intensity and arduous-
ness. Yet if we attempt to measure it by the results
reached, we are brought back to the labor theory,
with all its practical difficulties and inequities.

Aside, however, from the impossibility of applying
the canon of reward according to effort expended, the
rule is ethically defective. The element of effort, in
truth, must serve rather as the basis for a rule of
obligation upon the agent himself than as a prin-
ciple of desert to be applied by the distributing
power. Every individual is under a moral obliga-
tion to employ his talents to their fullest extent for
the benefit of humanity. This being so, no reward
is needed or indeed demandable; for the performance
of a duty cannot furnish a claim for recompense.
This duty to labor carries with it also, of course, the
obligation to develop to the utmost activities poten-
tially possessed. The right which corresponds to
this duty is not to proportionate reward, but to the
opportunity for development and use of one's capaci-
ties. This means, not merely that there is a negative
obligation upon others and upon society at large to
refrain from such action as will prevent the use and
development of the powers of the individual, but
that, so far as means allow, each person should have
the opportunity of obtaining such implements and

198 SOCIAL JUSTICE

materials of work as are needed. To the student,
for example, this would mean the provision of books,
teachers, educational facilities; to the investigator,
laboratories and apparatus; and to the musician,
musical instruments.

Abstractly considered, the existence of the obliga-
tion upon the individual to work creates in society a
right to compel its performance. Practically consid-
ered, however, the actual exercise of such a right,
except in particular instances, is impossible. In the
first place, it is impossible to determine the character
and capacities of individuals. In the second place,
even if determinable, the proper exercise of at least
all the higher kinds of activities is not subject to any
compulsion that society is able to apply. Further-
more, as Mackenzie points out, such compulsion can-
not be advocated except by those who are willing to
see present property rights seriously interfered with,
if not absolutely destroyed. "For as long as men
are allowed to acquire property, no inducement to
labor can be brought to bear on those who have
acquired it, unless some sort of penalties were to be
devised ; and, so far as one can at present judge, no
system of penalties could be made to work." And
he adds, " What is desirable is rather that those who
are so favorably situated should employ their oppor-
tunities — as some actually do — for the purpose of
rendering to the State or to society such services as
only those who are so favorably situated can render." x

Theory of Needs. — We come now to the last canon

1 Op. cit^ p. 307.

OTHER CANONS OF DISTBIBUnVE JUSTICE 199

of distributive justice which speculative ethics has
suggested, — that of needs. This is the theory which
declares that want-satisfying goods should be given
to those who have the greatest need for them, that
is, to those in whose hands their consumption or util-
ization will be productive of the greatest benefit.

This principle of justice has found a very consider-
able acceptance among communists and socialists.
Thus it is found expressed by Cabet in his Voyage en
Icarie, which bears upon its title-page, "A chacun
suivant ses besoms, de chacun suivant ses forces." It
is also accepted by Louis Blanc, as appears in his
well-known motto, " De chacun selon ses facultfe, &
chacun selon ses besoins" The writer who has most
carefully developed the argument in support of this
principle is, however, Godwin. Godwin's views upon
this point have already been touched upon in the
treatment of the extent to which and the manner in
which the idea of impartiality should enter into the
conception of justice. Godwin's argument, we will
remember, was that, where discrimination is made
between individuals, the sole determining factor
should be the relative values to society of the indi-
viduals concerned. The logical corollary to this is,
that want-satisfying goods should be distributed
according to the relative intensity of the needs
which the individuals concerned have for the com-
modities that are to be distributed.

"To whom," asks Godwin, "does an article of
property, suppose a loaf of bread, justly belong?
To him who most wants it, or to whom the possession

200 SOCIAL JTJ8TICE

of it will be most beneficial ? Here are six men fam-
ished with hunger, and the loaf is, absolutely consid-
ered, capable of satisfying the cravings of them all.
Who is it that has a reasonable claim to benefit by
the qualities with which this loaf is endowed?"
And he answers the question by saying, " If justice
have any meaning, nothing can be more iniquitous
than for one man to possess superfluities, while there
is a human being in existence that is not adequately
supplied with these." Furthermore, Godwin goes
on to say: " Justice does not stop here. Every
man is entitled, so far as the general stock will suf-
fice, not only to the means of being, but of well-being.
It is unjust if one man labor to the destruction of his
health or his life that another man may abound in
luxuries. It is unjust if one man be deprived of
leisure to cultivate his rational powers, while another
man contributes not a single effort to add to the
common stock. The faculties of one man are like
the faculties of another man. Justice directs that
each man, unless perhaps he be employed more bene-
ficially to the public, should contribute to the culti-
vation of the common harvest, of which each man
consumes a share. This reciprocity, indeed, ... is
of the very essence of justice." x

1 Political Justice, Book VIII, Chapter L It would seem that,
logically, all utilitarians should accept this principle rather than that
of equality ; for, as we have already shown, if pleasure be the great
good, the greatest aggregate of pleasure will be the greatest good, and
this will obviously be obtainable only by assigning advantages to
those who have the greatest need for them, and therefore who will
derive from their possession the most intense enjoyment.

OTHER CANONS OF DISTRIBUTIVE JU8TICB 201

It is quite obvious that to the right to receive
according to needs should be joined the correspond-
ing obligation upon individuals to render to society-
services according to capacities possessed. Indeed
we find, as is seen in the formulas of Cabet and
Blanc, that this has been generally recognized.

Considering now the abstract justice of this prin-
ciple of need, when complemented by the obligation
of service, it must be recognized that here at last is
a doctrine to which no ethical objection can be made.
Certainly there is no escape from the logic of Godwin
that, other things being equal, a given commodity or
service should be assigned to that individual who,
among all his fellows, stands most in need of it. Nor
is there any possible qualification that can be placed
upon the general obligation upon each individual to
render to mankind the fullest measure of benefit that
lies within his power.

But in accepting these principles of desert and
service, it is of course to be understood that, in the
eyes of distributive justice, what a man really needs
is only that which will enable him best to fulfil the
moral obligations under which he rests. This being
so, the individual can claim from others, or from
society at large, a satisfaction of his needs only on
the ground that he has the power and disposition to
make their satisfaction ultimately redound to his
own best good and that of humanity. And thus we
are led back to the principle with which we ended
our analysis of the nature of justice ; namely, that a
man's rights are measured by his capacity and dispo-

202 SOCIAL JUSTICE

sition for good, and imply the obligation on his part
to seek that good.

At the same time, however, that we accept this
principle of needs as an ideal rule of justice, we
recognize that it is one even more impossible of en-
forcement by law than any of the other distributive
principles heretofore examined and rejected. The
impossibility of enforcing the obligation of service
has just been adverted to ; while, as regards the dis-
tribution of goods according to needs, the manifest
difficulty is in determining man's infinite needs,
their relative intensities and values. The determina-
tion of relative intensities is sufficiently difficult, for
the most loudly voiced wants are not always the most
urgent needs; but when estimation of the compara-
tive ethical values of desires is attempted, the task
becomes a clearly hopeless one.

This ideal of justice which we have accepted must,
then, be accepted as an ideal for the individual rather
than as one to be enforced by the law. While it
may not furnish definite rules of conduct to the indi-
vidual, it provides at least the touchstone by which
he may guide his whole life. It declares to him the
necessity of striving at all times to realize the best
that is in him, and of aiding, whenever possible,
others to do likewise. It teaches him that wealth,
opportunity, and personal capacity are trusts that
are to be administered in behalf of humanity. It
leaves it, however, to his best judgment to determine,
as each particular occasion arises, what specific duty
is thus implied.

OTHER CANONS OF DISTRIBUTIVE JUSTICE 208

Sight to Subsistence. — A modification of the needs
theory is that which holds that society should guar-
antee to every individual at least the means of main-
taining life. As applied to children, the aged, the
sick, and to all other persons who are disqualified for
work, this means the direct provision by society for
their needs. As applied to the able-bodied, it means
the recognition of a right to labor; that is, not sim-
ply a right to seek employment, but to find it. And
this necessarily means that the State shall provide
work for those who, after diligent search, have not
been able to obtain it at private hands.

This alleged "right to labor" has played, and
indeed still plays, a prominent part in socialistic
thought, and has, moreover, exercised no unimpor-
tant influence upon actual legislation.

The influence of the doctrines of the right to sub-
sistence and of the right to labor in actual legislation
appears in the English poor law of 1601, the French
Constitution of 1791 and 1793, and the Russian civil
code of 5th February, 1794, all of which, as Menger
says, " agree in the declaration that the State or the
local authorities (commune, parish, etc.) are bound to
support the poor or to provide them with work."
" But the right to labor," as Menger hastens to add,
"must be distinguished from the right to relief, even
when this is given in the form of work ; for the right
to labor, as understood by socialists, is of the nature
of a right to any other property, and is neither
founded in liberality on the part of the State nor
implies indigence on the part of the claimant, so

204 SOCIAL JUSTICE

that it must assume the humiliating form of poor-
relief." 1

The origin of the idea of a right to subsistence as
found in socialistic thought, so far as traceable, is to
be found in the writings of Fichte, with whom, as
Bonar says, " the modern socialism of Germany may
be said to begin." * Thus, after declaring that the
first end of man is to live, and that this involves
the right to live by his own labor, Fichte proceeds
to argue that it must be one of the duties of the
State to see to it that this right is rendered possible
of realization. And therefore he concludes: "As
soon as any man cannot live by his labor, that is
withheld from him which was absolutely his own,
and the (social) contract is, so far as he is concerned,
completely annulled. He is from that moment no
longer rightfully bound to recognize any other man's
property. In order that the consequent insecurity
of property may not continue, the rest must, as a
matter of right and of civil contract, give him of
their own, that he may live. For the moment that
any man is in want, no one really owns such part of
his property as is his needful contribution to save
the sufferer from want." 8

Fourier, first among the avowed socialists, empha-

1 Right to the Whole Produce of Labor, p. 14. The right to a mini-
mum of subsistence is recognized in that very interesting cooperatrre
experiment established by M. Godin and known as the Society du
Familistere de Guise. For a detailed account of the organization of
and results reached by this association, see Bulletin No. 6 of the
United States Department of Labor, article by W. F. Willoughby.

9 Philosophy and Political Economy, p. 280.

s Science of Rights, Part II, Book III, § 1. Cf. Bonar, op. ciL, p. 285*

OTHER CANONS OF DISTRIBUTIVE JUSTICE 205

sizes the right of labor, or to subsistence in case of
disqualification for work. 1 Fourier's ideas were re-
peated by Consid&ant in his pamphlet, Thiorie du
droit de propria et du droit au travail (published
1839). "A model of brevity and clearness/' says
Menger, " Consid£rant's pamphlet had a great success ;
if we accept Louis Blanc's cry of the organization of
labor, which he borrowed from the Saint Simonians
and propagated in his famous work, there is hardly
a question so often discussed in the socialist papers
and pamphlets of the Forties as this of the right to
labor. So, when, after the revolution of February,
the proletariat became for the moment the deter-
mining factor, it immediately extorted from the
provisional government the proclamation of Febru-
ary 4, 1848, recognizing the right to labor, which
was afterward incorporated in the French legal code." 9
The alleged attempt on the part of the French
government to apply this principle in practice by
the establishment of national workshops according
to the principles outlined by Louis Blanc, is a matter
of history. We say the " alleged attempt," for there
is good reason for believing that there was no serious
effort on the part of those in power to render the
experiment a successful one. 8

1 He does not appear to hare been acquainted, however, with
Fichte's previous elaboration of this point. Cf . Menger, op. cit. f p. 17.

1 Op. cit., p. 20. The text of the proclamation was as follows : Le
Gouvemement provisoire de la Republique franQaise 8* engage a garantir
V existence de Vouvrier par le travail; 11 8* engage a garantir du travail a
tout lei citoyens."

'The management of this scheme was intrusted to one fimile
Thomas, an enemy of Blanc. Thomas himself says that, when given

206 SOCIAL JUSTICE

The most recent form which this right to subsist-
ence has taken in actual legislation, is insurance of
the working-man against accident, sickness, and
old age. In its complete development, this scheme
of working-men's insurance "comprehends the care
and indemnification of all wage-earning men and
women in case they are incapacitated for work,
either temporarily or permanently, as the result of
an accident or sickness, and the grant to them of a
pension after they are no longer able to work on
account of physical disability or old age. Under it
no one need look forward with apprehension to the
privations consequent upon sickness or accident.
The ever constant dread of dependent old age is
wiped out at a stroke. It constitutes, therefore, the
latest and most radical measure to grant thorough-
going relief in the chief cases of suffering to which
the wage-earning classes are now exposed." *

Already this insurance movement has made great
advances, both in its voluntary and compulsory
forms. Bismarck, to whom more than any one else
is due working-men's insurance as it now exists in
Germany, founded his policy upon an unqualified
adherence to the doctrine of a natural right of all
individuals to demand from the state or society of

the work, he was informed by the government that it was intended
that the plan should fail, and that the theories of Blanc should be
thereby discredited.

1 W. F. Willoughby, WorkinpmeiC* Insurance, p. 1. See this work
for an account of the extent to which this movement has already gone,
not only upon the Continent, but, in the non-compulsory form, in
England and the United States.

OTHER CANONS OF DISTRIBUTIVE JUSTICE 20T

which they are members remunerative employment
sufficient to sustain life so long as they are able-
bodied, and subsistence when they are incapacitated.
Thus in 1878 he declared ; " To sum up my position,
give the laborer the right to labor as long as he is
in health, give him work as long as he is in health,
insure him care when he is ill, and insure him a pro-
vision when he is old." And again in 1884 we find
the Imperial Chancellor replying to an opponent : " I
will answer the first question upon which he touched,
the € right to labor/ Yes, I recognize uncondition-
ally a right to labor, and shall advocate it as long as
I am in this place." *

Criticism. — An abstract right to labor or to a
minimum subsistence must rest upon the same
theoretical basis as the general right to receive
according to needs; for, in fact, it represents but
the demand for the satisfaction of the most acute
of all needs, the need for the wherewithal to sup-
port life. But, as we have already seen, the mean-
ing of this right is that only such desires shall be
taken as denoting true needs as are predicated upon
an ability and disposition to add something to the
good of humanity. From this, then, it necessarily
follows that a right to subsistence or to labor can only
be maintained when it appears that the welfare of
humanity will be advanced by the continued exist-
ence of the individual concerned. Now, inasmuch as
we can conceive of but few cases in which the good

1 Quoted by Menger, Right to the Whole Produce of Labor, p. 12,

208 SOCIAL JUSTICE

of humanity clearly demands the death of an indi-
vidual (except in cases of criminals, which we shall
consider in a later chapter) in actual practice, there
is almost always an actual right in the individual
to have social arrangements so ordered and admin-
istered that he may be guaranteed at least a sub-
sistence so long as he renders to society the services
of which he is capable. But the existence of an
absolute right even to life we deny, as we have
denied all other absolute rights; and with this denial
disappears the right to labor or subsistence as an
absolute right.

Conclusion: Kant, Fichte, Hegel, Green. — The
conclusions to which we have been brought are
such as follow logically from our acceptance of the
principles of idealistic ethics. It is thus but natural
that we should find in the writings of Kant, Fichte,
Hegel, Ahrens, Green, and their followers the nearest
approach to our own views.

The central conception in the views of these phi-
losophers, as to the ethical justification for property,
lies in the relation which private ownership bears to
the realization of the will of the owner. Thus, as
Ahrens says in his Naturrecht : " Law consists in the
group of conditions necessary for the physical and
spiritual development of man, so far as these condi-
tions are dependent on human will. Property is the
realization of the sum of the means and conditions
necessary for the development, physical or spiritual,
of each individual, in quality or quantity conform-
able to his rational wants. . . . For every man

OTHER CANONS OF DISTRIBUTIVE JUSTICE 209

property is a condition of his existence and develop-
ment. It is based on the actual nature of man, and
should therefore be regarded as an original, absolute
right which is not the result of any outward act,
such as occupation, labor, or contract. The right
springing directly from human nature, the title of
being a man is sufficient to confer a right of property."

The claim of right to a given piece of property,
then, according to the idealistic conception, depends
upon the fact that the claimant deems its possession
necessary to him for the realization of his will. This
is what Kant means when he says, "Anything is
mine by right, or is rightfully mine, when I am so
connected with it that if any other person should
make use of it without my consent he would do me
a lesion or injury ; " * and again, " The mode of hav-
ing something external to myself as mine consists in
a specially juridical [ethical] connection of the will
of the subject with that object, independently of
the empirical relations to it in space and in time,
and in accordance with the conception of a rational
possession." *

The position of Hegel as to the rationality of pri-
vate property does not differ essentially from that of
Kant, as may be seen from the following quotations
from his Philosophy of Bight : 8 —

" A person must give to his freedom an external
sphere in order that he may reach the completeness
implied in the idea. . . . The reasonableness of

1 Philosophy of Law, translated by Hastie, p. 61.
• Idem, p. 74. ■ Translated by S. W. Dyde.

210 SOCIAL JUSTICE

property consists in its satisfying our needs. ... It
is in possession first of all that the person becomes
rational." 1 " When I, as a free will, am in possession
of something, I get a tangible existence, and in this
way first become an actual will. This is the true and
legal [ethical] nature of property, and constitutes its
distinctive character." * " The doctrine that the foun-
dation of property lies in the will, that property is
' realized will,' is true enough if we attach a certain
meaning to ' will ' ; if we understand by it, not the
momentary spring of any and every spontaneous
action, but a constant principle, operative in all men
qualified for any form of society, however frequently
overborne by passing impulses, in virtue of which
each seeks to give reality to the conception of a well-
being which he necessarily regards as common to
himself with others." 8 " The rationale of property
... is that every one should be secured by society in
the power of getting and keeping the means of real-
izing a will which in possibility is a will directed to
social good." 4

In the lectures of T. H. Green on the Principles of
Political Obligation, we find the thought of Kant and
Hegel substantially reproduced. The following ex-
tracts will sufficiently indicate this : —

" Appropriation," he says, "is an expression of
will ; of the individual effort to give reality to a con-
ception of his own good ; of his consciousness of a
possible self-satisfaction as an object to be attained.

* Op. «*., § 41. ' Op. ciL, f 217.

* CJp. cfc, § 45. * Op. ciL, § 221.

OTHER CAKON8 OF DISTRIBUTIVE JUSTICE 211

It is different from mere provision to supply a future
want. Such provision appears to be made by certain
animals, e.g. ants." But in individuals appropriations
"are not merely a passing employment of such
materials as can be laid hands on to satisfy this or
that want, present or future, felt or imagined, but
reflect the consciousness of a subject which distin-
guishes itself from its wants." x

"The rationale of property . . • requires that
every one who will conform to the positive condition
of possessing it, viz. labor, and the negative condi-
tion, viz. respect for it as possessed by others, should,
so far as social arrangements can make him so, be a
possessor of property himself, and of such property
as will at least enable him to develop a sense of
responsibility, as distinct from mere property in the
immediate necessaries of life/' *

As regards private ownership of land in particular,
Green has the following to say : u The only justifica-
tion for this appropriation [of land], or for any other,
is that it contributes on the whole to social well-being,
that the earth as appropriated by individuals under
certain conditions becomes more serviceable to society
as a whole, including those who are Aot proprietors
of the Soil, than if it were held in "common. The
justification disappears if these conditions are not
observed." 8 " But it is important to bear in mind
that the question in regard to land stands on a
different footing from that in regard to wealth
generally, owing to the fact that land is a particu-

1 Op. cit., § 213. * Op. cit., S 229. • Op. cit n | 231.

212 SOCIAL JUSTICE

lar commodity limited in extent, from which alone
can be derived the materials necessary to any indus-
try whatever, on which men must find house-room if
they are to find it at all, and over which they must
pass in communicating with each other, however much,
water or even air may be used for that purpose. These
are indeed not reasons for preventing private property
in land or even for bequest of land, but they necessi-
tate a special control over the exercise of rights of
property in land." *

The all-important result which follows from the
basis which these writers, and which we, following
them, give to private property is that, while the
rightfulness of property may in some cases be denied
where its legality is now recognized, in those cases
in which private ownership is authorized a far deeper
moral sanction is furnished than could ever be
obtained from such empirical facts as occupation or
labor. All private property now becomes in essence
a trust, and implies an obligation upon the owner to
utilize the advantages which its possession brings for
the promotion of the true welfare of himself and
humanity. And thus we accept as a correct state-
ment the recent declaration of Wundt, that "only
that kind of property is morally justified which is
used for moral purposes. Whatever idle or waste-
ful use of property exists, by throwing it away for
selfish purposes, without any consideration for the
welfare of society, is immoral."

But, as in the case of our definition of justice in

*Op.cit.,% 231.

OTHER CANONS OF DISTRIBUTIVE JUSTICE 218

general, there are probably those who will say:
"AH this is true enough, but it is very vague.
You say that property and, in fact, all advantages
and benefits are to be distributed according to
needs. But how are we to know in any particular
case just what justice demands ? " To this we can
but repeat that, from the essential nature of the case,
such explicit guidance is beyond the power of any
system of ethics. The life which we lead is a com-
plex one, and the realization of one's highest self
is not a simple matter. It is one that requires our
whole thought and highest effort. No simple thumb
rules can guide. All, then, that we can say — all
that any ethical teacher, whatever his doctrines,
can say — is that, in each instance where an act is
required, one must examine it as to all its possible
results, proximate and ultimate, objective and sub-
jective, and then ask himself whether the given
line of conduct is more calculated than any other
possible line of conduct to advance the world toward
the realization of the highest ethical perfection.

PABT II

CHAPTER Vm

THE BIGHT OF COERCION

Ik the preface to his Philosophy of Right
Hegel says: "Man cannot be limited to what is
presented to him, but maintains that he has the
standard of right within himself. He may be subject
to the necessity and force of external authority, but
not in the same way as he is to the necessity of
nature, for always his inner being says to him how
a thing ought to be, and within himself he finds
the confirmation or lack of confirmation of what is
generally accepted. In nature the highest truth is
that a law is. In right a thing is not valid because
it is, since every one demands that it shall conform
to his standard. Hence arises a possible conflict
between what is and what ought to be; between
absolute unchanging right and the arbitrary decision
of what ought to be right."

Thus, as Hegel goes on to show, this unique privi-
lege which belongs to man, his rationality, seems
inevitably to lead to strife and discontent. Yet, if
we are true to ourselves, we must " openly meet and
face our reason and consider the rationality of
right."

316

216 SOCIAL JUSTICE

Never more, perhaps, than at the present time, has
there been need for the firm fixing in men's minds of
logical principles of justice, in accordance with which
they may test the rightfulness of existing social and
political institutions and standards. For never before
has the critical spirit been more widespread. Now, as
in the sophistic period of Greece, the binding power
of tradition and the necessarily sacrosanct character
of the demands both of State and Church are ques-
tioned. All things are tested, and only those pro-
nounced good which are found rational, consonant
with the critic's own canons of truth and reason.
Hence the danger lest this decentralization or indi-
vidualization of moral authority result in a decen-
tralization of moral obligation which, if not regulated
by well-established principles of conduct, will give
free play to individual prejudices or passions, with
a resulting loosening of social and political bonds.

This danger assumes a very grave form when it
is united, as it sometimes is, to that other doctrine
which declares that present social and economic
conditions are inherently bad, as providing for a
regime in which the many are pitilessly sacrificed
for the good of the few. In the entertaining but
sophistical work of Mr. Kidd entitled Social Evolu-
tion, the attempt is made to give to this declaration
a pseudo-scientific form, and one apparently founded
on the prevalent evolutionary doctrines of struggle
for existence and survival of the fittest. As declared
by Mr. Kidd, self-interest would urge the majority
to put an end, if possible, to such a condition of

THE BIGHT OF COERCION 217

affairs, even though to do so would possibly be to
sacrifice the welfare of future generations. Why
men have not done so, he says, has been due to the
teachings of the Church, which has promised greater
joys in a world hereafter, and enjoined subordination
of self to society as the divinely appointed means of
attaining them. In other words, it is argued that a
supernatural sanction to social good has been made
to overrule the purely rational demand for self-good.
The necessary implication from this is that, with
the waning power of the Church to govern men's
temporal action by simple dicta, and the correspond-
ing increase in the tendency to elevate right reason
as the touchstone of all obligation, the present regime
will be subjected to greater and greater criticisms
and attacks. 1

The assumptions made in the above, both as to
the essential irrationality of social subordination and
as to the peculiar characteristics of religion are
unwarranted ; but the fact that they are made and
widely accepted serves to show one of the tendencies
of the thought of the age. The only way in which
such appeals to the reason of man can be met is by
the counter demonstration of the rationality of the
doctrines and the institutions which they decry.

Coercion means restraint, the hindrance of one's
freedom of action. Before, then, we can consider
coercion, we must determine what we mean by free-
dom. Professor Hyslop points out in his Elements of
Ethics that the idea of " freedom " is susceptible of

1 We shall return to Kidd's theories in our next chapter.

218 SOCIAL JUSTICE

three distinct meanings. To these he applies the terms
"Velleity," "Spontaneity," and "Liberty." Velleity
refers to that capacity of alternative choice which
in ethical philosophy has received the name " free-
dom of will." Spontaneity refers to subjective causa-
tion ; that is to say, to the initiation of one's own
act whether consciously or unconsciously originated.
Liberty is deflned as exemption from external re-
straint — a restraint which "may be either physi-
cal or social, the latter being meant to include all
political restriction upon human action." Professor
Hyslop continues : " We call a person free, or assert
that he has liberty, when external forces either do
not determine his action or do not determine the cir-
cumstances limiting the alternatives between which
he has to choose. ... A man who can do as he
pleases without suffering a penalty for it is said to
have his liberty, or to be free. . . . Climate, gravita-
tion, seasons, geographical conditions, political insti-
tutions, economic conditions, and a thousand other
influences are at work to limit the satisfaction of
desire. To that extent we can say that we are not
free, whereby we mean merely that we cannot do
as we please without incurring disagreeable conse-
quences. Hence freedom or liberty, used to describe
exemption from these restraints, means only a condi-
tion in which we act according to our natural desires.
The term is used most frequently to describe a polit-
ical condition, — political liberty, whereby we mean
exemption from the laws, customs, and restraints
which put one man in subjection to the will of

THE BIGHT OF COERCION 219

others. But in this sense no man is absolutely free.
Any one is under some restrictions, and perhaps
ought to be. They do not compel him to act in a
given way, but make the alternative so unpleasant
that none except the permitted course will probably
be chosen. In this sense freedom or liberty is a
privilege rather than a power, a privilege to act
with impunity rather than the faculty of alternative
action. Thus a man is not at liberty to commit
murder and escape the risks of punishment, but he
has the power to commit murder and to accept the
penalty, or not to commit it, and thus to be free
from risk." *

Now, it will not be questioned that the essence of
morality consists in the use of one's faculty of alter-
native choice. But if this be so, neither the State
nor any other external power is able to limit one's
moral freedom, — to restrain the power of conceiv-
ing ends, and directing one's conduct to the reali-
zation of the chosen end. Certain pleasant or
unpleasant results may be made consequent upon
the performance of particular acts, but the choice
itself, the exercise of the faculty of velleity, cannot
be determined or controlled. Thus the citizen is
ever at liberty to choose whether or not he will obey
the commands of his government, or conform to the
requirements of social conventions; though, to be
sure, in arriving at his decision he has to take into
account the penalties which the State or public opin-
ion attaches to disobedience to its orders. But the

1 The Elements of Ethics, p. 153.

220 SOCIAL JUSTICE

decision that he does arrive at, whether of a positive
or negative character, is his own decision, based
upon all pertinent circumstances, and he is morally
responsible therefor.

In exactly the same way a man has the power of
determining whether or not he will leap from some
great altitude, or perform any other dangerous act.
In such cases his actual choice is of course practically
controlled by the fact that bodily injury will result
in the one case and not in the other. Yet there is
no one would maintain that it is immoral, or at least
needful of moral justification, that natural, i.e. physi-
cal, laws should impose this limitation upon one's
desire freely to exercise his own muscular powers.

The thought immediately arises, however, that
there is an essential distinction between the re-
straints and penalties which nature imposes and
those which human authority creates. There is
indeed a difference, and a very important one. This
is, that the coercion of nature is beyond our control,
and therefore one for which no human being or
beings can be held responsible; whereas social and
political restraints are artificially created, and there-
fore, as to any particular exercise of them, within
our power either to limit or abolish. Nevertheless,
looked at generally, in our world at least, absolute
and universal freedom from restraints humanly im-
posed is as impossible as release from the limitations
of physical environment.

Were we in a world in which the apparent inter-
ests, and therefore the desires, of individuals never

THE RIGHT OF COERCION 221

conflicted, it would be possible to imagine a society
in which human coercion of every form should be
absent. For under such circumstances no individual
would even want to do anything that any other indi-
viduals would object to his doing, or would desire
others to do anything that such others would not
themselves desire to do. As soon, however, as con-
flicts of interest arise either between different indi-
viduals, or between particular individuals and the
society of which they are members, or between dif-
ferent societies or States, the appearance of restraints
humanly imposed becomes a necessity. For where
interests conflict, desires conflict ; and where desires
conflict, all cannot be satisfied. Either each will
have to yield in part, or one or more will have to
give way completely to the others. Thus it follows
that if one individual claim a "right" to demand
that others shall refrain from certain actions which,
though prompted by their own natural desires, inter-
fere with his own freedom, those other individuals
cannot be considered as free from all limitations
other than those imposed by physical laws. The
assumption, therefore, of an a priori freedom, or lib-
erty in its socio-political sense, is self-contradictory.
To maintain it as to the one individual is to deny it
as to all other individuals ; while to maintain it as
to all individuals (which, if it be a moral right, would
be logically necessary) is to deny it as to any particu-
lar individual.

In fine, then, in any such world as we now live in,
the question is not as to whether any human coer-

SOCIAL JUSTICE

cion shall exist, nor even as to how much of it there
shall be. For the amount of restraint that must exist
is absolutely fixed by the extent to which interests
conflict We can decrease socio-political restraints
only as we harmonize interests. Taking, then, any
given society of men in which interests have not
been absolutely harmonized, the sole questions that
can rationally be asked are as to which of conflicting
desires shall be satisfied, and what form the neces-
sary restraint shall take.

When we consider the right of the State to be in
this light, we see that the alternative is not between
coercion and freedom, but between coercion by law
and coercion by individual force.

The individual is not endowed with a natural right
to freedom. Nature gives to him only powers, and
in any non-political state the amount of compulsion
that he would suffer at the hands of others would
far exceed that exercised by any government. By
the creation of a political authority, there is merely
a substitution of a general, definite, paramount force
for an uncertain, arbitrary, individual force. With
the social life of men, antagonism between their
respective interests and spheres of activity is a meta-
physical necessity. Absolute freedom of every one
to do as he likes is, therefore, out of the question.
The only question is whether these conflicts shall be
settled by the particular strength given by nature to
each individual, or whether the compulsion shall be
supplied by a general authority created by a union
of strengths.

THE RIGHT OF COERCION 223

This is sufficient to dispose of the argument that
men are born free, but are by the establishment of
civil government reduced to servitude. But we may
go farther than this, and declare that in an original
and lawless state of nature such as is posited by
some, not even the thought or idea of a right to free-
dom from human coercion could arise.

In another work, where I have examined the rea-
soning contained in the doctrines of " natural law "
and of " social compact/' I have written substantially
as follows : —

" Having now reduced so-called Natural Law to its
proper ideal, relative, moral character, we have finally
to show that, even in this sense, the term is not
applicable to any form of regulation that can con-
ceivably exist in a completely non-social, non-politi-
cal " State of Nature " such as is necessarily postulated
by Contract writers as the condition from which the
establishment of political life relieved mankind.
That is to say, we have to demonstrate that, when
in a " State of Nature " men are said to be ruled by
" Laws of Nature," these laws cannot be held to be
of even a moral validity. That, therefore, when the
original contract is held to rest upon, as Hobbes says,
that Law of Nature, ' that men perform their cove-
nants made/ 1 an assumption is made that cannot be
logically justified.

"That this is so, we may see by picturing again to
ourselves just what would be the condition of man-
kind in a completely non-political state. In such a

1 Leviathan, Chapter XV.

224 SOCIAL JUSTICE

'State of Nature,' there is, ex hypothesis an utter
and entire absence of human association and concert
of action, the only rules for the regulation of conduct
that can possibly obtain being Natural Laws, as used
in that sense which identifies them with the natural
instincts of all living beings, men and brutes alike,
to maintain their own existences, and to satisfy the
desires that their own natures give rise to. Under
such a regime, passion and momentary inclination
necessarily have full sway, and an unmitigated and
pitiless struggle for existence prevails.

" It need not be said, then, that under such condi-
tions there cannot arise in the minds of individuals
any recognition of 'rights' on the part of other
individuals which should be respected by them inde-
pendently of their power to maintain them. Thus
defining 'right' as a man's capacity of influencing
the acts of another by means other than his own
strength, we may agree with Green that 'natural
right as right in a State of Nature which is not a
state of society, is a contradiction. There can be no
right without a consciousness of common interest
on the part of members of a society. Without this
there might be certain powers on the part of indi-
viduals, but no recognition of these powers by others
as powers of which they should allow the exercise,
nor any claim to such recognition ; and without this
recognition or claim to recognition there can be no
right.' x

1 T. H. Green, " Lectures on the Principles of Political Obligation,"
Philosophical Works, Vol. II, p. 354.

THE BIGHT OF COERCION 225

u In the absence, then, of ( rights/ as distinct from
1 powers/ the term i morality' can have no applica-
tion to a State of Nature as above considered. For
morality, in at least its social aspect, has no other
basis than the recognition and respect of others'
rights. The same is true of the term ' justice/ by
which is meant the giving to each one his proper
* rights.' Hence follows the truth of the thesis
stated above, that in such a non-civic state there can-
not arise even the sense of a moral obligation to
observe covenants entered into. In fact, the mere
propounding of the question, 'Why should I be
forced to do this or that?' implies that I claim a
certain freedom that should be respected by others
independently of my power to maintain it." l

In that extremely interesting work of Mr. W. S.
Lilly entitled Eight and Wrong, it is said: "Un-
questionably, it is society alone that gives validity
to right, for man is, in Aristotle's phrase, a political
animal. If we follow the historical method only,
we must pronounce the birthplace of right to have
been the family, from which civil polity has been
developed. But if we view the matter ideally, we
must say that the experience of the race is merely
the occasion, not the cause; it does not create, it
merely reveals right. The social organism exhibits
that which lies in the nature of man, deep down
in the inmost recesses of his being, but which could
never have come out of him in isolation. The idea
of right unfolds itself in history as the vivifying

1 The Nature of the State, pp. 106-110.

226 80CIAL JUSTICE

principle of those public ordinances and political
institutions whereby we live as civilized men; the
justification of the common might which without it
would be mere brute force."

Mr. Lilly has here stated in his usual delightful
style an essential truth and yet, we fear, enveloped
it in some ambiguity by the use of the abstract term
" right " to express two essentially different things.
We may, and in fact must, grant that there does
exist, apart from all human creation or control, an
eternal distinction between right and wrong, and
that similarly there are certain eternal canons of
conduct, or criteria, in accordance with which the
morality and justice of every act is to be finally
determined, and that these principles may be sub-
sumed under the abstract term "right." In this
sense, society or State does not create right, but
only renders more possible of realization the practi-
cal principles which are to be deduced from its
recognition. But rights, that is, claims of the indi-
vidual to certain spheres of activity within which
he shall not be limited by other individuals, —
these are not only rendered possible of realization
by society and the State, but they are created by
society and the State, and cannot be conceived as
existing either actively or potentially apart from the
social and political body. They have a significance
only in connection with social and political aggre-
gates. Eighty as we have defined it, may exist apart
from human association ; rights, never.

In the work from which I have above quoted, I

THE BIGHT OF COERCION 227

concluded my argument by declaring that " we thus
find that the demand for a moral justification of the
State is an unnecessary one. If political govern-
ment does not render the individual less free than
he would be without it, its authority does not require
a moral justification. There is no presumption of
unwarranted interference to be rebutted." *

The accusation has been made by an able critic
that there is a confusion of thought in at least some
of the points made in the foregoing paragraphs.
After quoting with approval the assertion that, para-
doxical as it may seem, it is true that freedom exists
only because there is restraint, this critic continues :
" But because this is so, and more liberty is created
than is abridged by the State, it does not follow that
the problem he set out to resolve can be disposed of
by saying that it was falsely stated, and that a moral
justification of the State is shown to be unnecessary.
The liberty that is the fruit of political organization
is not that freedom of choice inherent in morality
which as more or less limited by the State (so far
as it is an authoritative institution) alone gives rise
to any fundamental moral problem. There are really
two senses of the word 'freedom/ According to
one, we are free when we can do what we will. Ac-
cording to the other, we are free when we can choose
what we will do. The one relates rather to the act
externally considered ; the other to the psychological
conditions antecedent to the act (neither, we may
add, involving any metaphysical 'freedom of the

1 The Nature of the State, p. 111.

228 SOCIAL JUSTICE

will'). Because positive or external freedom is in-
creased by the State, it does not follow that freedom
in the other sense is not abridged or, in some cases,
denied. The individual does not choose what taxes
he will pay, but he has to pay them. Both as to
the amount and as to the paying, he is subject to an
external authority, and the problem from the ethical
side is, How is this authority to be justified ? " 1

As for the criticism that a discrimination has not
been made between the two senses of freedom — free-
dom to do and freedom to choose — it would appear
that the critic is himself confused. We admit that
there is a real distinction between doing and choos-
ing, and that morality attaches to the latter rather
than to the former. But this freedom of choice, as
subject to ethical estimate, can only refer to that
capacity of alternative choice of ends to which we
have applied the term " velleity," and over which, as
we have already said, the State can have no possible
control. If an act be brought about by physical
force, actually and coercively applied, as where one
by brute strength compels another against his will
and against his physical resistance to commit a cer-
tain act, that act certainly is such a compelled act as
releases the compelled one from all moral responsi-
bility. But if the compulsion consist merely in the
threat of certain penalties in case of its non-perform-
ance, there still remains a moral responsibility upon
the individual, though it is a responsibility that has

1 International Journal of Ethics, October, 1896, p. 116. Review by
Mr. William M. Salter of my book, The Nature of the State.

THE BIGHT OF COERCION 229

to be determined in the light of the new condi-
tions which have been introduced by the sanction
of the State and the threat of punishment in case
of disobedience.

It must be admitted, however, that the assertion
that there is not needed a moral justification for the
control of the State was too baldly stated. Still, I
think that the argument which it concluded made it
sufficiently plain that what was there intended to be
maintained was that the demand for an abstract or
a priori justification of the right of State control, or
in fact of any form of coercion, is an illegitimate
one. To ask the question whether the State has a
right to be, without reference to a particular State,
is as little sensible as to ask whether a picture is
beautiful without designating some particular one to
which the judgment is to be applied.

It undoubtedly appears to most of us as beyond all
serious question that all States are justified — that
the existence of even the very worst of them is
better than would be the anarchical condition that
would result from its absence; but there is no theo-
retical impossibility of a State lacking such a rational
basis. The existence of any given State as actually
controlled has or has not a moral justification, accord-
ing to whether or not its activities tend upon the
whole to promote the realization of the moral ideal.
The only way in which the moral element enters is
as to the manner in, and the extent to, which the
power of the State is exercised. The "code of
morality " of a given community, as including those

280 SOCIAL JUSTICE

rules of human conduct that satisfy the general sense
of moral right and justice of that community,
whether founded on eternal, immutable principles of
right and wrong, upon the dictates of man's con-
science as completely autonomous, upon reason, or
upon utility as revealed by inherited experience, is
necessarily relative to the state of enlightenment,
character of religion, economic conditions, and civili-
zation in general of the particular people by whom
its provisions are recognized. Taking any code of
morality at any one time, the laws of a State are in
that light morally justified just to the extent to
which they coincide with its provisions. But even
in this respect it is to be noticed that in approximat-
ing law to ethical commands reference must be had
not only to the abstract ethical end to be obtained,
but to the practical possibility of attaining that end
by the physical compulsion supplied by the law and
the very rough means at its disposal for evaluating
moral merit or guilt. Also, the still further question
is to be considered, whether or not the substitution
of legal compulsion for voluntary action, while pos-
sibly securing more general conformity to the princi-
ple indicated, may not lessen men's feeling of moral
obligation in the premises. For where men obey
from necessity the ethical duty is soon forgotten.

In thus bringing a particular State to the bar of
moral criticism, it is rather its activities than its own
right to existence which is brought to trial. The
right to be of the political authority itself is not in
issue, for, as abstractly considered, that is, apart from

THE BIGHT OF COERCION 281

any particular form of organization or manner of
operation, there is no basis upon which a judgment
may be founded. It is not until the State manifests
its power and authority that material is afforded to
which moral estimates may be applied. Further-
more, it is to be remarked, though it can hardly be
necessary to do so, that in considering the morality
of a command of the State there is no pretence that
the fact that it is the command of the State enters
in any degree as an absolutely determining factor.
There is only to be asked by the individual in each
particular case whether he, as a morally responsible
person, should obey or disobey. The act has a moral
or immoral character only as to the individual, and
what moral responsibility there is exists only for him.
When the State, however, has commanded a cer-
tain line of conduct, that fact, though not determi-
nant of the morality of the command abstractly con-
sidered, is yet one which the individual is morally
bound to consider in determining what his own
actions shall be. While it must be held that the
individual has at all times the moral right — nay,
that he is morally bound — to refuse obedience to
those laws which he deems to be unjust or immoral
for any reason, yet he is also bound to take into con-
sideration, in estimating all the consequences of such
an act, that disobedience to a command of the State
will tend to weaken to some extent the reverence for
law in general, and will thus have an influence in dis-
solving those social and political bonds that in the
aggregate promote to such a degree the realization

282 SOCIAL JUSTICE

of morality as a whole. The moral right of resistance
as well as of revolution cannot be denied, but it is
a right only to be justified by a consideration of all
the consequences, proximate and ultimate, individual
and social, which attend its exercise.

The question is sometimes asked whether the State
itself has moral duties. This may be answered in
the negative. Considered in itself the State is not
a moral entity; it owes no responsibility to any
superior being or power; it has no conscience. Nor
has a People, when considered as a political unity as
distinguished from the arithmetical sum of its con-
stituent individuals. Morality applies only to human
individuals. These have moral duties of a threefold
character : First, such as belong to them as indepen-
dent and distinct individuals ; that is, the duties
which they owe to themselves alone. Secondly, they
have duties as social beings; that is, duties not
directly connected with personal matters, but with
the welfare of the society to which they belong.
Thirdly, they are under moral obligations that arise
from their society being politically organized; that
is, constituting a State. From the common recogni-
tion by individuals that it is their duty to make the
State subserve moral ends, there is created a moral
ideal for the State which does not correspond exactly
with the ideal of any one individual, but is rather a
sublimation of all individual ideals. But the respon-
sibility of seeing that this moral ideal is striven for
rests ultimately with the individuals. Not all con-
tribute alike to the formation of the will of the

THE BIGHT OF COERCION 233

State, and hence, just to the extent to which one does
contribute by his influence to the formation of an
effective political opinion, he is under moral obliga-
tion to make that political opinion moral in character
and directed to the securing of the highest possible
ethical ideals.

The moral responsibility for all political action
may not, therefore, be shifted, either in whole or in
part, upon an abstract political being, but rests wholly
upon the individuals, whether they be public officials
or private citizens ; and this in exact proportion not
only to the extent to which they actually do have an
influence in directing the course of public affairs, but
to the extent to which it lies within their individual
powers, should they use their real opportunities, to
direct the power of the State to the attainment of its
proper ends.

Repeating, then, by way of summary, the general
results of our inquiry regarding the rightfulness of
political restraint, we may say that freedom and
restraint are but the obverse sides of the same shield,
— that freedom has no meaning apart from restraint,
and that thus metaphysically as well as practically
the two conceptions are united. Just as the individ-
ual has no " right " to freedom as opposed to state
constraint, so the State has no general right (except
in the legal sense) to compel the individual. The pre-
sumption is neither way. In practice the assertion
of an authority whether by the individual or by the
State is limited by physical might, and in each indi-
vidual case where there is a conflict, it is a proper

284 SOCIAL JUSTICE

subject for ethical inquiry as to whether the act com-
manded by the State or desired by the individual is
morally the preferable. There is no distinction in
ethical kind between the two authorities. The exist-
ence of the State can only be morally justified if, as
a whole, its influence tends to promote the realization
of moral ends. It is not to be justified in itself ; that
is, independently of the manner in which its might
is actually exercised. Considered abstractly as a
political entity, as simply an institution, it neither
possesses moral responsibility, nor can it either deter-
mine the morality of an act or limit the moral free-
dom of the individual. Resting upon no superhuman
basis, it cannot legislate in the ethical field. Unre-
lated to any superior being, and having no concrete
existence apart from the individual beings of whom
it is composed, and having a continued identity only
as conceived apart from them, it is necessarily with-
out moral responsibility. Limited in its means of
coercion to physical penalties, it cannot limit man's
velleity or freedom of alternative choice.

There are two distinct ways in which we may
attempt the positive justification of a given social
control. The one is utilitarian, the other transcen-
dental. The one denies outright that self-interest,
when enlightened, is an anti-social motive ; the other
seeks to show that man, by his very nature, is actu-
ated by certain motive forces which can only find
free play, and is destined to a certain end which can
only be approached, in a social state in which men
practice mutual forbearance toward one another, and

THE BIGHT OF COERCION 235

recognize a general subordination to some sort of
social or political control. Comte, Mill, and Spencer
are probably the leading representatives of the first
method; Hegel, Green, and their idealistic followers
the chief exponents of the second. Both schools
admit that the individual reason must, in the last
resort, be the absolute judge of the rightfulness of a
given control which is exercised over him, but they
differ both as to character and as to the origin of the
motives which should control that judgment. Ac-
cording to the positivists, social relationships provide
not only the medium in which morality is exercised,
but the instruments through which the moral instinct
is itself created. The governing motive is held to be
always utilitarian, though not in the bald Bentham-
istic sense, but in the universalistic sense of Mill, or
the rationalistic, evolutionary sense of Spencer. Ac-
cording to the idealists, or transcendentalists, on the
other hand, man is by nature, potentially at least, a
moral being, and the social state, though not the
creator of the sense of ethical obligation, furnishes
the means through which alone is presented the
possibility of its concrete application. The motive
which they predicate is self-realization, the attain-
ment of that personal perfection the desire for the
attainment of which is innate in man, as is discov-
erable by a metaphysical inquiry into his spiritual
and intellectual nature, and his relation to the
Divine or Absolute Reason.

A justification of a right of control, whether by
society, the State, or the individual, must take the

236 SOCIAL JUSTICE

form of a discussion of the arguments advanced in
support of these two positions as just described.

The one idea that none of us can get away from
is that, abstractly considered, freedom to act is
preferable to coercion, whether actual or threatened.
And we are quite right in this, for coercion, or a
threat of a penalty which amounts to coercion, is
necessarily an evil, for its effect is to hinder the
coerced one from doing that which he otherwise
would have desired to do; and to be thwarted in
one's desires is painful, and pain, we must concede, is
an evil. Therefore Fitzjames Stephen is not quite
correct when he says that to ask whether freedom be
a good or a bad thing, without first stating for what
purpose it is to be used, is like asking whether fire is
good or bad. 1 Coercion, whatever may be its ulti-
mate effect, is in its immediate application produc-
tive of pain.

Admitting all this, however, — admitting that
coercion necessarily causes pain, and that pain is an
evil, — we may still ask whether pain is the only or
the greatest evil. Utilitarians say that it is. If
we grant this to be so, we are still not excluded
from the possibility of justifying the right of a
State to be. For, as we have already shown, coer-
cion, and a great deal of it, necessarily exists in a
non-civic state. If, then, it be shown, as of course
it can be, that a given political power, by prevent-
ing individual lawlessness, lessens coercion by a

1 The statement is made somewhere in his Liberty, Equality,
Fraternity.

THE BIGHT OF COERCION 237

greater amount than it increases it by exaction of
obedience to its own commands, the existence of
such a State, viewing it as a whole, and from a
neutral standpoint, 1 is justified upon purely utilita-
rian grounds.

There are, however, several observations to be
made regarding a State so justified. In the first
place, when looked at in this light, the existence
of a political power assumes the form of a neces-
sary evil, and as such, it would seem that, logi-
cally, its activities should be kept within the
narrowest bounds possible. For if the State's coer-
cion is tolerated only because it prevents a greater
private coercion, then anything that goes beyond
this purely negative function will add to, rather
than subtract from, the aggregate of coercion to
which the citizen is subjected. This is precisely the
position we find Bentham and J. S. Mill assuming. 9

Bentham begins by defining " liberty " as simply
being left free whether to do good or evil. Those
who declare that liberty consists merely in the right
of doing everything which is not injurious to another,
he says, pervert language; they refuse to employ
the word " liberty " in its common acceptation. " Is
not the liberty to do evil, liberty ? " he asks. " If
not, what is it?" Law, therefore, except where
merely declaratory, he asserts, is necessarily contrary

1 This qualification, " from a neutral standpoint," is, as we shall
see, important.

* Spencer takes practically the same position, but founds it upon
different reasoning. We shall have occasion to consider his theories
upon this point in our next chapter.

288 SOCIAL JUSTICE

to liberty. And he continues: "But every restric-
tion imposed upon liberty is subject to be followed
by a natural sentiment of pain, greater or less ; and
that independently of an infinite variety of incon-
veniences and sufferings, which may result from the
particular manner of this restriction. It follows,
then, that no restriction ought to be imposed, no
power conferred, no coercive law sanctioned, without
a sufficient and specific reason. There is always a
reason against every coercive law — a reason which,
in default of any opposing reason, will always be
sufficient in itself j and that reason is, that such a
law is an absolute attack upon liberty. He who
proposes a coercive law ought to be ready to prove,
not only that there is a specific reason in favor of it,
but that this reason is of more weight than the
general reason against every such law." 1

Mill's position is stated in his essay On Liberty.
After justifying the existence of the State by assert-
ing that " all that makes existence valuable to any
one flepends on the enforcement of restraints upon
the actions of other people," he says : " The object
of this essay is to assert one very simple principle, as
entitled to govern absolutely the dealings of society
with the individual in the way of compulsion and
control, whether the means used be physical force in
the form of legal penalties, or the moral coercion
of public opinion. That principle is, that the sole
end for which mankind are warranted, individually
or collectively, in interfering with the liberty of

1 Principle* of the Civil Code, p. 94.

THE BIGHT OF COERCION 239

action of any of their number, is self-protection.
That the only purpose for which power can be right-
fully exercised over any member of a civilized com-
munity, against his will, is to prevent harm to others.
His own good, either physical or moral, is not a
sufficient warrant. He cannot rightfully be com-
pelled to do or forbear because it will be better for
him to do so, because it will make him happier,
because, in the opinion of others, to do so would be
wise or even right. These are good reasons for
remonstrating with him, or reasoning with him, or
persuading him, or entreating him, but not for com-
pelling him, or visiting him with any evil in case he
do otherwise. To justify that, the conduct from
which it is desired to deter him must be calculated
to produce evil to some one else. The only part of
the conduct of any one, for which he is amenable to
society, is that which concerns others. In the part
which merely concerns himself, his independence is,
of right, absolute. Over himself, over his own body
or mind, the individual is sovereign." 1

When Mill in the next to the last sentence uses
the expression " of right," he is of course not refer-
ring to " natural right," for this idea he has, or at
least declares that he has, abandoned as invalid. He
must therefore mean, of right as determined by utilii
tarian canons. And this being so, his conclusion
that what concerns wholly the individual himself
cannot of right be controlled by others, must be
founded on the assumption that, however well

1 Op. tit., Chapter L

240 SOCIAL JU8TICE

wishing this coercing power, the individual is the
only one absolutely qualified to determine what line
of conduct will produce for him the greatest amount
of happiness. This, as a mere matter of fact, is
very doubtful. That an individual can tell for him-
self what act will be immediately productive of the
greatest pleasure may possibly be true. But that he
can determine what, remote as well as proximate
consequences being considered, will be the relative
happiness-producing powers of different modes of
life, we know to be false, as our conduct, for instance,
in relation to children and the weak-minded con-
stantly proves. Mill, in fact, recognizes this himself,
for he says : " It is, perhaps, hardly necessary to say
that this doctrine is meant to apply only to human
beings in the maturity of their faculties. We are
not speaking of children or of young persons below
the age which the law may fix as that of manhood
or womanhood." Nor does it apply, he says, to the
backward races. "Despotism," he declares, "is a
legitimate mode of government in dealing with bar-
barians, provided the end be their improvement and
the means justified by actually effecting that end.
Liberty, as a principle, has no application to any
state of things anterior to the time when mankind
have become capable of being improved by free and
equal discussion."

Fitzjames Stephen, in his Liberty, Equality, Fret-
ternity, is quick to seize upon these admissions of
Mill, and to show that, in making them, he practi-
cally yields the whole question. For, as Stephen

THE BIGHT OP COERCION 241

points out, no one attempts the justification of coer-
cion of the individual for the sake of that individual's
pleasure except upon the ground that the coercing
power is wiser than the coerced one as to what, upon
the whole, will be productive of the greatest good.
This superior wisdom appears very plainly when the
parent is dealing with the child, or a highly civilized
race with a barbaric tribe. But that differences in
sapience exist among adults of the same community
cannot be denied, and therefore, according to the
principle necessarily implied in the admissions made
by Mill, coercion is justifiable even for the sole pur-
pose of making the coerced ones better or happier.
And, as regards the test for discretion which Mill
gives, namely, capacity for improvement by free and
equal discussion, Stephen asks how many there are,
even amongst the highest of civilized peoples, whose
minds are fully open to the arguments of abstract
reason.

Then, again, there is that objection to Mill's prin-
ciple which consists in the impossibility of determin-
ing just what acts are wholly self-regarding, and
therefore to be withdrawn from the social or political
control. As a matter of fact, it would not be diffi-
cult to show that, in our complex social life, so inti-
mately is the life and prosperity of one individual
connected with the life and prosperity of all, very
few overt acts are without their social significance.
It would, therefore, be easily possible, acting accord-
ing to the very principles laid down by Mill, to
defend a degree of state interference in the lives of

242 SOCIAL JUSTICE

the citizens far beyond that which the world has
yet known.

We have not yet, however, reached the vital objec-
tion to the utilitarian justification of the right of
social or political control. This is that, as a matter
of fact, the theory is, when judged from the social
standpoint, i.e. from the standpoint of the coercing
power, absolutely destructive of all individual liberty ;
and, when considered from the individual standpoint,
i.e. from the standpoint of the coerced, incapable of
affording any valid ethical ground whatever for the
subordination of the welfare of self to that of the
whole.

If we take the social standpoint, there is justified
any interference, however arbitrary or gross, with the
freedom of the particular individual, if the effect of
such interference is to increase the happiness of those
not coerced. Utilitarians have made strenuous at-
tempts to bridge the chasm between altruism and
egoism, but without success. The two ideas are ge-
nerically distinct, and by no process of development
can the one be made to lead to the other. The whole
discussion is, however, one that cannot, because of
its length, be reproduced here. Nor is it indeed
necessary, so well known is it to all ethical students.

On the other hand, if we take the point of view of
the individual, it justifies, to be sure, all that inter-
ference with the freedom of others which is necessary
to prevent them from interfering with the liberty of
the individual in question ; so far as the coercion is
directly upon him, it can have for him no morally

THE BIGHT OF COERCION 243

binding force. For him, in other words, if happiness
be the test, the ideal of political order is that he shall
be protected against others, but left free himself to
do as his desires dictate. The consequence of this is
that, as to any individual citizen, it is impossible,
upon a utilitarian basis, to erect a social or political
control of a morally binding character. In fact, as
we believe, all those realistic systems which explain
the sense of moral obligation as a product in time of
an evolutionary process, and which place the ultimate
motive of ethical conduct upon a hedonistic basis, are
incapable of explaining the origin of, or of finding a
proper place in their systems for, a feeling of right-
ness in any true sense of the word. Since the feeling
of pain and pleasure can be felt and measured as to
their amount only by the individuals experiencing
them, and as these feelings are the sole criteria of
rightness, what the utilitarians call justice is logically
reduced to a purely individualistic basis. Upon such
a basis it is absolutely hopeless to attempt the erec-
tion of a valid system of social or political right.
The supreme good must be conceived as an aggregate
of individual pleasures, and society must thus appear
as nothing more than an aggregate of self-seeking
beings, each of whom is morally entitled to subordi-
nate the good of others or of the whole to his own
good. And this he may do even though the subor-
dinated good be far greater than the selfish gain
secured. Mill and a few others who have followed
him have attempted, as we have before said, to deny
this, and to hold that the social good is of a higher

244 SOCIAL JUSTICE

order than the individual good. But it is generally
conceded that in so doing he and they have intro-
duced a distinction between different goods as to
kind, whereas their premises permit a distinction
only as to amount.

As opposed to the utilitarian view, the idealistic
or transcendental position is that mere happiness is
never the supreme end of conduct. The supreme
end is ever the realization of a self which is conceived
as rational and universal — as a partaker in that
Divine Reason which is one and indivisible, but
which manifests itself in manifold forms.

The central concept of modern ethics is thus the
moral personality of man. This implies that each
individual is able, and in fact is irresistibly im-
pelled, to formulate for himself an ideal of perfection
toward the attainment of which he is conscious of a
moral obligation to strive. This consciousness of
obligation which takes the form of a categorical
imperative posited by his own reason, carries with
it the logical assumptions : first, of a freedom of the
will, for without this there would not be even the
capacity to obey the obligation which is felt; and,
secondly, of an inherent right to be allowed by others
to realize in fact, so far as is compatible with their
reciprocal rights, those conditions of life which are
implied in the ideal of personal development which ,
each frames for himself. These principles are summed
up by Kant in the two canons: "Be a person and
respect others as persons," and "Act externally in
such a manner that the free exercise of thy will may j

THE RIGHT OF COERCION 245

be able to coexist with the freedom of others accord-
ing to a universal law." *

In declaring the chief good to be the realization
of one's best self, transcendental ethics necessarily
distinguishes between those simple or material wants
which the bodily passions and appetites create, and
those desires which are the outcome of a craving
to secure that moral perfection which the reason
presents. The first express a demand for the satis-
faction of an immediate want, without reference to,
or recognition of, any ulterior end to be realized.
The second are the outcome of the developed reason
of an individual who is conscious that he is a moral
being, who is able to see his life as a whole, to
conceive of a possible perfection, and thus to adapt
means to its attainment.

This is the point which Green makes when he
says : " The reason and will of man have their
common ground in that characteristic of being an
object to himself which, as we have said, belongs to
him so far as the eternal mind, through the medium
of an animal organism and under limitations arising
from the employment of such a medium, reproduces
itself in him. It is in virtue of this self-objectifying
principle that he is determined, not simply by natural
wants according to natural laws, but by the thought
of himself as existing under certain conditions, and
as having ends that may be attained and capabilities
that may be realized under those conditions. It is
thus that he not merely desires, but seeks to satisfy

1 Philosophy of Law, translated by Hastie, p. 46.

246 SOCIAL JUSTICE

himself in gaining the objects of his desire; pre-
sents to himself a certain possible state of himself,
which in the gratification of his desire he seeks to
reach : in short, wills. It is thus, again, that he
has the impulse to make himself what he has the
possibility of becoming but actually is not, and hence
not merely, like the plant or animal, undergoes a
process of development, but seeks to, and does,
develop himself." l

Logically, of course, our argument, if it would be
complete, would need to begin by demonstrating the
idealistic assumptions here made as to the essential
character of man, his participation in the Divine or
Absolute Reason, and, as flowing therefrom, his
power of velleity and actuation by motives not
ultimately determined by objective environment,
— the elaboration, in short, of some such a system
as T. H. Green has made in his Prolegomena to
Ethics. But in this work, which is confessedly
directed to the solution of but special problems, it
is allowable to assume the above position as proven,
and thence to advance to the establishment of a
rational system of political right.

Applying now our idealistic principles to the sub-
ject of rights, we are led, as was seen in our chapter
on " Justice," to assert that rights in the individual
are dependent upon the possession of a capacity and
a disposition to employ them for the attainment of
some desirable end. Applying them to the subject
of political control, we are led to the declaration that

1 Prolegomena to Ethics, § 175.

THE SIGHT OF COERCION 247

the existence of a State is justified, as to each one
of us, in so far, and only in so far, as it tends by its
activities to assist in developing our best selves.

It may appear that our argument has brought us
around to that very utilitarian basis which was so
expressly disavowed in the earlier portion of this
chapter. This may be so in effect as regards the
larger number of the actions of mankind j but it is
not so as regards the ethical criteria applied. In
essential character, this theory stands poles apart
from such an evaluation of results as is implied in
utilitarianism either of the universalistic or the
rationalistic evolutionary type. The one expressly
excludes the material self-interest of the critic and
demands that every action shall be judged sub specie
ceternitatis, that is, as tested by a principle which
may rationally be universalized as a rule of conduct j
the other avowedly predicates a self-interest — albeit
an enlightened one — as the real determining motive
to be followed by the agent. Right actions, accord-
ing to the one, are founded ultimately upon eternal
principles of morality flowing from the essential
character of the Divine Reason; according to the
other, ethical conduct never rises to a higher char-
acter than that of far-seeing prudence. The ulti-
mate aim of the one is the attainment, so far as
may be, to a likeness unto the true God; of the
other, simply a more perfect adjustment to one's
objective environment. 1

1 In his Data of Ethics (§ 105), Spencer outlines his social ideal
as foUows: "One who has followed the general argument thus far

^

248 SOCIAL JUSTICE

From what has been said it will be seen that
modern ethical thought makes the source of moral
obligation wholly subjective. It denies the possi-
bility of an objective or external ground of obliga-
tion of any sort whatsoever. What obligation the
human soul feels comes from the recognition of what
is right. When we discover that a thing is right, the
sense of obligation to seek it is given to us as an
original underived feeling. "Moral obligation is
the soul's response to acknowledged rectitude." 1

Starting from this premise, that in the moral field
man is self-legislative but yet determined by the idea of
a self-perfection, it is possible to harmonize absolutely
the ideas of freedom and control, of liberty and law.
In so far as the commands of a social or political
power are recognized by the individual as being

will not deny that an ideal society may be conceived as so constituted
that his spontaneous activities are congruous with the conditions
imposed by the social environment formed by other such beings. In
many places, and various ways, I have argued that conformably with
the laws of evolution in general, and conformably with the laws of
organization in particular, there has been, and is, in progress an
adaptation of humanity to the social state, changing it in the direc-
tion of such an ideal congruity. And the corollary before drawn and
here repeated is that the ultimate man is one in whom this process
has gone so far as to produce a correspondence between all the prompt-
ings of his nature and all the requirements of his life as carried on in
society. If so, it is a necessary implication that there exists an ideal
code of conduct formulating the behavior of the completely adapted
man in the completely evolved society. Such a code is that here called
Absolute Ethics as distinguished from Relative Ethics — a code the
injunctions of which are alone to be considered as absolutely right in
contrast with those that are relatively right or least wrong ; and which,
as a system of ideal conduct, is to serve as a standard for our guidance
in solving, as well as we can, the problems of real conduct"

1 President J. G. Schurman, in the Philosophical Review, article,
" The Consciousness of Moral Obligation."

THE BIGHT OP COERCION 249

necessary for the realization of his own best good,
which, as we have seen, includes the good of others,
such commands no longer appear to him as orders
from an external power limiting his freedom, but as
imperatives addressed to himself by his own reason.
In obeying them, therefore, he obeys, in fact, himself.
In theory, then, it is possible to conceive of a society
so perfectly organized and administered that at the
same time that social subordination and obedience
is demanded and obtained, the individuals are left
absolutely free as being required to do only such
acts as their own reason tells them are just. 1

This does not mean that the individual should feel
himself morally bound to obey only those laws which,
taken by themselves, he considers just. As we have
already pointed out, in refusing obedience to a law
of the State, or indeed to a social convention of
any sort, he must recognize that such law or conven-
tion constitutes an integral part in a general system
of rights, and therefore that a violation of it will

1 " If we try to form the idea of a divine society or community of
men — and by a divine society, I mean one that is perfect — we may,
without incurring the reproach of manufacturing a utopia, say this
much of it It must have a perfect harmony or unity of all its mem-
bers, and a perfect variety ; and the more intense and thorough the har-
mony is, the more so must the variety be. A perfect society would
have an intense oneness, but this oneness would hold amid an infinite
variety of character and experience on the part of its individual
members. In musical art, when instruments of various kinds sound
different notes, we may have a symphony which is one of the most
magnificent expressions of superpersonal feeling that humanity knows :
such would be the harmony of a perfect society and such is the dream
of the world." S. H. Mellone in the International Journal of Ethic*,
Vol. VTH, p. 78, article, "Some of the Leadiug Ideas of Comte's
Positivism."

850 SOCIAL JUSTICE

tend, not simply to nullify the command in question,
but to weaken the efficiency of the whole sys-
tem. He must therefore consider, before he resists,
whether he may not be able to secure an annulment
of the objectionable rule in some better manner, or,
if this be not possible, whether it will not be prefer-
able to suffer the evil rather than to bring about the
harm which a resistance to it will produce. Fur-
thermore he should remember that (to quote Bosan-
quet), " It is possible for us to acquiesce, as rational
beings, in a law and order which on the whole
makes for the possibility of asserting our true or
universal selves, at the very moment when this law
and order is constraining our particular private wills
in a way which we resent or even condemn. Such a
law and order, maintained by force, which we recog-
nize as on the whole the instrument of our greatest
self-affirmation, is a system of rights ; and our lib-
erty, or to use a good old expression, our liberties,
may be identified with such a system considered as
the condition and guarantee of our becoming the
best that we have it in us to be, that is, of becom-
ing ourselves. And because such an order is the em-
bodiment up to a certain point of a self or system of
will which we recognize as what ought to be, as
against the indolence, ignorance, or rebellion of our
casual private selves, we may rightly call it a system
of self-government, of free government; a system,
that is to say, in which ourselves, in one sense, gov-
ern ourselves in another sense." *

1 The Philosophical Theory of the State, p. 127.

THE BIGHT OF COERCION 261

In result, modern political ethics advocates a sub-
ordination of the individual to society as a whole,
but does so in such a way as not to abate one whit
of his personality or freedom, for this subordination
is, in essence, not the subordination of his will to a
higher social will, but the identification by the indi-
vidual of the social will with his own will, so that, in
obeying the social or political will, the individual
obeys his own will purified from selfishness.

We shall be able to bring this idea of obedience
without subordination into clearer light by contrasting
it with the conceptions of political right which it has
supplanted. Looking back over the history of politi-
cal thought, we find that, roughly speaking, the rela-
tion of the individual to the State has been viewed in
four aspects. These we may designate by the names,
Oriental, Hellenic, Individualistic, and Modern.

In our chapter on " Justice " we called attention to
the fact that Greek ethical thought developed the
idea of an abstract natural law which was conceived
to stand superior to human law. Logically, as we
pointed out, this idea could have been made subver-
sive of all political authority. It did not, however,
have this effect in Greece. Paradoxical as it may
seem, the Hellenes were able to recognize in their
political philosophy the independent value of human
personality, and at the same time to subject the citi-
zen to the absolute control of the State. According to
the Hellenic conception, man was by his very nature
a social being. Hence his life in a state of society,
with its social conventions and demands, meant, not

252 80CIAL JUSTICE

an interference with an original independence, but a
condition of life necessary to the very existence of
men as independent rational beings. To the Greeks,
in other words, society and the State were as imme-
diately products of great nature as was man himself.
The State had, indeed, in their eyes a higher and more
perfect individuality and personality than did its citi-
zens; for it was from its personality and from its life
that the citizen was supposed to derive all that was
valuable to him as a man. This apotheosis of the
State was carried to such a degree that the doctrine
of immortality, so far as it was developed by the
Greeks, was, for the most part, made applicable only
to the civic personality. It is this fact that largely
explains why, considering the high development
reached by philosophy among the Greeks, compara-
tively so little discussion centred around the possi-
bility or probable conditions of a life hereafter for
mankind. The State's life was eternal, and man's
highest aim was conceived to be the contribution of
what lay within his power to render that life as
glorious as possible.

The consequence of this was that, while the indi-
vidual had many rights, he had none as opposed to
the State. The individual was as completely subor-
dinated to the State in the Hellenic as in the Oriental
world. There was, however, this fundamental differ-
ence. While the Oriental, in his subjection to the law
and to the State, viewed this subordination as an
obedience to an external power, the Greek saw in it
but a yielding to a higher self, — to a power of which

THE BIGHT OF COERCION 253

the citizens were themselves parts. What in the
Oriental world was subjection, became in the Greek
world self -surrender. President Wheeler, in his recent
life of Alexander the Great, states the distinction
which we have been attempting to make, in the fol-
lowing manner : " To the Oriental," he says, " the
universe as well as the State is conceived of as a vast
despotism, which holds in its keeping the source and
the law of action for all. Its mysterious law, held
beyond the reach of human vision, like the inscrutable
will of the autocrat, is the law of fate. Personality
knew no right of origination or of self-determination ;
it was swept like a ship in the current. It knew no
privilege except to bow in resignation before the
unexplained, unmoved mandate of fate. The Ori-
ental government of the universe was transcendental ;
the Hellenic, social." *

The individualistic phase of political thought was
represented in the philosophy of the seventeenth and
eighteenth centuries, and was a direct outcome of
that central idea of the Protestant Reformation ac-
cording to which the individual is given the right
of passing final judgments as to the meaning of the
law. It is true that Luther's mission was to declare
simply the emancipation of man from the dogmatic
absolutism of the Church, but in doing so the princi-
ple was necessarily asserted which freed him from
unquestioning obedience to any external authority,
political or ecclesiastical.

This freedom, when not controlled and tempered

1 Chapter L

264 SOCIAL JU8TI0X

by a proper comprehension of the rational limitations
under which it should be exercised, led, as is well
known, to a gradual denial of the right of all politi-
cal authority not founded on the assent — explicit
or implied — of the individuals subject to it. The
movement, in effect, assumed the form of a simple
negation of the Oriental idea of subjection, and, as
all pure negations are apt to be, was carried over
into the opposite extreme, anarchy. In political
theory this individualistic philosophy reached its
height in the writings of the French philosophical
school of the latter half of the eighteenth century.
In political fact, it found its culmination in the
anarchy of the revolutionary period.

In his admirable little book on Hegel, Professor
Caird has stated in a masterly manner the essential
thought in the eighteenth century philosophy, show-
ing both the kernel of truth that it contained, and
the errors involved in its attempted application.

"The doctrine that nothing ultimately can have
truth or even reality for man," says Caird, " which
is not capable of being made his own and identified
with his very self, might be understood to mean that
the truth of things is at once revealed to the unde-
veloped consciousness of the savage or of the child,
and that the immediate desires of the natural man
are his highest law. In the place of the duty of
knowing one's self, and of undergoing all the hard
discipline, intellectual and moral, which is necessary
in order to know, might be put an assertion of the
' rights of private judgment, 9 which was equivalent

THE RIGHT OF COERCION 255

to the proclamation of an anarchy of individual
opinion. As the modern struggle for emancipation
went on, this ambiguity of the new principle began
to reveal itself; and the claims which were first
made for the ' spiritual man/ i.e. for man in the infi-
nite possibilities of his nature as a rational or self-
conscious being, capable of an intellectual and moral
life which takes him out of himself, and even of a
religious experience which unites him to the infinite,
were asserted on behalf of the 'natural man/ i.e.
of man conceived merely as a finite individual — an
Atom set among other atoms in a finite world, and
incapable of going beyond it, or even beyond him-
self, either in thought or action. Hence the strange
contradiction which we find in the literature of the
eighteenth century, which with one hand exalts the
individual almost to a god, while with the other it
seems to strip off the last veil that hides from him
that he is a beast. The practical paradox, that the
age in which the claims of humanity were most
strongly asserted, is also the age in which human
nature was reduced to its lowest terms, — that the
age of tolerance, philanthropy, and enlightenment,
was also the age of materialism, individualism, and
scepticism, — is explicable only if we remember that
both equally spring out of the negative form taken
by the first assertion of human freedom.

"As the individual thus fell back upon himself,
throwing off all relations to that which seemed to be
external, the specific religious and social ideas of
earlier days lost power over him; and their place

256 SOCIAL JUSTICE

was taken by the abstract idea of God and the abstract
idea of the equality and fraternity of men — ideas
which seemed to be higher and nobler because they
were more general, but which for that very reason
were emptied of all definite meaning, as well as of
all vital power to hold in check the lusts and greeds
of man's lower nature. Thus the ambitious but
vague proclamation of the religion of nature and the
rights of man was closely associated with a theory
which reduced man to a mere animal individual, a
mere subject of sensations and appetites, incapable
either of religion or of morality. For an ethics which
is more than a word, and a religion which is more
than an aspiration, imply definite relations of men to
each other and to God, and all such relations were
now rejected as inconsistent with the freedom of the
individual. The French Revolution was the practi-
cal demonstration that the mere general idea of
religion is not a religion, and that the mere general
idea of a social unity is not a State, but that such
abstractions, inspiring as they may be as weapons of
attack upon an old system, leave nothing to build up
the new one, except the unchained passions in the
natural man." 1

In a certain sense, modern ethics appears to dis-
tinguish between a higher and a lower self. We say
" appears to distinguish," for in fact but one true self
is recognized, and, strictly speaking, there can be no
such thing as a will striving against itself. Never-
theless, it is possible for the requirements of a truly

1 Op. ck, pp. 19-20. .

THE RIGHT OF COERCION 257

moral life to conflict at times with immediate mate-
rial desires, and in selecting the former for satis-
faction, there does occur what may properly be
termed a struggle between our higher and lower
natures.

Surprising as it may seem, it was first in the writ-
ings of J. J. Rousseau that we find this modern doc-
trine of a true or higher self as opposed to the
untrue or lower self, a " real " will as opposed to an
apparent will, attempting to break forth. In his
earlier essays, to be sure, Rousseau exalts the " natu-
ral man," but in his Social Contract there is clearly
apparent the idea of a true human liberty that is
higher and better than the license of the savage;
and in his volonti generate we have the conception of
a will more real than that expressed by the momen-
tary or selfish inclination of the individual.

Thus, in speaking of benefits to be derived by the
establishment of a civil State properly administered,
he says : " The passage from the state of nature to
the civil State produces in man a very remarkable
change, by substituting in his conduct justice for
interest, and giving to his actions a moral force which
they lacked before. Then only does the voice of
duty succeed to physical impulse, and law to appetite,
and man, who until then had thought only of himself,
sees himself forced to act upon other principles, and
to consult his reason before listening to his desires.
. . . There ought to be added to the credit side of
the civil State, that of moral liberty, which alone
renders man master of himself ; for the impulse of

258 80C1AL JUSTICE

one appetite is slavery, and obedience to self-pre-
scribed law is liberty. 01 #

From the above it is clearly apparent that the
real meaning at the bottom of Rousseau's thought,
when he says that man is born free, is that he is
born for freedom. And when he says that, in fact,
men are everywhere in chains, he means, not that
this is a necessary result of the civil State, but of a
civil State wrongly established and administered.'
This idea of a distinction between a real and a
casual will appears again, where Rousseau makes
the point that it is possible for the volonte gfa&rak
to stand in opposition to the individual will. This
opposition, he declares, is, however, not real, but
comes from the individual having mistaken what
his real will is, that is, from his having interpreted
a casual or selfish desire as representing his real
interest. The volenti generate represents his real
will, and hence in being compelled to yield to it,
the individual is really, as Rousseau says, " forced
to be free."

The error of Rousseau's reasoning appears when
he declares that it is possible to determine this real
will of the individual as a volonte generate, and to
ascertain this volenti generate by such a mechanical
means as a plebiscite. Rousseau recognizes, to be
sure, that there is a difference between the volenti
generate and the voUmti de tous, in that the one

1 Book II, Chapter VIIL

* Bosanqnet in his recent work, The Philosophical Theory of the
State, makes this point very plain. See especially Chapter IV.

THE BIGHT OF COERCION 259

regards the common interest, and the other private
interests; but he thinks that the former can be
derived from the latter by setting off individual
differences against one another. "Take," he says,
"from these same wills the plus and the minus,
which destroy each other, and there will remain
for the sum of the differences the general will/' 1

In the political philosophy of Kant, Rousseau's
mechanical idea of a vohnti generate disappears, and
is replaced by the truer conception of a real will as
dependent upon the reason of man when purified
from all desire. There thus becomes explicit in
Kant the idea of the morally self-legislative char-
acter of man. Man's conduct, then, as conceived
by Kant, so far from being lawless, is limited by
those conditions which the reason imposes, and the
chief among them is the principle before mentioned
that all individuals should be treated as persons, and
consequently that all acts should be such as can
rationally be made a canon of conduct for all men.
Thus Kant defines right as comprehending "the
whole of the conditions under which the voluntary
actions of any one person can be harmonized in
reality with the voluntary actions of every other
person, according to a universal law of freedom."*

Kant had not, however, emancipated himself from
the individualistic philosophy of the eighteenth cen-
tury. He did not grasp the fundamental truth that
the individual can, by recognizing the justice of the

1 Op. cit., Book II, Chapter III.

* Philosophy of Law, Hastie translation, p. 46.

260 SOCIAL JUSTICE

will of another power, make that will his very own,
and thus, though obeying it, be not coerced by it.
He thus, in fact, ever regards the control of the law
as necessarily an interference with freedom, and jus-
tifiable only when employed to prevent coercion
from other sources. He develops, therefore, the
pure conception of a Rechtsstaat, — a State whose
sole legitimate function is to prevent the violations
of those principles of rights which the reason lays
down as fundamental. The State is thus dragged
in, as it were, as a deus ex machina to secure to
men that freedom to which they are rationally
entitled, but which without the State they could
not obtain. 1

The true view which, while recognizing the two
necessary elements of self and not self, of liberty
and law, yet harmonizes them in a higher unity
without destroying them, is first found stated in the

1 Caird in his monumental work. The Critical Philosophy of Kant,
has set forth in a masterly manner the inconsistencies in the political
reasoning of Kant. We are inclined to think, however, that in doing
so Caird has himself erred in giving to the social concept a too inde-
pendent dignity. At times he speaks of the society as being more
than a means for the realization of the good of its constituent indi-
viduals. Thus he says in one place : " If, however, it is admitted that
a relation of persons may be established, in which they are not as ends
exclusive of each other, or in which each, as so exclusive, is only a
means, the strict opposition of things and persons, means and ends,
disappears in a higher category. We pass, so to speak, from the
external teleology of mere design to the higher teleology of organic
unity. . . . Under this new category, it becomes possible to under-
stand that man can be an end, only as he is a member of a kingdom
of ends, to which he makes himself a means, just as a member of the
physical body maintains itself by the very activity in which it sub-
serves the whole organism." It seems to us that this position is open
to criticism. See our next chapter.

THE BIGHT OF COEBGIOK 261

philosophy of Hegel. Here the old Greek idea is
revived, but corrected by rendering that subordina-
tion, which to the Greek was an unthinking and
almost instinctive submission, a conscious, deliber-
ately chosen subordination. The Greek failed to
reach the true view because he recognized but the
one element, the will of the State. His thought in-
volved no recognition of the two necessary elements
of freedom and authority. In other words, his iden-
tification of the individual will with the will of the
State was immediate.

In the modern view, on the other hand, the identi-
fication is mediate. The two ideas of absolute free-
dom and absolute subjection are first clearly presented
to the mind and then harmonized. 1 Thus, while still
retaining the central conception of the " good will/*
the abstract and impossible Kantian formalism of that
will is denied. In its place there is given us the con-
ception of a self that finds its realization in the outer
world, in utilizing objective forces and institutions as
means for securing that development and perfection
which the reason declares. The existence of the
State thus, as comprehending the most important of
all those forces and facts which are necessary for
man's highest life, receives the highest possible
sanction. Thus Hegel speaks of the State as the
"actualization of freedom/' 9 and as the "embodi-
ment of concrete freedom." 8

1 Cf . Caird's " Hegel," in Blackwood's Philosophical Classics, Chap-
ter II.

* Philosophy of Right, translated by Dyde, § 268 addition.
« Idem, § 260.

262 80CIAL JUSTICE

" In this concrete freedom/ 9 says Hegel, " personal
individuality and its particular interests, as found
in the family and civic community, have their com-
plete development. In this concrete freedom, too,
the rights of personal individuality receive adequate
recognition. These interests and rights pass partly
of their own accord into the interest of the indi-
vidual. Partly, also, do the individuals recognize
by their own knowledge and will the universal as
their own substantive spirit, and work for it as their
own end. Hence, neither is the universal completed
without the assistance of the particular interest,
knowledge, and will; nor, on the other hand, do
individuals, as private persons, live merely for their
own special concern. They regard the general end,
and are, in all their activities, conscious of this end.
The modern State has enormous strength and depth,
in that it allows the principle of subjectivity to com-
plete itself to an independent extreme of personal
particularity, and yet at the same time brings it
back into the substantive unity, and thus preserves
particularity in the principles of the State. . . .

" In the republics of classical antiquity, universality,
it is true, is to be found. But in those ages particu-
larity had not as yet been released from its fetters,
and led back to the universality or the universal
purpose of the whole. The essence of the modern
State binds together the universal and the full free-
dom of particularity, including the welfare of indi-
viduals. It insists that the interests of the family
and the civic community shall link themselves to the

THE BIGHT OF COERCION 263

State, and yet is aware that the universal purpose
can make no advance without the private knowl-
edge and will of a particularity which must adhere
to its right. The universal must be actively fur-
thered, but, on the other side, subjectivity must be
wholly and vitally developed. Only when both
elements are present in force is the State to be
regarded as articulate and truly organized." 1

The Proper Sphere of Coercion. — The position to
assume upon this point is very clearly pointed out
in the discussion that has been had as to justification
of coercion in general. If, as we have shown, there
are properly speaking no abstract rights in the indi-
vidual which are by their very nature withdrawn
from rightful control, it follows that utility — inter-
preted, of course, in its highest ethical sense — should
determine when coercion should be applied.

Thus far the discussion has been limited to the
question of the rightfulness of political restraint. The
same arguments, however, apply with equal force to
all forms of social control, whether exercised through
the State, the family, the church, or merely through
social disapprobation. In each case the influence
exerted may only be justified, as regards the person
exerting it, if it be consciously intended to be for the
ultimate best of the person controlled or of mankind
at large. As regards the one controlled, it may be
acquiesced in as just only in so far as that one can
himself perceive in it such a tendency ; and the same
is true as regards the disinterested critic.

l Op.ciL,$ 260 and addition.

264 SOCIAL JUSTICE

Of course the conditions under which state coer-
cion may be applied differ widely from those under
which compulsion may be employed by society in the
form of public opinion, or by the individual by a
withdrawal of his friendship or financial help, but
the motives in all three cases must be, if they would
be ethically valid, the same. Fitzjames Stephen
has formulated the following conditions that must be
satisfied in order to justify any form of compulsion,
and which, when satisfied, do positively require it.
These are : (1) that the object aimed at be desira-
ble, (2) that the means employed be calculated to
obtain it, (3) and at not too great an expense. 1 We
accept his position upon this point as absolutely
valid.

At first thought this may seem to justify intoler-
ance in matters usually considered beyond the right
of control — religious belief and ceremonial, for
example. Let us see if this be so.

There is no one who would maintain that we
should recognize toleration as an absolute duty ; that
is, one to be exercised as to all persons and as to all
acts. There are always some acts that we will not
tolerate, even if performed in the name of religion.
What, then, is the logical ground upon which we
justify intolerance in such cases, and tolerance in all
others ? If we are convinced that a certain line of
conduct will be for the best interest of another, and
if we can by some means make that other adopt that
policy without at the same time doing him a greater

1 In his Liberty, Equality, Fraternity.

THE BIGHT OF COERCION 265

evil than benefit, is it not really a kindness to him
to do so ? If we are firmly convinced, for example,
that the failure to accept a certain doctrine will doom
the recusant to an eternity of awful torment, and if
we are equally sure that coercion will be able to
secure the saving acceptance, and without causing
an amount of suffering anywhere near as great as
that from which the coerced one is to be rescued, can
we hesitate to declare that such coercion should be
applied? Have we not, in fact, abandoned intoler-
ance, where we have abandoned it, either because we
have changed our minds either as to the desirability of
the end sought, or our faith in the efficiency of com-
pulsion to reach it, or to reach it at a not dispropor-
tionate expense ?

In taking this ground we emphasize the fact that
coercion being in itself painful, the one exercising it
is morally bound first to convince himself that the
conditions that we have mentioned are certainly
present. No one is justified in intolerance, however
slight, until he has informed himself by all means
within his power as to the rightfulness of his opinion,
and until he has taken into careful consideration all
the effects, immediate and remote, of an exercise of
coercion on his part. When such conditions are
strictly observed it will be found, we think, that
the doctrine will secure a considerably greater toler-
ance, individual, social, and political, than now
actually obtains in any modern society.

The bearing which the discussion that has gone
before has upon the proper attitude of the so-called

266 SOCIAL JUSTICE

higher nations to the lower, less civilized races, is
obvious. It can not but be held that, just as there
is a duty on the part of a parent or guardian to
educate, even with the collateral use of compulsion
if necessary, the undeveloped faculties of the child,
so it lies within the legitimate province of an
enlightened nation to compel — if compulsion be the
only and the best means available — the less civil-
ized races to enter into that better social and political
life the advantages of which their own ignorance
either prevents them from seeing, or securing if seen.
There must be emphasized, however, the conditions
under which alone the assumption of such a task by a
superior nation is justifiable. In the first place the
motive must be an absolutely disinterested one. The
work must be undertaken because of the advantage
which will accrue to the coerced race, or to humanity.
The possibility of incidental advantages to the supe-
rior race is not excluded, but cannot properly furnish
the motive. In the second place the superior nation
should be absolutely sure, not simply that the civiliza-
tion which it is endeavoring to impress upon the infe-
rior nation is intrinsically better than that which' it
is to supplant, but that it will be better as related to
the peculiar needs and characteristics of the people
in question. Finally it should be made manifest that
the desired results can better be obtained by compul-
sion than by any other mode. In this connection
there must be taken into consideration all possible
consequences, proximate and remote, not only as
regards the nations immediately concerned, but as

THE BIGHT OF COERCION 267

regards the fact that a compulsion conscientiously
undertaken hy one nation may furnish a pretext or
alleged precedent for a " criminal aggression " on the
part of a less conscientious people. Bearing in mind
these qualifications, we may accept the language of
Professor Burgess when he says : —

" No one can question that it is in the interest of
the world's hest civilization that law and order and
the true liberty consistent therewith shall reign
everywhere upon the globe. A permanent inability
on the part of any State or semi-State to secure this
status is a threat to civilization everywhere. Both
for the sake of the half-barbarous State and in the
interest of the rest of the world, a State or States,
endowed with the capacity for political organization,
may righteously assume sovereignty over and under-
take to create state order for, such a politically incom-
petent population. The civilized States should not,
of course, act with undue haste in seizing power,
and they should never exercise the power, once
assumed, for any other purpose than that for which
the assumption may be righteously made, viz. for the
civilization of the subjected population; but they are
under no obligation to await invitation from those
claiming power and government in the insufficient
organization, nor from those subject to the same.
The civilized States themselves are the best organs
which have yet appeared in the history of the world
for determining the proper time and occasion for inter-
vening in the affairs of the unorganized or insuffi-
ciently organized populations, for the execution of

268 SOCIAL JUSTICE

their great world-duty. Indifference on the part of
the Teutonic States to the political civilization of the
rest of the world is, then, not only mistaken policy,
but disregard of duty, and mistaken policy because
disregard of duty. In the study of general political
science we must be able to find a standpoint from
which the harmony of duty and policy may appear.
History and ethnology offer us this elevated ground,
and they teach us that the Teutonic nations are the
political nations of the modern era; that, in the
economy of history, the duty has fallen upon them
of organizing the world politically; and that, if
true to their mission, they must follow the line of
this duty as one of their chief practical policies." 1

1 Political Science and Comparative Constitutional Law, VoL I, p. 47
(published in 1808).

CHAPTER IX

THE ETHICS OF THE COMPETITIVE PROCESS

The result of the argument, as carried on in the
preceding chapter, has been to show that no absolute
or a priori principle can be established regarding the
proper sphere of social or political control, but that
in every case conditions of fact should govern. It
has been alleged by some, however, that, starting
from such a purely empiric basis, it can be estab-
lished as a general principle that the coercive power
of the Sta^e should be kept within the closest limits
possible. It is asserted, in short, that this is the
lesson taught by a study of the conditions of life
generally in the biological world. In the sub-human
world, it is said, continued progress and development
have been rendered possible solely by the fact that
individuals have been forced to bear the consequences
which necessarily come from unrestricted competition
with the members of their own and other species.
By a like competitive process, it is argued, the im-
provement of the human race may best be secured.
The present chapter will be devoted to a considera-
tion of the validity of this position.

The chief exponent of this theory is Mr. Herbert
Spencer. The latest and probably final statement of

270 SOCIAL JUSTICE

his views is to be found in his work, Justice, which
constitutes Part IV of his Principles of Ethics}

As is well known, Mr. Spencer is a defender of the
theory that the evolutionary process has been able,
not only to develop the feeling of moral obligation,
but to bring about its very creation from materials
which did not originally contain it even in germ.
The illogicalness of such a position would seem suffi-
ciently obvious, but is somewhat explained when we
consider the essential character which Mr. Spencer
ascribes to the ethical idea. " Most people [he says]
regard the subject of ethics as being conduct consid-
ered as calling forth approbation or reprobation. But
the primary subject-matter of ethics is conduct con-
sidered objectively as producing good or bad results
to self or others, or both." * Acting upon such a con-

1 In addition to the support claimed to be derived from the empiric
facts of biological evolution, Mr. Spencer, positivist though he be,
relies also upon a bald doctrine of abstract natural rights. In that
chapter of his Justice which is devoted to the establishment of the
authority of the individualistic formula which he has obtained, he
avowedly rests it upon an a priori ground, and calls to his support the
dicta of such men as Blackstone and Mackintosh, wherein they have
declared the supreme, invariable, and all-controlling power of natural
law. Spencer closes with the truly remarkable argument that " pay-
ing some respect to these dicta (to which I may add that of the
German jurists with their Naturrechi) does not imply unreasoning
credulity. We may reasonably suspect that, however much they may
be in form open to criticism, they are true in essence." This is truly
an argument remarkable, not only because of the method of demon-
stration involved, but because of the total misconception involved as
to the connotation of the term "Naturreckt" in German jurisprudence.
Mr. Spencer goes on, however, to assign a special and limited charac-
ter to a priori beliefs in general, but in this we need not follow him,
as we shall presently cover this point when we examine Mr. Spencer**
system from a different standpoint

1 Justice, p. 3.

THE ETHICS OF THE COMPETITIVE PROCESS 271

ception as this, it is, of course, comparatively easy
for him to treat human justice as but an outgrowth
from animal or sub-human conduct.

Within this lower world of life it is undoubtedly
true that development has been an outcome of a
competitive regime in which those less fit, as related
to their environment, have been destroyed, and those
more fit, in the same sense, have survived and been
enabled to transmit their favorable characteristics to
their offspring, and thus the gradual evolution of
higher, more complex, and better integrated species
rendered possible. It is also true that this weeding
process has been the result of an order in which each
individual has, in the main, had visited upon it the
natural effect of its own nature and consequent con-
duct. It is to be observed, however, that, in order
to secure the efficiency of the evolutionary process,
there has been demanded the birth of a vastly greater
number of individuals than can by any possibility
live lives of natural length. In other words, in
order to secure the requisite favorable variations,
and to obtain the needed intensity of competition,
many are called into life, while but few are chosen
for a life sufficiently long to enable them to produce
offspring. The development of the species has thus
ever been at the expense of the great majority of the
individuals constituting it. As to this, Mr. Spencer
says: "The species has no existence save as an
aggregate of individuals, and it is true that, there-
fore, the welfare of the species is an end to be sub-
served only as subserving the welfares of individuals.

272 SOCIAL JUSTICE

• . . But [he continues] since the disappearance of
the species, implying disappearance of all individu-
als, involves absolute failure of achieving the end,
whereas disappearance of individuals, though carried
to a great extent, may leave outstanding such num-
ber as can, by the continuance of the species, make
subsequent fulfilment of the end possible ; the pres-
ervation of the individual must, in a variable degree,
according to circumstances, be subordinated to the
preservation of the species, where the two conflict/' 1
Coming now to human life, Mr. Spencer, finding
in it no elements not embraced in sub-human life,
applies as necessary to human development the law
stated above, that upon each individual should be
visited the natural results of his own nature, as
judged by the degree of his adaptation to the de-
mands of his environment. This law, he declares,
is one not simply of fact, but of moral (as he under-
stands moral) obligation. It becomes, in fact, at
once a law of necessity (if there would be human
evolution) and a canon of distributive justice. Mr.
Spencer therefore holds that any interference on the
part of man with the principle which this law de-
clares, is not only unwise, but immoral. He holds,
however, that there is an important modification in
form, if not in character, of the principle in its appli-
cation to men, resulting from the gradual recognition
by men, due to their increasing intellectuality, that,
in order to give this beneficent law the fullest free-
dom of operation, each individual should recognize in

1 Op. cit. t p. 6.

THE ETHICS OF THE COMPETITIVE PROCESS 273

others the right to the same unimpeded activity
which he claims for himself.

Furthermore, he says, the developing intelligence
of men leads to the conscious recognition both of the
utilitarian basis upon which this rule is founded, and
to an acceptance of its essentially obligatory char-
acter. In other words, although the principle of dis-
tributive justice obtains full sway among sub-human
species, it is not recognized as doing so in the minds
of those over whose destinies it exercises a control.
Only among men does the objective operation of the
rule result in the formation of a corresponding sub-
jective feeling that it is right that the individual
should submit to the conditions of his natural being
and to the requirements of his natural environment,
in order that the ultimate good of his species may be
subserved, and that it is proper that he should
restrain his desires where their satisfaction will
imply an undue interference with the freedom of
action of others.

" The dread of retaliation, the dread of social dis-
like, 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 withdut regard to the
interests of fellow-men. Containing none of the
altruistic sentiment of justice, properly so called,
pro-altruistic sentiment of justice serves temporarily
to cause respect for one another's claims, and so to
make social cooperation possible/ 9 1

1 Op. ctf., p. so.

274 SOCIAL JUSTICE

This sentiment, thus produced, in time becomes so
firmly grounded in the consciousness of men that it
is ultimately mistaken, as Mr. Spencer alleges, for an
innate feeling. Such, indeed, he holds to be the
essential character of all supposedly innate or a priori
beliefs. 1

From the premises and argument which we have
stated it is easily seen how Mr. Spencer is led to the
statement of a doctrine of the proper duties of the
State, which limits them to the simple police function
of protecting life, liberty, and property. For, as he
conceives it, any political control necessarily checks
pro tanto the beneficent operation of competition.

It will be seen that in this system which we have
outlined the competitive regime among men is
defended upon both economic and ethical grounds.
As regards the manner in which the personal sense
of moral obligation is declared to have arisen, we
cannot, of course, give our assent. We do not
believe it possible to create, by means of the evolu-
tionary process, a product the elements of which are
not conceived to have been present in the material
from which it is supposed to have evolved. We do
not hold it possible, either by means of individual or
race experience, to evolve a true altruistic sentiment
out of originally selfish feelings. Nor do we hold it
a logical sequitur that, because a certain law of devel-
opment is discovered to govern the growth of sen-

1 " One who accepts the doctrine of evolution is obliged, if he is
consistent, to admit that a priori beliefs entertained by men at large
must have arisen, if not from the experiences of each individual, then
from the experiences of the race." — Spencer, op. ciL, p. 55.

THE ETHICS OF THE COMPETITIVE PBOCE8S 275

tient beings, therefore it is a law which should or
ought to govern. But this is obviously not the place
for a criticism of such a view. We shall, however,
have occasion later on to show that, even apart from
these matters, the system of political ethics advocated
by Mr. Spencer exhibits characteristics which can be
squared neither with his own nor with any other
principles of right and justice.

In order to arrive at his individualistic results Mr.
Spencer impliedly maintains the following assertions:
first, that a regime of practically unrestricted compe-
tition between sub-human individuals is necessary for,
and in fact does always lead to, the improvement of
their species ; second, that in this process the interest
of the individual may ruthlessly be subordinated to
that of the species ; third, that what is true of sub-
human species is equally true of human beings.
These assertions are necessarily implied in the posi-
tion taken by Mr. Spencer, although in fact he has
not proved or attempted to prove the truth of all of
them.

As regards the first assertion, all that evolutionary
biologists have shown is that, as a matter of fact, a
fierce struggle for existence is waged between indi-
viduals of the sub-human species, and that the out-
come of this has been the gradual development of
more complex and better integrated types of life.
But this does not preclude the possibility of an evo-
lution by other and perhaps better means, unless,
indeed, it should be held that such a suggestion
would impugn the wisdom or the goodness of the

A

276 social justice

Creator, a plea Mr. Spencer could hardly be supposed
as willing to advance. As a matter of fact, moreover,
as has been shown in the case of domesticated animals,
purposive sexual selection, in the absence of competi-
tion, is a far more rapid and effective agent of im-
provement than the elimination. of the unfit in a
struggle for existence.

Again, as qualifying the effect of Mr. Spencer's
first assertion, the connotations of the terms " evolu-
tion " and " fittest for survival," as used by the biolo-
gist, are to be examined. When this is done it is
found that "evolution" is not necessarily synony-
mous with progress or improvement in any broad or
ethical sense ; and that the " fitness " implied in the
latter phrase has also a peculiar and limited meaning.

In the struggle for existence, in the biologic sense,
survival is a demonstration only of adaptation to
environment, and as a necessary consequence, the
real character of this fitness is wholly determined by
the nature of the environment. As Professor Huxley
has said in his now famous Romanes Lecture : " In
cosmic nature what is fittest depends upon the condi-
tions. ... If our hemisphere were to cool again,
the survival of the fittest might bring about in
the vegetable kingdom a population of more and
more stunted and humbler and humbler organisms,
until the fittest that survived might be nothing but
lichens, diatoms, and such microscopic organisms as
those which give red snow its color; while, if it
became hotter, the pleasant valleys of the Thames
and Isis might be uninhabitable by any animated

THE ETHICS OF THE COMPETITIVE PBOCESS 277

beings save those that flourish in a tropical jungle.
They, as the fittest, the best adapted to changed con-
ditions, would survive." l

In truth, the very conditions of an unrestricted,
unthinking struggle for life between individuals ren-
der impossible the survival of exceptionally developed
types. Where, as a result of an exceptional varia-
tion, an individual differs radically from its kind,
this very difference, albeit one indicating develop-
ment, is a disadvantage to it, as rendering it, as it
were, out of rapport with its environment. Thus
the effect of competition everywhere observable in
the sub-human world is the prevention of maximum
development, and the maintenance in its stead of a
comparatively low level of life. The process is thus
much like the slow advance of a line of men in battle.
Those who rush ahead are the first killed by the
enemy.

As regards the truth of that second assertion
which we have stated to be implicit in Mr. Spencer's
theory, namely, that the interests and even the ex-
istence of the individual may rightfully be subordi-
nated to the welfare of the species, a positive denial
must be entered, so far at least as regards its appli-
cation to man. In the manner in which this demand
is made by Mr. Spencer, such a sacrifice can be justi-
fied according to neither transcendental nor utilitarian
systems of ethics. For if, as the transcendentalist
holds, man is a partaker in the Divine Reason, and
his moral consciousness is therefore a partial mani-

1 "Evolution and Ethics/' Collected Essays, VoL IX.

278 SOCIAL JUSTICE

testation, as it were, of the World Spirit, he has
moral rights and duties as such, and is thus dis-
tinguished from a thing. And this being so, it is
ethically improper to treat the individual simply as
a means to an end, even though that end be the
welfare of his race. This, of course, does not mean
that the social welfare should under no circumstances
be preferred to the individual's good, but only that
when one individual, or society at large, assumes to
control the actions or destinies of other individuals,
the motive should be one in which there is involved
the recognition that those other individuals are per-
sons, not things ; that they, each of them, are ends
unto themselves, and therefore that the action to be
taken can only be justified if the object sought to
be realized is one which those individuals would
themselves recognize to be a desirable one if they
were to reason regarding it intelligently and im-
partially. It is true that in many cases where
social coercion may justly be applied, the coerced
one may not admit its rightfulness or submit will-
ingly to its operation. In such a conflict superior
might finally determines the issue. But if the com-
pelled one be honest and intelligent according to his
opportunities, he cannot be said to be immoral in his
resistance ; nor, on the other hand, if the action of
the superior force has been controlled by the prin-
ciple just stated, can its conduct be condemned. In
a society of individuals ethically and intellectually
perfect no such conflicts would occur. The control-
ling power would demand no sacrifices which could

THE ETHICS OF THE COMPETITIVE PROCESS 279

not be ethically justified, and no individual would
resist the enforcement of a control which he could
see to be wise and proper.

It scarcely need be said that such a subordination
of the individual to society as this has no essential
points of resemblance to that subjection of the indi-
vidual to the welfare of its species which is implied
in the biologic laws of " struggle for existence " and
"survival of the fittest." The sacrifice demanded
by these laws is ruthless, largely indiscriminate,
and wholly selfish. So far as the process can be
termed teleological, its sole aim is the improvement
of the species, and the means employed one which
contains no asking or possible granting of consent on
the part of the individual victims. According to its
principles the absolute annulment of every right of
an indefinite number of individuals is justified if
only the ultimate preservation of the species be pro-
moted. According to the transcendentalist principle
not the smallest demand may rightfully be made of
a single person if this be the manner of, and the
sole motive for, making it.

Nor can the subordination of the welfare of the
individual to that of the species which is seen in
the evolutionary process be defended upon a basis of
utilitarian ethics. If, as Mr. Spencer and his school
hold, utility be the determining criterion of rightful-
ness, then a sense of moral obligation cannot be
conceived to exist except when the individual to be
obligated himself recognizes the utility of the act
demanded. If then, in any instance, the individual

280 SOCIAL JUSTICE

should assert, as indeed almost all individuals, if
questioned, would assert, that he considers the wel-
fare of future generations of less value to him than
his own welfare or life, we cannot demand that such
a one should feel morally obligated to obey the given
behest. In case of refusal it might, upon utilitarian
grounds, be justifiable for society at large to coerce
him, but it could not judge him morally recalcitrant,
nor could the victim feel otherwise than oppressed.
Inasmuch, therefore, as in the unrestricted struggle
for existence it is the nine-tenths that are sub-
merged in order that the one-tenth shall survive,
the evolutionary system must, upon utilitarian
grounds, be oppressive and irrational to the great
majority of the individuals affected by it.

This is precisely the point seized upon by Benjamin
Kidd in his book, Social Evolution. Building in the
main upon Spencerian premises, Kidd declares that
when that process of development which is helplessly
and unthinkingly submitted to by the brute creation
is examined in the light of men's reason, it is seen to
be, as to the majority of individuals, an essentially
irrational one. The reason why men have not long
ago sought to end this destructive competition has
been due, he declares, to the fact that religion has
supplied super-rational or irrational sanctions to sus-
tain social subordination. There are inherent defects
in Mr. Kidd's argument, both as to the rational, or
rather the irrational, character of all religious beliefs,
and as to that absolute hostility of the interests of
the individual to those of society which he states

THE ETHICS OF THE COMPETITIVE PROCESS 281

in the broadest manner possible. Of these we will
speak later. But certainly Mr. Kidd's theory that,
from the standpoint of the individual, the simple
biologic process of evolution cannot be defended
upon utilitarian grounds, is correct.

As regards the third implied assumption of Mr.
Spencer, that an unrestricted struggle for existence
is as beneficent among human races as among sub-
human species, the objections that may be urged are
so numerous as to render difficult their treatment
within the compass of a single chapter. The gist of
them all is, however, contained in the two follow-
ing statements of fact : First, that it is the general
desire, as well as the true duty, of man not simply
to live, but to live well. Second, that man as a
rational being has the ability to modify his rela-
tion to his environment, either by consciously
adapting his maimer of life to it, or by altering
its conditions.

The first truth has been well stated by President
Schurman in a review of Mr. Spencer's Justice in the
Philosophical Eeview. " The receipt," says President
Schurman, " of the natural consequences of an indi-
vidual's nature, active or quiescent, wherein Mr.
Spencer discovers the essence of justice, seems to me
to be neither just nor unjust, neither right nor wrong,
neither moral nor immoral. No doubt this process
has made the later generations of animals stronger,
more cunning, and better adapted to the environment
than the earlier generations. And were we aiming
at a similar improvement in the breed of man, we

282 SOCIAL JUSTICE

might perhaps not be able to do better than let the
process of natural selection go on undisturbed. In
that case we should have no charities for the poor,
no hospitals for the sick, no protection for the weak
and helpless. If the goal be the superiority of future
generations, let the least forward varieties be elimi-
nated. But there is no reason or excuse for such
consequences when it is recognized that the concep-
tion of human welfare as ethical end implies, first of
all, the well-being of existing humanity, each member
of which is to be treated as an end in himself, never
as a mere means to other ends, and then, secondarily,
the welfare of future humanity — but only in so far
as is compatible with the just claims of every living
child of man. Mr. Spencer's moralization of natural
selection is not demanded by an ethical system which
places the supreme end in the welfare of the species,
nor is it in itself inherently defensible. In the con-
tention that the biological law ' possesses the highest
possible authority,' because it records the process fol-
lowed in the maintenance and evolution of life, it
must be replied that even if this circumstance in-
vested it with ' authority/ — as it does not, — natural
selection, when it reaches the plane of rational life,
is subordinated to the higher principle of human
sympathy and sociality, which is the tap-root alike of
morality and of the organized community in which
it is realized. Ethics, accordingly, carries us into a
sphere — not merely of living, but of living well — in
which the biological formula is without application." 1

»VoLI,No.l.

THE ETHICS OF THE COMPETITIVE PROCESS 283

In other words, with the advent of rational, self-con-
scious, moral man, the aims of life are so changed as
to render inappropriate that process of development
which is efficient in the lower animal world. With
self-consciousness comes the appreciation on the part
of the individual of the possibility of a personal per-
fection, the formation in idea of a happier and better
life than a mere animal existence. Whether the
formation of such an ideal be the result of a divine
afflatus or the effect of race experience, its existence
is undeniable.

In the light, then, of this new conception, the term
"fit for survival" assumes a new significance. Fit-
ness now means ethical fitness. As has been said by
another of Mr. Spencer's critics, social progress thus
becomes a progress " the end of which is not the sur-
vival of those who may happen to be the fittest in
respect of the whole of the conditions which obtain,
but of those who are ethically the best." 1 When,
now, to this ethical element, contributed by self-con-
sciousness, we add the cognitive factor of reason,
which suggests the possibility, as well as the means,
by which man may take active steps to realize his
new desires, we render almost self-evident the princi-
ple that should govern both individual and social
action. This is, in short, that the slower and more
expensive method of structural development by
means of the biologic law should be supplanted by
a process devised by the intellect of man, in which
the operation of the former law is checked where

1 Huxley, Evolution and Ethics.

284 SOCIAI* JUSTICE

it is seen to lead to evil or to entail an unnecessary
amount of waste and suffering.

Professor Huxley in the address from which we
have already quoted has elaborated this principle
with great clearness. "Men in society/' he says,
" are undoubtedly subject to the cosmic process. As
among other animals, multiplication goes on without
cessation, and involves severe competition for the
means of support. The struggle for existence tends
to eliminate those less fitted to adapt themselves to
the circumstances of their existence; the strongest,
the most self-assertive, tend to break down the
weaker. But the influence of the cosmic process on
the evolution of society is the greater the more rudi-
mentary its civilization. Social progress means a
checking of the cosmic process at every step and the
substitution for it of another, which may be called
the ethical process ; the end of which is not the sur^
vival of those who may happen to be the fittest, in
respect of the whole of the conditions which obtain,
but of those who are ethically the best/ 9 And he
continues : " The practice of that which is ethically
best — what we call goodness or virtue — involves a
course of conduct which in all respects is opposed to
that which leads to success in the cosmic struggle for
existence. In place of ruthless self-assertion it de-
mands self-restraint; in place of thrusting aside or
treading down all competitors, it requires that the
individual shall not merely respect but shall help his
fellows ; its influence is directed not so much to the
survival of the fittest as to the fitting of as many as

THE ETHICS OF THE COMPETITIVE PROCESS 285

possible to survive, . . . Laws and moral precepts
are directed to the end of curbing the cosmic process
and reminding the individual of his duty to the com-
munity, to the protection and influence of which he
owes, if not existence itself, at least the life of some-
thing better than a brutal savage."

While the main conclusions reached by Huxley in
his Romanes address have received very general
acceptance, two more or less technical criticisms have
been made upon his mode of stating them. It has
been questioned, in the first place, whether he has
not distinguished too sharply between the ethical and
cosmic processes. In the quotations which we have
made it is seen that apparently he makes the two
processes mutually exclusive and antagonistic. But
it may be asked, However much the ethical process
may differ from the competitive process which pre-
vails among the beings of lower creation, does not
the former, as much as the latter, constitute a part
of the general cosmic process ; and does not, in truth,
an adequate connotation of the term " cosmic pro-
cess " comprehend all stages and methods of phenom-
enal development — a development which, however,
may assume one form in the sub-human sphere and
another in the human world ?

Undoubtedly an affirmative answer must be given
to this question, as no doubt Huxley himself would
agree. In fact, though some of his expressions would
point otherwise, we may in justice doubt whether
he was in his address even temporarily led to think
otherwise. It has been pointed out that Mr. Huxley

286 SOCIAL JUSTICE

may have been consciously using, for the time being,
the language of the unscientific, and the quotation
from Seneca with which he prefaces his paper, Soleo
enim et in cdiena castra transire, non tanquam trans-
fuga zed tanquam exploratory may indicate this. 1
Moreover, we have, in the Prolegomena which Mr.
Huxley has prefixed to his address, the virtual admis-
sion of the point. In comparing the progress of
plants under artificial and under natural selection, he
says, "Thus it is not only true that the cosmic
energy, working through man upon a portion of the
plant world, opposes the same energy as it works
throughout the state of nature, but a similar antago-
nism is everywhere manifest between the artificial
and the natural." And in a note he adds : " Or, to
put the case still more simply: When a man lays
hold of the two ends of a piece of string and pulls
them with intent to break it, the right arm is cer-
tainly exerted in antagonism to the left arm; yet
both arms derive their energy from the same original
source."

This is satisfactory so far as it goes, as admit-
ting or showing that the processes of life and
development which go on in the human and sub-
human spheres constitute parts of one general
cosmic scheme ; but the implication is still left that
the so-called ethical process is both essentially different
from, and antagonistic to, that process which is dis-
played in the lower realms of life. And this leads
to the second general question regarding Mr. Hux-

1 By Miss White, International Journal of Ethics, Vol. V, p. 478.

THE ETHICS OF THE COMPETITIVE PROCESS 287

ley's position. This is whether the ethical process
does in fact have, either for its aim or its result, a
cessation of the competitive principle ; and whether,
therefore, the ethical principle does in fact differ in
kind from the evolutionary principles of "struggle
for existence" and "survival of the fittest." In
other words, cannot we take Mr. Huxley's homely
example, and say that though, to he sure, the two
arms in stretching the string do, in a certain sense,
pull in opposite directions, yet their modus operandi
is essentially the same and, what is more important,
they both have the same aim in view, namely, the
stretching or breaking of the twine?

Now, as all agree, the aim of all striving, whether
animal or human, is life and development. The
difference between the evolutionary process among
men and among animals cannot, therefore, consist
in the general end sought to be attained. What
difference there is can only consist in the different
«ort of life or development striven for. This, indeed,
is a very great difference, but is not one which
would distinguish generically the two processes.

Professor John Dewey has called attention to the
fact that there is no distinction in kind between
those brute instincts which Mr. Huxley calls natural
and those higher instincts which he calls moral. 1
The animal impulses and all natural impulses are not
per se moral or immoral ; they are the basis for all
moral action, and whether moral or immoral depends
upon how and for what purpose they are exercised.

1 Monist, VoL VIII, p. 32.

288 SOCIAL JUSTICE

Thus both natural and social selection operate alike
in so far as each implies adaptation to environment.
The essential difference between the two processes
consists, as has been before suggested, in the fact
that what is unconscious with the brute is conscious
with man, and that with this consciousness comes
moral responsibility for the manner in which capaci-
ties are exercised, and the character of ends toward
the attainment of which efforts are directed.

But, it may still be asked, do not the forms of
development sought for by men differ so radically
from those striven for by members of the lower living
world as to necessitate methods that are essentially
distinct ? At first sight it would seem so, for, as we
have already seen, one of the prime characteristics of
the ethical regime is at once to put an end to many
forms of competition which reign supreme in the
realm of lower life. Yet, when we look at the
matter closely, we find that in reality that for which
ethical man seeks is not necessarily to check the com-
petitive process, bat rather to fix, as criteria of fitness
for survival, characteristics different from those estab-
lished by purely biological laws. The aim is thus not
so much to check the stream of competitive energy
as to direct it into different channels. The " struggle
for existence " still remains, and through it develop-
ment is secured, but the weapons used are changed,
and the tests of superiority altered to meet the
requirements of the new forms of development
desired. This is a point which has been made very
plain in the article by Professor Dewey from which

THE ETHICS OP THE COMPETITIVE PROCESS 289

we have already quoted. Competition still persists,
but it is no longer one simply for life, or based
upon the mere physical, or lower intellectual, attri-
butes. In the human world the struggle becomes
one the conditions of which are moralized by the
presence of sympathy, ideas of justice, and in general
those ideals of personal perfection which man's devel-
oped mentality discloses to him. The bare struggle
for existence, to be sure, still goes on to a very
considerable extent among the lower wage-earning
classes, and this, unfortunately, often approximates
in severity, cruelty, and wastefulness the competi-
tion of the sub-human regime. But above these
classes, as the higher stages of social life are reached,
the competition is modified by the conditions of
which we have spoken. And, even as to the lower
classes, the effort of much modern legislation is,
while not destroying competition, to raise its moral
plane by the enactment of laws regulating the con-
ditions under which, and the persons by whom, ceiv
tain forms of more arduous and dangerous work shall
be performed. This legislative effort is also supple-
mented by the endeavors of school and church — the
one seeking so to develop the minds, the other so to
stimulate and direct the motives and emotions, of the
members of the lower classes that they may secure,
through their own efforts, an amelioration and
moralization of their life-conditions.

Even in those cases, however, in which the morali-
zation of human efforts seems to necessitate a check-
ing of the struggle for simple survival, a deeper

290 80CIAL JUSTICE

insight discloses that in many instances this is not
the case. Struggle for existence means nothing
more than a striving for adaptation to environment.
It is thus possible to show that, even upon a purely
utilitarian basis, many of our most common altruistic
acts are socially self-serving ; that, though they call
for temporary sacrifices, they serve ultimately to
excite emotions and to create habits which are
socially beneficial. Thus, for example, Professor
Dewey points out that in caring for the sick and help-
less "we develop habits of foresight and forethought,
powers of looking before and after, tendencies to
husband our means, which ultimately make us the
most skilful in warfare. We foster habits of group-
loyalty, feelings of solidarity, which bind us together
by such close ties that no social group which has not
cultivated like feelings, through caring for all its
members, will be able to withstand us. In a word,
such conduct would pay in the struggle for existence
as well as be morally commendable." l

Finally, upon this point, it is to be observed, as
exhibiting from still another standpoint the essential
similarity between social and animal methods of
development, that these so-called altruistic elements
which characterize human civilization are by no
means absent from the sub-human world. Not to
speak of that dependence of offspring upon parent
which exists among almost, if not all, orders of life,
there is, at least among the members of the higher
animal species, an interdependence that often implies

1 Loc. ciL

THB ETHICS OF THE COMPETITIVE PBO0E88 291

self-sacrifice, and leads to substantial cooperation.
It may be that such actions are not due to conscious
ethical motives, but they result at any rate in de facto
altruism and cooperation. As Mr. Leslie Stephen
has said : " It may be anthropomorphic to attribute
any maternal emotions of the human kind to the
animal. The bird, perhaps, sits upon her eggs
because they give her an agreeable sensation, or if
you please, from a blind instinct which somehow
determines her to the practice. She does not look
forward, we may suppose, to bringing up a family,
or speculate upon the delights of domestic affection.
I only say that as a fact she behaves in a way which
is at once injurious to her own chances of individual
survival and absolutely necessary to the survival of
the species. The abnormal bird who deserts her
nest escapes many dangers, but if all birds were
devoid of the instinct, the bird would not survive a
generation." *

This inclusion of the ethical within the cosmic
process removes the last possible ground of support
for that fear which Mr. Spencer expresses in his Man
versus the State, that man in attempting to interfere
with competitive laws is setting himself against
august nature as natura naturans — that he is, in
effect, pitting the microcosm against the macrocosm.
The danger of this proceeding, he declares, is appar-
ent in its very terms. Thus he says: " If the political
meddler could be induced to contemplate the essen-
tial meaning of his plan, he would be paralyzed by

1 Social Rights and Duties, I, p. 235.

292 SOCIAL JUSTICE

the sense of his own temerity. He proposes to sus-
pend in some way or degree that process by which
all life has been evolved."

This fear of Mr. Spencer lest the cosmic forces be
interfered with by man is one constantly reiterated
by him. Yet does Mr. Spencer pretend to say that
it is possible for man to defeat the operation of a
natural or cosmic law ? Or, if he does, where does
he draw the line between purely natural or cosmic
action and artificial action ? If he would apply his
censure to any effort on the part of man to escape
from the operation of the competitive law, should
he not, we may ask, extend his condemnation to any
and all efforts of individuals of the brute creation to
avoid danger and to bring themselves into better
adjustment of their milieu? Does not, in fact, all
life, human as well as animal, imply a struggle for
adaptation to environment ? Also, it may pertinently
be asked, Why, if man is, as Mr. Spencer holds, able
so potently to affect for evil the operation of natural
forces, may he not, conceivably at least, be able to
use his power for the accomplishment of good ? Or
are natural laws of such a peculiar character that,
though modifiable, they are modifiable only for the
worse?

As a matter of fact, when traced to its source, it
is found that Mr. Spencer everywhere betrays in his
writings what may be called a personal hostility
toward governments. Though at times he speaks
of government as subject in its life and development
to cosmic evolutionary laws, he nevertheless, when

THE ETHICS OF THE COMPETITIVE PROCESS 293

treating its other than pure police functions, uni-
formly considers it as something unnatural, artificial,
existing apart from nature, as having interests nec-
essarily different from, if not absolutely antagonistic
to, those of its subjects, and as using them but as
means for the realization of its own and necessarily
evil ends. The attitude of mind of Mr. Spencer is
of course explainable by the fact that in his study
of past conditions, he has for the most part dis-
covered governments controlled by oligarchies and
administered selfishly in the interests of those in
power. We reply, however, that though such condi-
tions may serve to show why in the past evil results
have so often followed governmental action, they
have no power whatever to show that such will in-
evitably be the outcome in the future. Not only this,
but we may without conceit declare ourselves freed
from much of the ignorance under which our ances-
tors labored. Also we may point to the fact that no
longer is political power in the hands of the minority,
nor exercised in its behalf, but that in theory wholly,
and in practice in large part, government by the
people and for the people as a whole is a realized fact.

The criticism just made of Mr. Spencer's theories
will serve as a basis upon which to make an estimate
of the value of much of the reasoning of Mr. Kidd
as contained in his Social Evolution. like Spencer,
Kidd accepts unreservedly the application of the
purely biological laws of evolution to social man,
and, as a necessary consequence, condemns as ill

294 80CIAL JUSTICE

advised all efforts directed to the checking of their
operation. 1 Upon this ground he conceives social-
istic schemes fundamentally defective, and recom-
mends in their stead all forms of social or political
action which will in any way remove present hin-
drances upon competition. He is optimistic enough
to believe that the present trend, of Western civiliza-
tion at least, is in this direction. In his closing
pages he says : " The central fact working itself out
in our midst is one which is ever tending to bring
about, for the first time in the history of the race,
all the people into competition of life on a footing
of equality of opportunity. In this process the prob-
lem with which society and legislators will be con-
cerned for long into the future will be how to secure
to the fullest degree those conditions of equality,

*Mr. Kidd's views in this respect are rendered still more radical
by the fact that he accepts the views of Weismann and his school
that " acquired characteristics " are not inherited. The effect of this
is, of course, to throw the entire burden of progress upon natural
selection as secured by the competitive process. He is thus neces-
sarily led to declare that progress will be the most swift where the
number of men born into the world is greatest in excess of the means
Of possible subsistence, for under such circumstances the competition
will be the keenest, the weeding out of the inefficient most rapid, and
the selection of the fit most exact It is a perfectly obvious fact,
however, that history shows this not to have been the result among
men. This incongruity of fact and theory should alone have been
sufficient to warn Kidd that his premises needed revising. In this
connection, also, we might call attention to the fact, excellently
brought out by Mallock in his Aristocracy and Evolution, that very
much of the competition that has existed among men has been
between employers rather than the employed, and has thus been a
struggle not so much for subsistence as for dominion and other
satisfactions. Upon this point see also a review of Kidd's work by
Theodore Roosevelt in the North American Review for July, 1896.

THE ETHICS OF THE COMPETITIVE PROCESS 295

while at the same time retaining that degree of
inequality which must result from offering prizes
sufficiently attractive to keep up within the com-
munity that stress and exertion without which no
people can long continue in a high state of efficiency."

There is much truth and value in what Kidd has
shown us; and to the doctrine contained in the
quotation which we have just made there can
scarcely be given anything but praise. For, as we
have seen, the result of our own inquiries has been
to show, not only the necessity for, but the actual
persistence of, competition among men even in the
highest social states. The pity is, then, that in the
body of his work Kidd, like his teacher Spencer,
should nowhere have properly characterized, or appar-
ently comprehended, what should be the true char-
acter of this competition, but should have interpreted
it as practically equivalent to that mere struggle for
life and subsistence which characterizes the sub-
human sphere. It is furthermore unfortunate that
he should have largely covered over what value
otherwise belonged to his work by a conception of
religion and of its social value almost wholly er-
roneous, and have emphasized this error by an
attempted historical analysis of the progress of West-
ern civilization which, aside from the errors arising
from the false premises regarding the character and
influence of religious beliefs, displays a frequent
ignorance or omission of important facts.

The work is injured also by the assertion, obviously
untrue in fact and unnecessary indeed to his own

296 SOCIAL JUSTICE

thesis, of an unavoidable and complete opposition
between the interests of the individual and of the
society of which he is a member. Thus in one place
he says, " The interests of the social organism and
those of the individuals composing it at any time are
actually antagonistic ; they can never be reconciled,
they are inherently and essentially irreconcilable."
In justice to Kidd it should be said that he elsewhere
qualifies the above statement to the extent of imply-
ing that some individuals may have an interest in
the social welfare. This, while convicting him of
inconsistency, relieves him at any rate of absurdity.
Let us stop for a moment, however, to see what is
meant by the declaration that the interests of even
a majority of the individuals of the present day are
necessarily antagonistic to those of the society which
they constitute. This, even in its qualified form, is
a most serious and startling assertion. The general
argument of Kidd shows that he means by this dec-
laration that all individuals are by nature selfish;
that, rationally, they conceive, or should conceive,
their highest welfare to consist in material self-satis-
faction ; and that consequently the welfare of future
generations cannot possibly enter as a reasonable
factor into the determination of their conduct or
ideals. To the statement of this ethical principle is
joined the assertion that race or social progress is
possible only through a competitive process which
involves misery and destruction to a great majority
of the participating individuals. From these two
assertions the principle is deduced that, were the

THE ETHICS OF THE COMPETITIVE PROCESS 297

men of the present day to act from purely rational
motives, they would put a stop to this competitive
struggle by the institution of some sort of socialistic
scheme which would benefit themselves, but which
would at once put an end to social progress; and
would, in fact, inaugurate a process of degeneration.
This would, of course, mean that future generations
would suffer from such a policy, but those now living
would realize a higher degree, or at least a greater
amount, of comfort and pleasure than would other-
wise fall to their lot.

The bald utilitarianism and the consequent irra-
tionality of all pure forms of altruism which Kidd
maintains we cannot stop to criticise. To some
extent what has already been said in the argument
which has gone before will serve the purpose. But
admitting for the nonce that self-interest in its strict-
est sense should rule, is it true that individual and
race interests are antagonistic and irreconcilable ?

If Kidd had merely said that, as at present organ-
ized and operated, our social system is one in which
race progress is secured at the expense of individual
welfare, that would have been a simple statement of
fact, to answer which it would merely be necessary
thoroughly to examine existing social conditions, and
from such an examination to determine, if possible,
whether or not this were so. But this is not what
is declared. In Social Evolution the assertion is
made, and declared to have been demonstrated, that
the two interests, race and individual, are inherently
irreconcilable ; that, in other words, it is impossible,

298 SOCIAL JUSTICE

under any conceivable social regime, to secure at once
race progress and general individual success.

The demonstration of the incorrectness of this
assertion depends directly upon the same reasoning
which we have applied to the theories of Spencer.
The source of the error of Kidd lies in his failure to
comprehend the full possibilities of the competitive
principle. To him, filled as his mind is with the
laws of mere physical life, competition seems to
mean little more than a struggle for sustenance and
bare existence. We are in hearty accord with Kidd
as to the general beneficence among men of a regime
in which merit and success are determined by a fair
and free contest, and we confess our inability to con-
ceive of any other distributive method that would be
of equal social efficiency, either for stimulating the
development of desirable characteristics, or for bring-
ing into the fullest and most effective operation those
abilities which already exist ; but we differ from him
in that we hold that men are so endowed intellectu-
ally and emotionally as to render it at least conceiv-
ably possible for them so to conduct their competitive
efforts as to secure at once the progressive improve-
ment of their race and a life of relative prosperity
and happiness for themselves. In other words, con-
trary to Kidd, we believe that, whatever may be our
present state, we are not shut off from conceiving a
possible one in which, while admitting to the fullest
the competitive principle, social methods will be so
perfected that through a wider diffusion of knowledge,
a better adjustment of relations between employer

THE ETHICS OF THE COMPETITIVE PROCESS 299

and employed, a more enlightened sense of moral
responsibility, and a more nearly perfect organization
of industry generally, not only will the means be
given to each individual to make known the capa-
bilities, manual or intellectual, which he possesses,
but the opportunity afforded for exercising those
talents in a manner both remunerative to himself
and useful to society at large. Thus, through the
employment of forces at their maximum degrees
of efficiency and through the diminution of waste
now due to enforced idleness and misdirected efforts,
it may be hoped that the aggregate economic prod-
uct will be greatly increased, and at the same time
that the conditions which we have mentioned above
will secure its distribution according to correct prin-
ciples of justice. Under such circumstances we
believe that future social progress would be possible,
and at the same time a regime maintained which
would be rational and beneficent to the individuals
affected by it.

What we have thus far said has been in answer
to the thesis of Kidd that individual and race interest
are necessarily, and therefore forever, irreconcilable.
As a matter of fact, however, we hold, as do of
course the great majority of thinking men, that our
social system, even as it is at present constituted and
conducted, possesses a present utilitarian rationality
to the great majority of individuals. At the same
time we admit that there are some as to whom this
assertion does not hold true. When, for example,
we have able-bodied men or women seeking work

800 SOCIAL JUSTICE

earnestly and unable to find it, or individuals
deprived of such means of education as are fairly
needed to bring to light abilities possessed, or indi-
viduals endowed with peculiar talents in particular
directions and unable to obtain opportunity for
their application or development, it can scarcely be
said that, as to such individuals, the existing social
system is rationally justified.

In the formation of an estimate as to how many
such unfortunate individuals there are in any given
society, it may be argued that whether or not a con-
dition be rational to an individual upon a utilitarian
basis must necessarily be left to the determination of
that individual. His idea of pleasure or success, it
may be said, may differ from our own, but as long as
the conditions by which he is surrounded meet his
own tests we cannot say that he is a victim to the
social or political system that is maintained by his
race.

If such an argument be raised, it is at once seen,
however, that it will serve to justify, in this respect
at least, some of the very worst civilizations. In
fact, the lower the state of civilization, the easier
and more complete would the justification be, for it
would be exactly under those conditions that the
individuals would be so ignorant and brutal that
they would have neither the ability nor disposition
to reason intelligently regarding their best interest.
It is therefore a sufficient answer to this plea to say
that the conditions under which such individuals
have lived have never been such as to present a

THE ETHICS OP THE COMPETITIVE PROCESS 301

possibility for the formation of truer and higher
ideals of happiness and personal welfare.

To this it may be rejoined that this still implies
that the one passing the judgment upon a society
determines its rationality according to a standard
which he himself sets up, and not according to one
erected by the individuals themselves. This is true,
and must necessarily be so. In the formation of any
judgment whatever, a critic must have established
for himself an ideal or standard, in comparison with
which the facts under consideration are judged and,
by their conformity or nonconformity to it, justified
or condemned. In this sense every estimate of value,
moral, economical, or political, is necessarily subjec-
tive. But it is not subjective in so far as the one by
whom it is formed or stated eliminates from it all
elements of personal bias or peculiarity. Thus, to
take the example we have mentioned, if the critic
has no regard for what he, individually, with his
own personal peculiarities, most desires, but considers
solely what form of welfare, looked at from the
highest ethical standpoint, would be most suitable
to the individuals concerned, and which would
indeed be most acceptable to them were they
properly informed, an objective opinion is given.

From the utilitarian standpoint, then, there are
two standpoints from which any given society may be
declared to be irrationally organized or directed. It
may either be alleged that it fails to provide for a
possible happiness of a considerable number of its
individual members, according to the standard which

302 SOCIAL JUSTICE

they set up ; or it may be claimed that, though it
may provide a possible happiness to all according to
their own standards, it yet fails to provide that
intellectual and ethical development which is neces-
sary to secure the formation of better ideals. It is
easily possible for a given social regime to be held
delinquent upon either or both of these counts.

It will be noticed that care has been taken in the
foregoing to make use of the phrase " possible happi-
ness." The propriety of this is obvious. A social
regime cannot be held responsible for unhappiness
due to the wilful misconduct of a sufferer, as, for
example, where one, either by failing to make use
of the opportunities fairly presented to him, or by
deliberately selecting the more evil of two courses or
refusing to sacrifice a present pleasure for a greater
good, has brought harm upon himself. In passing
judgment upon the rationality of a regime as to its
effects upon individuals, the question is thus not as
to what number of individuals are unsuccessful and
miserable, but as to what number are so because of
the existence of that regime. Where failures are
due to personal faults or failings, and not to circum-
stances over which the individuals have no control,
there is reaped only that which has been sown, and
social conditions cannot be indicted for the result.

What has been said regarding the necessity of
framing a social ideal before it is possible to pass a
judgment upon any given regime implies two facts
which Kidd and many others seem not to recognize,
or at least to state. These are, first, that happiness,

THE ETHICS OF THE COMPETITIVE PROCESS 808

prosperity, welfare, success, or whatever similar terms
may be used, are not of absolute value, but relative
to a standard of conceived perfection ; and, secondly,
that, in a strict sense, no condition of affairs which
is subject to human direction is absolutely rational
unless ideally perfect. In this strict sense, therefore,
in so far as any regime falls short of perfection, its
continued maintenance is irrational.

In the light of the first fact the great majority of
the participants in any general contest must neces-
sarily fail. If success be judged by the achievements
of the one or few most successful, the entire remain-
der fail. Indeed, in many cases it may even be
held that all have failed, inasmuch as the most
successful may have fallen far short of that which
was not only desirable, but possible of attainment.
But — and here is the point — this by no means
proves that as to the whole, or even as to the less
successful portion of the people, the contest has been
a failure. There is still a possibility that all, or
nearly all, have received benefit from the struggle,
though, to be sure, some have been relatively more
rewarded than their fellows. For those who believe
as fully as does Kidd in the efficiency of the competi-
tive regime in stimulating the energies and properly
directing the efforts of individuals, the presumption
is, in fact, that such will be the case under any indi-
vidualistic scheme of social organization.

Applying now the second fact of which we have
spoken above, we may ask what is the proper mean-
ing of the question, " Is a given social regime ration-

804 SOCIAL JUSTICE

ally justified?" Strictly speaking no completely
rational social regime has ever existed, nor will such
a one exist until that form of organization and man-
ner of administration is effected under which not
only race progress at the most rapid possible rate is
secured, but complete opportunity afforded to every
individual member to render effective every capabil-
ity which he possesses, and to develop every power
potentially possessed, and, finally, under which is
guaranteed to all the just results accruing from their
several activities. When, then, it is said by Kidd
that present social conditions are without a rational
basis, he is right in the sense that they are not all
that they should be. But this, as we have seen, is
not the comparison which Kidd makes. His asser-
tion is that past and present social regimes, so far
as they are competitive, are irrational when viewed
from the individualistic standpoint; and, so far as
non-competitive, irrational when viewed from the
social standpoint. He thus excludes the possibility
of a regime rational from both standpoints. He is,
therefore, unable to conceive of an absolutely ideal
state, though, as between the two, he prefers that
absolutely competitive state in which the progress of
the race is best secured.

For the sake of clearness, we will state again our
position. We agree with Kidd in believing that the
absolutely competitive state is the ideal one ; but we
disagree with him as to the impossibility of securing
general individual welfare thereunder. When we
speak of the ideal goal of human progress necessitate

THE ETHICS OF THE COMPETITIVE PROCESS 305

ing the establishment of an absolutely competitive
regime, we qualify this by adding the condition that
competition is to be maintained only upon the very
highest planes. The regime must be one in which,
as has been already implied, the criteria of fitness
for success or survival will be the possession of abso-
lutely the highest moral qualities. This naturally
implies the disappearance of all the lower and more
brutalizing forms of strife, and with them the avoid-
ance of all the unnecessary forms of suffering to
which they give rise. It means that no one shall
find himself born into a social world in which he is
to any degree so bound by social requirements or so
hindered by the intricacy of the economic machinery,
in the management of which he constitutes but an
insignificant agent, that he is unable to develop to
the fullest his capacities, to educate to the fullest
his desires, and to reap to the fullest the rewards of
his individual merit. Thus interpreted, it needs no
imaginative development to show that in a society
so organized there would need be no sacrifice of the
welfare of individuals, either present or to come.
Thus, as a result of his long course of reasoning,
we are finally brought to sustain the thesis of
Mr. Spencer which we originally criticised, namely,
u that the interests of humanity are to be best sub-
served by giving full effect to the law that each
individual shall receive the benefits and evils of his
own nature and its consequent conduct." It is only
in the interpretation of this rule that we have differed
widely from that philosopher.

806 SOCIAL JU8TICE

It is especially in the bearing of the rule upon the
question of the legitimate extent of social control
that we are at variance with him. To us its recog-
nition as a principle would carry with it no necessary
demand for a diminution in the functions of govern-
ment. Its recognition would, to be sure, imply a
change in character and motive of many of the
State's present activities, but would not necessarily
decrease their aggregate amount. It would involve
the disappearance of many forms of industrial inter-
ference that now exist, and the abandonment of all
of the cruder forms of state socialism. But it would
permit a vast extension of the present regulative
and educational functions of the governing powers.
The State's regulative powers could be made to
embrace all those functions which are necessary:
first, to prevent the limitation of the freedom qf
individuals, such as is sometimes attempted by such
organized bodies as churches, labor unions, political
societies, and industrial combinations ; and, secondly,
to secure competition along the highest lines, by
providing that certain forms of work shall be car-
ried on under prescribed conditions, as regards, for
instance, hours of work, employment of women and
children, and maintenance of hygienic conditions.

The educational functions of the State could in
like manner be subjected to almost indefinite exten-
sion. They could be made to include, not only the
collection and dissemination of every variety of infor-
mation, statistical or otherwise, which could be of
possible value to the people, but could also properly

THE ETHICS OF THE COMPETITIVE PBOCES8 807

be made to embrace the more directly pedagogic task
of providing for the freest and most adequate instruc-
tion in all forms of human knowledge, practical and
speculative.

Such activities as the above would not necessarily
be anti-competitive or socialistic in character. In
my book The Nature of the State, after dividing the
functions of the State into essential and non-essential
duties (meaning by non-essential, all those activities
assumed by the State, not because their exercise is a
sine qua non of the State's existence, but because
their public administration is supposed to be advan-
tageous to the people), I called attention to the fact
that this latter class is separable into two divisions
which may properly be termed socialistic and non-
socialistic. The socialistic duties properly compre-
hend only activities which can and will be exercised
by the people if left to their private initiative. Their
assumption is, therefore, to that extent, a curtailment
of industrial freedom of the people. The non-social-
istic duties include those which, if not assumed by
the State, either cannot or will not be exercised at
all. As I said in the work to which I have referred :
" They are duties not essential to the State's exist-
ence, and yet, from their very nature, not likely or
even possible of performance by private parties. Such
duties as these are, therefore, not socialistic, because
their public assumption does not limit the field of
private enterprise, nor in any way interfere with pri-
vate management of any sort of industry. As a rule
they are powers educational in character rather than

808 SOCIAL JUSTICE

coercive, directive rather than controlling. Under
this head come all those administrative duties that
are of an investigating, statistical character, and
consist, not in the interference with industry, but in
the study of conditions and the diffusion of the infor-
mation thus obtained. Work of this kind is that
performed by the United States Departments of Labor
and Agriculture, by the Bureau of Education, the
Fish Commission, the Coast and Geodetic Survey, by
the Census Bureau, etc. Public libraries and reading
rooms, boards of health, the provision of public parks,
and certain branches of education also come under
this head. Their purpose is not to interfere with the
struggle for existence and the survival of the fittest,
but to transform the environment, and, by diffusing
sounder information concerning the character of the
conditions and the nature of the forces by which man
is surrounded, to render it possible for him either to
harmonize his efforts with them or to direct his
strength and intelligence to a modification of them ;
in fine, to increase his opportunities." '

But even the ownership and direct operation of
industrial concerns by the State are not necessarily
excluded by the adoption of the competitive principle.
As long as it appears that a given industry, if left in
private hands, will almost inevitably be subjected to
the control of some one or few commercial " trusts,"
whereby true or healthy competition is rendered
impossible, the assumption by the State of its man-
agement will at least not lessen competition ; while,

1 The Nature of the State, pp. 547-348.

THE ETHICS OP THE COMPETITIVE PROCESS 309

on the other hand, it will secure to the people gener-
ally the benefits flowing from the monopoly. This
control cannot, however, consistently with the com-
petitive principle, be applied so long as there is a
possibility of devising effective means for so control-
ling the organization and operation of monopolies
that a healthy competition may be obtained.

In the second place, aside from the qualifications
of the above, state operation of an industry may be
justified upon the competitive principle if by so doing
the industry is managed in such a way that a greater
degree of true competition will be maintained between
the individuals employed than would be the case
under private management. This we consider a very
important point, though not one which we remember
to have seen often urged. From the social stand-
point it is much more desirable that there should be
healthy competition between employees than that
there should be a contest between industrial concerns.
It is one of the chief evils of the present industrial
regime of production on a large scale that the chief
competition that exists is between working men and
women in securing employment. Positions once
secured, competition largely ceases. The employees
become merged in a large body of workers, and have
little direct personal interest in the work which they
perform. Even in those private industries in which
the wages paid are proportionate to the amount of
work done, the individual is not permitted, as a rule,
to exhibit his full degree of skill. In many cases it
is an unwritten law among such workmen that cer-

310 SOCIAL JUSTICE

tain maxima of piece work shall not be exceeded,
even by the most able and skilful, for the very
satisfactory reason that if such maxima are more
than occasionally exceeded the price paid per piece
by the employers will inevitably be reduced, with
the result, of course, that the most efficient will
henceforth receive no more than they would have
earned under the old scale, while all the remainder
will receive less.

If, then, we can have a governmental control in
which earnings are graded according to the amount
and character of work done, and in which a careful
inspection is maintained for the purpose of detecting
with reasonable certainty the presence of merit or
demerit in all their degrees, and of rewarding them
proportionately, either by increase or decrease of
wages, or by changing the character of work required,
then a truer and more beneficial competition will be
maintained than the old competition between con-
cerns which the governmental monopoly will destroy.
We are not, however, to be considered as maintaining
that any such beneficent governmental management
will be likely to result from public control, political
morality and intelligence being what they now are.
We should, in fact, expect the reverse. All that we
wish to point out is that the application of the com-
petitive principle would not necessarily, that is, under
all conceivable conditions, exclude such governmental
ownership and operation.

By way of summarization of the points of difference
between the conclusions to which we have been led by

THE ETHICS OF THE COMPETITIVE PROCESS Sll

the adoption of the competitive principle as an ideal
one, and those reached by Mr. Spencer in applying
the same principle, we may say : First, that, instead
of leaving individuals to conduct their contests in
their own way, unrestrained by social control, we
would justify all actions of the State which will tend
to raise the ethical plane of competition. Secondly,
we would justify state intervention where such inter-
vention is for the purpose of preventing oppression
of individuals by each other. Thirdly, we would
justify such intervention where, without it, monopolies
or trusts would be organized under private manage-
ment. Fourthly, we would justify state action where
its influence is educative, or where it is limited to the
performance of some duty which otherwise would not
be performed at all. Fifthly, we would justify state
action where, although its effect is to put an end to
certain forms of competition, its result is the stimula-
tion and maintenance of better forms of rivalry.

It is now necessary to answer one final question.
It may be asked whether these kinds of govern-
mental intervention which we have justified do not
rest for their justification upon the implication of a
certain amount of ignorance or viciousness on the
part of the people, and whether, therefore, it is not
true that as civilization advances the necessity for
this intervention will decrease, until finally, when
the final goal of human progress is reached, the
need for political control will have entirely dis-
appeared. If we answer yes to this, we in effect
affirm that, though the anarchistic state be not now

812 SOCIAL JUSTICE

desirable, it yet stands as an ideal continually to be
striven for and, possibly, ultimately to be realized.

This proposition has been and still is widely held.
Spencer in his Social Statics says : " It is a mistake
to assume that government must necessarily last
forever. The institution marks a certain stage of
civilization — is natural to a peculiar phase of human
development. It is not essential, but incidental. As
amongst Bushmen we find a state antecedent to gov-
ernment, so there may be one in which it shall become
extinct." 1 And again he says : " Does it [government]
not exist because crime exists? ... Is there not
more liberty, that is, less government, as crime
diminishes ? And must not government cease when
crime ceases, for the very lack of objects on which
to perform its function ? Not only does magisterial
power exist because of evil, but it exists by evil." *

Janet takes the same view in his Histoire de la
Science politique : " Imaginez [he says] en effet une
politique parfaite, un gouvernement parfait, des lois
parfaites, vous supposez par 1& meme des hommes
parfaits. Mais alors la politique ne serait plus autre
chose que le gouvernement libre de chaque homme
par soi-meme : en d'autres termes, elle cesserait d'etre.
Et cependant, c'est 1& sa fin et son id6al. L'objet du
gouvernement est de preparer insensiblement les
hommes & cet 6tat parfait de soci6t£, oil les lois et
le gouvernement lui-m6me deviendraient inutiles." 1

Hume, too, in his essay, Of the Original Contract,
says, "Were all men possessed of so inflexible a

* Edition 1873, p. 24. * Idem, p. 230. ■ VoL I, p. ci

THK ETHICS OF THE COMPETITIVE PROCESS 813

regard to justice that of themselves they would
totally abstain from the properties of others, they
had forever remained in a state of absolute liberty,
without subjection to any magistrate or political
society." The assertion of Jules Simon, that "the
State ought to render itself useless and prepare for
its own decease/' indicates the same view. So also
we find the late Professor Freeman asserting : " As
for discussions about any one ideal form of gov-
ernment, they are simply idle. The ideal form of
government is no government at all. The existence
of government in any shape is a sign of man's imper-
fection." l And, finally, to similar effect is the declara-
tion of Paine in his Common Sense, that " government,
like dress, is the badge of lost innocence."

What degree of truth is there in this conception of
anarchism or no-government as an ideal? In one
sense there is a good deal; in another, none. If
by anarchism reference is had to the absence of all
coercion, the conception is a valid one. If, however,
the idea is that all forms of public activities shall
disappear, it is invalid. As we have elsewhere
pointed out, all coercion is in itself painful, and
therefore an evil. An ideal social order must, there-
fore, be one in which the element of coercion is to
play no part. On the other hand, as we have also
pointed oJt, in so far as political laws or social con-
ventions me recognized as just by those whose actions
are to be 'controlled, no feeling of coercion is expe-
rienced. The absence of coercion which is ideally

\Historiccd Essays, Fourth Series.

811 SOCIAL JTJ8TIOB

demanded does not, therefore, necessarily imply the
disappearance of all forms of public activities and
regulations. In fact, were all men morally perfect
and intellectually enlightened, public activities would
in all probability be very widely extended. For with
men so perfect morally and intellectually, there would
be no difficulty either in establishing or operating an
administrative machine with any number of functions.
Controlled by such wise and upright men, the econo-
mies in production that would follow from the estab-
lishment of such a control would be obvious, and at
the same time the necessary competitive struggle
between individual workers could be maintained —
if, indeed, any competition would be needed to
stimulate the energies and to weed out the unfit in
a race already, ex hypothesis so nearly perfect.

It is true, however, that should such a state of
development ever be attained, many of what are
now among the most important of the functions of
the State would fall into disuse. The exercise of all
the punitive and, to a large extent, the educational
activities of the political authorities would become
unnecessary. Legislation would be needed, not so
much for the purpose of applying coercion, as for
the sake of providing such uniform rules as con-
venience would dictate. Civil as well as criminal
litigation would conceivably cease. Only the admin-
istrative duties of the State would remain. These
would probably be increased so as to include the
performance by the State of every possible service
that could, from the nature of the case, be better

THE ETHICS OF THE COMPETITIVE PROCESS 815

performed by a single agent than by the several
efforts, however harmonious, of private individuals.
By way of conclusion of this long inquiry, then,
it may be stated that we have reached a posi-
tion which sustains that portion of the theory of
the socialist which justifies the extension of state
activities in any conceivable direction where it can
be shown that, as a matter of fact, political control
will be followed by beneficent results. At the same
time, this does not commit us to the advocacy of
social control in any given case. An estimate of all
the considerations involved may indeed easily lead
us to advise the reduction of state duties to a mini-
mum below that now practised in any of our civilized
States. In truth, so far as the reasoning that has
gone before is concerned, the tendency has been to
emphasize the possibilities, both for race and individ-
ual progress, that are wrapt up in the competitive
principle.

CHAPTER X

PUNITIVE JUSTICE

Thus far in our work we have been examining
canons of justice as applicable to the distribution of
rewards. We turn now to the questions of right
involved in the apportionment of penalties or pun-
ishments.

Of the Distinction between Corrective and Dis-
tributive Justice. — Since Aristotle's time it has
been common to distinguish between distributive
and corrective justice. In his Nicomachean Ethics
the Stagirite says: 1 "Of particular justice, and of
the particular just which is according to it, one
species is that which is concerned in the distribu-
tion of honor, or of wealth, or of any of those things
which can possibly be distributed among the mem-
bers of a political community, for in these cases it is
possible that one person, as compared with another,
should have an unequal or an equal share ; the other
is that which is corrective in transactions between
man and man. And of these there are two divi-
sions, for some transactions are voluntary [i.e. we
take it, voluntary as to both or all parties concerned]
and others involuntary [as to one of the parties];
the voluntary are such as follow: selling, buying,

1 Book V, Chapter II, Bonn's edition.
316

I'UNITIVE JUSTICE 817

lending, pledging transactions, borrowing, depositing
of trusts, hiring ; and they are so called because the
origin of such transactions is voluntary. Of involun-
tary transactions, some are secret, as theft, adultery,
poisoning, pandering, enticing away of slaves, assas-
sination, false witness; others accompanied with
violence, as assault, imprisonment, death, robbery,
mutilation, evil-speaking, contumelious language."
In the next chapter, speaking of distributive justice,
Aristotle says, " If the persons are unequal, they will
not have equal things. . . . This is clear from the
expression ' according to worth ' ; for in distributions
all agree that justice ought to be according to some
standard of worth, yet all do not make that standard
the same ; for those who are inclined to democracy
consider liberty as the standard ; those who are in-
clined to oligarchy, wealth ; others, nobility of birth ;
and those who are inclined to aristocracy, virtue.
Justice is therefore something proportionate." In
Chapter IV, speaking of corrective justice, he says :
" But the other one [form of justice] is the correc-
tive, and its province is all transactions, as well
voluntary as involuntary. But this justice has a
different form from the preceding ; for that which is
distributive of common property is always according
to the proportion before mentioned. For if the dis-
tribution be of common property, it will be made
according to the proportion which the original con-
tributions bear to each other ; and the unjust which
is opposed to this just is contrary to the proportion-
ate. But the just which exists in transactions is

818 SOCIAL JTJ8TICB

something equal, and the unjust is something un
equal, but not according to geometrical but arithmet-
ical proportion ;' for it matters not whether a good
man has robbed a bad man, or a bad man a good
man, nor whether a good or a bad man has com-
mitted adultery ; the law looks to the difference of
the hurt alone, and treats the persons, if one com-
mits and the other suffers injury, as equal, and also
if one has done and the other suffered hurt. So the
judge endeavors to make this unjust, which is un-
equal, equal ; for when one man is struck and the
other strikes, or even when one kills and the other
dies, the suffering and the doing are divided into
unequal parts ; but then he endeavors by means of
punishment to equalize them by taking somewhat
away from the gain."

According to our views, the above distinction
between corrective and distributive justice is not a
proper one, all justice, from its very nature, being
distributive. That is to say, justice is ever a matter
of relative or respective desert as between two or
more individuals, or between individuals and the soci-
eties of which they are members. Strictly speaking,
therefore, the phrase " distributive justice," which we
have so often employed, is redundant. We have, how-
ever, believed that a concession to popular speech in
this respect would add clearness to our thought.

Aristotle's description, so far as it relates to that
equality of consideration which suitors, irrespective

1 For meaning of this distinction, see Nicamackean Etkin, Book V»
Chapter ILL

PUNITIVE JUSTICE 819

of their worths, may claim from the administrators
of the law, is a correct one. In civil wrongs it is
proper to say that the action of the law has for its
essential purpose the securing as far as possible the
status quo ante, that is, the putting of the parties
into that position in which they would have been
had the wrong not been committed. But, after all,
in so doing the courts are not determining and apply-
ing principles of justice except in the formal legal
sense. The principles of justice in their pure ethical
meaning have been determined when the sense of the
community in its customary law, or the legislature
in its enacted statutes, has determined what rules
shall be considered as just for the governance of men
in their dealings with one another, and what actions
shall be considered and treated as unjust and there-
fore wrong. This determined, the courts have but
the formal task of determining the facts involved,
and of applying the legal principles appropriate to
them. Thus we find that corrective justice so-called,
as applied to civil matters at least, is not justice at
all, except in a formal sense. It is simply the vindi-
cation of legal rights, irrespective of whether, under
the given circumstances, they are ethically valid or
not. That they are recognized by the law is suffi-
cient to make it incumbent upon the courts to nul-
lify, so far as possible, any violation of them, and
thus to bring about a condition of affairs which should,
from the legal standpoint, never have been disturbed.
How is it with corrective justice as applied to
matters of violence or crime ? Here, as we have

820 SOCIAL JUSTICE

seen, the implication of Aristotle is that the pen-
alties which the law enacts are for the purposes of
bringing about, so far as possible, a lost equilibrium.
When property obtained by crime is restored to its
owners, the status quo ante is, in a certain sense, re-
established. But this is a matter distinct from the
penalty which the law imposes upon one who has
violated its ordinances. In crime such a thing as
the reestablishment of antecedent conditions is impos-
sible. In some few cases it may be possible to visit
upon the offender a violence similar to that of which
he has himself been guilty, but there is no tendency
in such a proceeding toward a reestablishment of
those conditions which have been destroyed by the
act of the criminal. He has committed a violence,
and violence has been committed upon him, but the
latter violence does not blot out the former. Thus
we see that as to acts of force or violence, corrective
justice so called by Aristotle is not corrective in any
true sense. The moral element has entered in the
determination of what acts shall be considered as
crimes; and, this determined, the decision as to
what forms and degrees of punishment shall be
applied to those committing them becomes a ques-
tion of distributive justice.

The Importance of Crime as a Social Phenomenon.
— Few subjects there are either in ethical or political
science which approach in importance that of Crime.
The cost to society of crime in all its degrees and
phases is enormous. The figures of the federal cen-
sus for 1890 showed nearly eighty thousand inmates

PUNITIVE JUSTICE 321

of our prisons and reformatories, and this number,
following the estimate given us by experts that at
any one time probably not one-third of the total
number of criminals are in imprisonment, gave us
then a total criminal population of two hundred and
fifty thousand. To the loss arising from the destruc-
tion of life and property by the illegal acts of this
vast army, must be added the expenses of prevent-
ing, detecting, and punishing crime. In the United
States there are more than fifty large penitentiaries,
and over seventeen thousand country jails, police
stations, and city prisons. It is calculated that
$500,000,000 would be a low estimate of the cost of
these buildings. This is of course all dead capital.
At five per cent interest this sum would yield a
yearly income of $25,000,000. But even this waste
sinks into insignificance when compared with the cost
of supporting these institutions and our penal sys-
tems generally, including the maintenance of courts
and police forces. At a recent International Con-
gress of Criminal Anthropology it was stated that
the amount of money now spent by society for the
detection and punishment of crime amounts to over
$400,000,000 annually, an amount sufficient, if ex-
pended in a proper manner, to banish absolute want
from amongst us. Mr. Boies in a comparatively
recent work has declared that in 1890 the cost of
the penal, reformatory, and charitable institutions of
the state of Pennsylvania alone was equal to the
burden of a bonded debt of $275,000,000 bearing
interest at four per cent.

SOCIAL JUSTICE

Examining the theories which have been brought
forward by ethicists in justification of punishment,
we find that they may be described as : (1) Retribu-
tive, (2) Deterrent, (3) Preventive, and (4) Reform-
atory, respectively. In determining the value of
these theories it will be necessary, as was the case in
reference to the theories of justice as applied to the
distribution of rewards, to consider them not only
from the standpoint of abstract justice, but as to the
possibility of realizing them in practice.

The Retributive Theory. — Beginning with the
retributive, or as it may also be called, the vindic-
tive, or expiative, theory, it is to be observed first of
all that, in the strict sense of the word, only that
pain may be spoken of as punishment which is im-
posed simply and solely for the sake of the pain to
be felt by the one punished. According to the re-
tributive theory, through punishment the offender
expiates his offence, suffers retribution for the evil
which has been done, and thus is vindicated the
principle of justice which has been violated. Thus
says Godwin, in his Political Justice, " Punishment
is generally used to signify the voluntary infliction
of evil upon a vicious being, not merely because the
public good demands it, but because there is appre-
hended to be a certain fitness and propriety in the
nature of things that render suffering abstractly,
from the benefit to result, the suitable concomitant
of vice." l

Accepting this definition which Godwin gives us

1 Op. ciL, p. 280.

PUNITIVE JUSTICE 823

as the true meaning of punishment, it is necessary
to hold that, in so far as a penalty is imposed for any
other than a vindictive object, as, for example, for
the sake of deterrence, prevention, reformation, or
social protection, it ceases to be punishment at all.
For all of these other objects have a reference to
some good that is to be secured in the future;
whereas the retributive theory, by its very nature,
looks wholly to the past. According to it, pain is
inflicted, not in order that some advantage may
accrue in the future, but because some wrong has
been done in the past.

We have, then, to ascertain the circumstances, if
any there be, under which it is ethically allowable
for one not only to determine for another the pro-
priety of his acts, but to visit upon such a one pun-
ishment in case he commits acts that have been
declared mala prohibila.

The idea of retribution or expiation can apply only
as between rational beings. It is true that Great
Nature (Natura Natwrans) is often spoken of as
inflicting punishment and even as destroying those
who violate her laws. But such language cannot
be considered strictly correct. Indeed, the very idea
of violating a law of nature is an improper one. The
so-called laws of nature are but statements of uni-
formities of experience in the phenomenal world. As
such they are not in any true sense commands, and
are not possible of violation by men. Certain results,
so far as our experience goes, are known to follow
from certain causes. That is all. There is no law-

824 80CIAL JUSTICE

giver to be offended. There is not necessarily pres-
ent any idea of wickedness, nor do the elements of
intention and moral responsibility necessarily play a
part when, as a consequence of a certain state of
facts, certain results, disagreeable or otherwise, are
experienced by particular individuals or communities.
But in order that the retributive theory may have
standing at all, these elements must appear. Accord-
ing to the theory, one is punished because he is sup-
posed to have done a moral wrong, that is, to have
committed not simply a formal or legal wrong, but
to have sinned in the sight of the power that pun-
ishes him. But only that one can be said to have
sinned who has freely committed the reprobated act,
and who, furthermore, at the time of its commission
has been mentally qualified to judge regarding the
character of the act committed and, being so quali-
fied, actually intended to commit it.

Having defined now what is meant by punishment
in its proper retributive or expiative sense, we come
to the vital question whether a true system of ethics
requires, or even permits, the existence of a right to
inflict pain for this purpose. In short, can there be
stated any rational ground for declaring that justice
demands, under any conceivable conditions, that pain
should be inflicted when no possible future good can
result ? If we answer " No," we of course deny that
the idea of punishment, in its proper sense, should
play any part whatsoever in our systems of ethics.

Among English writers Godwin has perhaps most
strongly asserted the invalidity, and in fact the

pirannvE justice 825

absolute cruelty, of the retributive view of punish-
ment. After calling attention to the idea sometimes
held that Nature herself teaches us that suffering
should be annexed to vice, he continues: "Argu-
ments of this sort must be listened to with great
caution. It was by reasonings of a similar nature
that our ancestors justified the practice of religious
persecution. € Heretics and unbelievers are the ob-
jects of God's indignation ; it must therefore be mer-
itorious in us to maltreat those whom God has
cursed.' We know too little of the universe, are
too liable to error respecting it, and see too small a
portion of the whole, to entitle us to form our moral
principles upon an imitation of what we conceive to
be the course of nature." In truth, as Godwin says,
the fact is that in general we call that vicious to
which the laws of nature annex suffering, and thus
the viciousness attaches because of the consequential
pain, rather than vice versa. "Thus it appears,
whether we enter philosophically into the principles
of human actions, or merely analyze the ideas of
rectitude and justice which have the universal con-
sent of mankind, that, accurately speaking, there is
no such thing as desert. It cannot be just that we
should inflict suffering on any man, except so far as
it tends to good. Hence it follows that the strict
acceptation of the word i punishment' by no means
accords with any sound principles of reasoning. It
is right that I should inflict suffering in any case
where it can be clearly shown that such infliction will
produce an overbalance of good. But this infliction

826 80CIAL JU8TCC1B

bears no reference to the mere innocence or guilt of
the person upon whom it is made. An innocent man
is the proper subject of it, if it tend to good. A
guilty man is the proper subject of it under no other
point of view. To punish him upon any other hy-
pothesis for what is past and irrecoverable and for
the consideration of that only, must be ranked among
the wildest conceptions of untutored barbarism/ 9 l

The remarkable declaration which Godwin makes,
that, " accurately speaking, there is no such thing as
desert," requires some explanation. This assertion
is based upon Godwin's deterministic ethics, accord-
ing to which freedom of the will and moral responsi-
bility in the agent are flatly denied. On the page
preceding that from which our quotation is taken
he says, " The assassin cannot help the murder any
more than the dagger [with which the deed is com-
mitted]."

If this be so, if the individual be the helpless prey
of circumstances, then of course no such thing as
ethical desert is possible. And if, as Godwin be-
lieves, the greatest happiness is the greatest good,
no distribution either of rewards or penalties is
justified except as it tends to advance the realization
of that good.

That philosopher who, among modern writers, has
defended most absolutely the retributive theory of
punishment, is Kant. His views upon this point
are to be found in his Rechtslehre?

1 Political Justice, Book VTI, Chapter I.

1 Translated by Hastie under the title Philosophy of Lam.

PUNITIVE JUSTICE 827

" Judicial punishment," says Kant, " can never be
administered merely as a means for promoting another
good, either with regard to the criminal himself or to
civil society, but must in all cases be imposed only
because the individual on whom it is inflicted has
committed some crime. For one man ought never
to be dealt with merely as a means subservient to
the purpose of another, nor be mixed up with the
subjects of real right. Against such treatment his
inborn personality has a right to protect him, even
although he may be condemned to lose his civil
personality. He must first be found guilty and
punishable, before there can be any thought of
drawing from his personality any benefit for him-
self or his fellow-citizens. The penal law is a
categorical imperative ; and woe to him who creeps
through the serpent-windings of utilitarians to dis-
cover some advantage that may discharge him from
the justice of punishment or even from the due
measure of it according to the Pharisaic maxim:
'It is better that one man should die than that
the whole people should perish.' For if Justice
and Righteousness perish, human life would no
longer have any value in the world. What, then,
is to be said of such a proposal as to keep a crimi-
nal alive who has been condemned to death, on his
being given to understand that if he agreed to cer-
tain dangerous experiments being performed upon
him, he would be allowed to survive — if he come
happily through them ? It is argued that physicians
might thus obtain new information that would be of

828 SOCIAL JT78TICE

value to the commonweal. Bat a court of justice
would repudiate with scorn any proposal of this
kind if made to it by the medical faculty; for
justice would cease to be justice, if it were bar-
tered away for any consideration whatever." 1

Kant makes this repudiation of the utilitarian
element still more emphatic, when he declares:
"Even if a civil society resolved to dissolve itself
with the consent of all its members, — as might
be supposed in the case of a people inhabiting an
island resolving to separate and scatter themselves
throughout the whole world, — the last murderer
living in prison ought to be executed before the
resolution was carried out. This ought to be done
in order that every one may realize the desert of
his deeds, and that blood-guiltiness may not remain
upon the people; for otherwise they might all be
regarded as participators in the murder as a public
violation of Justice/' *

The vindictive theory is accepted by Kant not only
as furnishing the motive for punishment, but as dic-
tating the character of the penalty to be imposed
in each case. The doctrine of lex talionis is to
be applied without reservation. "This right," he
says, "is the only principle which in regulating a
public court, as distinguished from mere private
judgment, can definitely assign both the quality and
the quantity of a first penalty. All other standards
are wavering and uncertain; and on account of
other considerations involved in them, they contain

1 Op. ciL, p. 195. * Idem, p. 198.

PUNITIVE JUSTICE 829

no principle conformable to the sentence of pure and
strict justice." *

Let us see now what theoretical justification Kant
offers for his theory. It is, in short, that the
criminal by the deliberate commission of his deed
has, in effect, accepted as valid the principle involved
in the deed. Therefore, says Kant, if that same
principle be applied by society to him, he is in
reality but subjected to a rule of conduct which, by
his own conduct, he has declared to be a valid one.
Thus, in answer to the argument made by Beccaria
against the rightfulness of capital punishment, that
it cannot be conceived that in the original civil
compact the individual could or would have con-
sented thus to dispose of his own life, Kant replies :
"No one undergoes punishment because he has
willed to be punished, but because he has willed a
punishable action ; for it is, in fact, no punishment
when one experiences what he wills ; and it is im-
possible for any one to will to be punished. To say,
* I will to be punished, if I murder any one/ can
mean nothing more than, 'I submit myself along
with all the other citizens to the laws ' : and if there
are any criminals among the people, these laws will
include criminal laws. The individual who, as a
co-legislator, enacts penal law, cannot possibly be
the same person who, as a subject, is punished accord-
ing to the law ; for, quel criminal, he cannot possi-
bly be regarded as having a voice in the legislation,
the legislator being rationally viewed as just and

1 Op. cit. t p. 196.

830 SOCIAL JUSTICE

holy. If any one, then, enact a penal law against
himself as a criminal, it must be the pure juridically
law-giving reason (homo noumenon) which subjects
him as one capable of crime, and consequently as
another person (homo phenomenon), along with all
the others in the civil union, to this penal law. In
other words, it is not the people taken distributively,
but the tribunal of public justice as distinct from the
criminal, that prescribes capital punishment; and
it is not to be viewed as if the social compact con-
tained the promise of all the individuals to allow
themselves to be punished, thus disposing of them-
selves and their lives. For if the right to punish
must be founded upon a promise to the wrong-doer,
whereby he is to be regarded as being willing to be
punished, it ought also to be left to him to find
himself deserving of the punishment ; and the crimi-
nal would thus be his own judge. The chief error
of this sophistry consists in regarding the judgment
of the criminal himself, necessarily determined by
his reason, that he is under obligation to undergo
the loss of his life, as a judgment that must be
founded on a resolution of his will to take it away
himself ; and thus the execution of the right in ques-
tion is represented as united in one and the same
person with the adjudication of the right. 9 ' l

1 Op. cit. f pp. 201-202. Mr. F. N. Bradley, in his Ethical Studies,
published in 1876, assumes very clearly the retributive theory of pun-
ishment. Thus he says (pp. 25-26) : " We pay the penalty because
we owe it, and for no other reason; and if punishment is inflicted
for any other reason whatever than because it is merited by wrong,
it is a gross immorality, a crying injustice, an abominable crime,

PUNITIVE JUSTICE -831

What validity is there in this reasoning of Kant?
Only this much, we think. It furnishes a satisfactory
answer to that school of thinkers who, having not
yet thoroughly rid themselves of the social-compact
and natural-right theories, declare that all social or
political control over the individual, needs, for its

and not what it pretends to be. We may have regard for whatever
considerations we please, — our own convenience, the good of society,
the benefit of the offender, — we are fools and worse, if we fail to do
so. Having once the right to punish, we may modify the punishment
according to the useful and the pleasant, but these are external to
the matter; they can give us no right to punish, and nothing can do
that but criminal desert. — Yes, in spite of sophistry, and in the face
of sentimentalism, with well-nigh the whole body of our self-styled
enlightenment against them, our people believe to this day that
punishment is inflicted for the sake of punishment." Writing nearly
twenty years later, however, Mr. Bradley substantially modifies this
view, though he does not admit it. In an article entitled Some
Remarks on Punishment, contributed to the International Journal of
Ethics (Vol. IV, p. 269), he says, after avowing his continued adhe-
rence to the doctrine, "But then this retributive view pure and
simple will not work — will not work because of the impossibility
of determining the degree of guilt. Therefore, having secured, as we
believe, the right to punish, we give weight also to other considera-
tions. We modify our sentence with an eye to the general good.
We make an example or, on the other hand, we let mercy or policy
more or less abridge strict justice. But with this the retributive
principle has ceased to be absolute. Punishment has ceased to be
an affair of justice, and we have been forced to recognize a superior
duty to be unjust. We have not, indeed, given up the idea of retri-
bution and desert, but we have made it secondary, and subject to
the chief end of the general welfare." Pushing still further this idea,
as he says, of being forced by the general welfare to be unjust, he
shows that " to remove the innocent is unjust, but it is not, perhaps,
therefore in all cases wrong. Their removal, on the contrary, will
be right if the general welfare demands it." It would seem too clear
for argument that Mr. Bradley here definitely abandons the retribu-
tive for the utilitarian theory; yet, in a note added in answer to
a criticism of Mr. Rashdall, he declares that he has "little to
correct in the old statement of my [his] view except a certain num-
ber of one-sided and exaggerated expressions."

882 SOCIAL JUSTICE

justification, the consent of the individual. It is
correct to say that in the commission of any given
deed, the criminal logically accepts as a valid rule
of conduct the principle involved in his act, and
therefore that he cannot justly complain if society
see fit to subject him to the operation of the same
rule that he has already applied in his conduct
toward others. But this is all. Kant's reasoning
does not have any bearing upon the arguments of
those who hold the views which we have accepted
in this work. Kant says: "Man ought never to
be dealt with merely as a means subservient to the
purpose of another. . . . Against such treatment
his inborn personality has a right to protect him."
This principle is a very true one, and in fact consti-
tutes, as we know, the fundamental fact of social
justice, but it does not mean that the infliction of
an evil upon a person, in order that some future
social good may be achieved, is necessarily a con-
travention of it.

Kant says that a person should never be treated
merely as a means. But a person is treated merely as
a means only when his right to be considered as an
end is wholly ignored. Now, when it becomes nec-
essary in the interest of society to inflict an evil
upon an individual, that individual is qud, hoc treated
as a means ; but he is also treated as an end, if in
estimating the social good his individual good is
considered, and in the selection of him for punish-
ment the choice has been controlled by empiric
facts which make it productive of more good that

PUNITIVE JUSTICE 833

he, rather than any one or no one else, should be
punished. Thus, just as, according to this interpre-
tation of the sanctity of human personality, guilti-
ness of crime cannot of itself justify the infliction
of pain; so, conversely, when the social good de-
mands, innocence from wrong-doing cannot always
relieve one from the duty of subjecting himself to,
or release society from the obligation of imposing,
an evil which in extreme cases may amount even
to death. As Rashdall has well put it: "When a
man is punished in the interest of society, he is
indeed treated as a means, but his right to be
treated as an end is not thereby violated, if his
good is treated as of equal importance with the end
of other human beings. Social life would not be
possible without the constant subordination of the
claims of individuals to the like claims of a greater
number of individuals ; and there may be occasions
when in punishing a criminal we have to think
more of the good of society generally than of the
individual who is punished. . . . The retributive
view of punishment, however, justifies the infliction
of evil upon a living soul, even though it will do
neither him nor any one else any good whatever.
If it is to do anybody any good, punishment is not
inflicted for the sake of retribution. It is the retrib-
utive theory, to my mind, which shows a disrespect
for human personality by proposing to sacrifice
human life and human well-being to a lifeless fetich
styled the Moral Law, which apparently, though un-
conscious, has a sense of dignity, and demands the

884 8QCIAL JU8TICK

immolation of victims to avenge its injured amour
propre" l

The incorrectness of the retributive theory of
punishment becomes manifest when we consider the
results to which an attempt to apply it in practice
would necessarily lead. In the first place, it would
render impossible any penal law whatever, for it
would never be possible for courts to gain that
knowledge which the theory demands for the just
apportioning of penalties. When reduced to their
proper meaning, the words retribution, expiation, or
vindication, mean the bringing home to the criminal
the legitimate consequences of his conduct, that is,
legitimate from the ethical standpoint. But this,
of course, involves the determination of the degree of
his moral responsibility, a task that is an impossibil-
ity for any legal tribunal. Conditions of knowledge,
of heredity, of training, of opportunities for moral
development, of social environment generally, and
of motive have to be searched out, which are beyond
even the ability of the criminal himself to determine,
— far less of others, — before even an approximate
estimate can be made of the simplest act. But even
could this be done, there would be no possible
standard by which to estimate the amount of
physical pain to be imposed as a punishment for a
given degree of moral guilt. For how measure a
moral wrong by a physical suffering ? Or, granting
what is inconceivable, that such an equivalence could

1 International Journal of Ethics, January, 1900, article, M The
Ethics of Forgiveness."

PUNITIVE JUSTICE 835

be fixed upon, how would it be possible to inflict
upon the culprit just that amount of pain which he
might deserve? Individuals differ physically and
mentally, and these differences are widened by
training and methods of life until it is impossible
to determine the degree of discomfort or pain that
a given penalty will cause a given individual. The
fear of death itself varies widely with different indi-
viduals, and the same is true as to the estimation
in which all other forms of evil are held. So far,
therefore, from there being any certainty that two
individuals will be equally punished who are sub-
jected to the same penitential treatment, there is,
in fact, almost a certainty that they will not be.

This question of the moral responsibility in the
criminal which the retributive theory necessarily
predicates, has been rendered doubly embarrassing
by the results recently obtained by the new school
of criminologists, who term themselves Criminal
Anthropologists. By following entirely new methods
this school has arrived at conclusions as to the
nature and causes of crime differing radically from
those which have been formerly held, and which, if
they be proved true, must result in almost revolu-
tionary changes in our present penal methods.

Reversing former methods, this school has studied
the criminal rather than the crime, and the result of
the investigations carried on along this line has
been to bring into prominence the conception of the
criminal as a being physically and psychically
degenerate. Every crime, no matter by whom com-

836 SOCIAL JUSTICE

mitted, or tinder what circumstances, is to be ex-
plained in but two ways: either as the act of the
individual's free will, or as the natural effect and as
the necessary result of social and physical causes*
Our present methods of punishment are based upon
the idea that a crime is the free act of a person who,
actuated by motives of gain or passion, deliberately
contravenes the law. Now and then is raised in our
courts the plea of insanity or temporary aberration
of mind or kleptomania, but in the vast majority of
cases the criminal is considered as not differing in
body or mentality from honest men. He is con-
sidered as wholly responsible for his own act and is
punished accordingly.

According to the new school of criminal anthro-
pology, this theory of crime and its punishment is
radically wrong. Crime, its members say, is in the
great majority of cases due to disease, to a mental
state of the criminal which predisposes him to the
commission of illegal acts. The study that has been
made of the brain and mental peculiarities of those
convicted of criminal offences clearly proves this,
they say, to be so. This being so, our penal
methods should look primarily to the cure of the
criminal and not to his punishment. No man, what-
ever his offence, should be discharged from restraint
except upon reasonable evidence that he is morally,
intellectually, and physically capable of leading an
honest life. It may sound strange, but it is alleged
that it is correct to say that it is as natural for some
people to commit crime when under provocation or

PUNITIVE JUSTICE 887

temptation as it is for a dyspeptic to have indiges-
tion after overeating, or a rheumatic to suffer from
the result of exposure. Crime, in short, is due to
some fault in his organization which renders the
individual less able to withstand temptation or to
control improper desires. Whenever in any one's
mental outfit there is any maladjustment (and the
doctors tell us that none of us are sound in every
particular), there is present a tendency to peculiari-
ties that affect our motives and actions. The
criminal is, therefore, to be judged as one whose
mental peculiarities are such as to make the com-
mission of crime more easy to him than it is to
others.

Between the violently insane, the idiot, and the
one whose moral faculties are merely blunted, and
the sense of right and wrong indistinct, there are all
grades of criminality. On the border line of lunacy
lie the criminal populations. The criminal has thus
been defined as "an individual whose organization
makes it difficult or impossible for him to live in
accordance with the standard which the civilization
in which he lives sets up and makes it easy for him
to risk the penalties of acting anti-socially. By some
accident of development, by some defect of heredity
or birth or training, he belongs as it were to a lower
and older social state than that in which he is actu-
ally living. It thus happens that our own criminals
frequently resemble, in physical and psychical char-
acteristics, the normal individuals of a lower race"
(Ellis).

SOCIAL JU8TTCK

The conception of crime as due to defective mental
organization of the criminal, explains to us many
of the points that have hitherto perplexed us. In
the first place, it gives us a reason for the repeated
instances in which we find persons committing crimes
where there seems to be no sufficient motive, and
when it must be apparent to the ones committing
them that immediate discovery and severe punish-
ment are to be the sure result. Murders are fre-
quently committed upon the most trivial grounds,
and nothing is more common than to find prisoners
who seem to take a genuine delight in thieving, even
though not in want. Secondly, the definition of the
criminal as one of defective organization, who is on a
lower plane of civilization than that on which he is
actually living, explains the increase of crime in
the face of an advancing civilization and a widening
diffusion of wealth and education.

With the instincts of a savage, the criminal is
forced to live among civilized people. " Criminality,
like insanity, waits upon civilization," says Ellis.
With the growth of society in complexity and deli-
cacy, the demands upon the social nature of the
individual become greatly increased. Organized as
modern society is, the duties of the individual to his
fellow-man and to society at large are immensely
greater than they are in savage countries where
there exist no mutual rights and duties outside of
the family ; where law, if it may be so called, covers
only a few points, and each one lives only for him-
self, and his actions do not conflict with the rights

PUNITIVE JUSTICE 839

of others. So far, then, as society has within its
bounds members who are mentally unfit to meet the
requirements of its civilization, it will have violators
against its laws, and these it will have no matter
what its economic prosperity or the severity of the
punishment meted out to the offender. The increase,
then, in crime which, as we shall presently see, is as-
serted by some, may be said to be due to the fact
that, as the demands of civilization have increased,
the chances of having members of the State who are
not able to meet these standards have increased ; and
this increase our penal methods, aiming at punish-
ment rather than at cure, have not been able to
check. Modern civilization represents the last and
final efforts of the wisest, and with its development
there is an increasing need of proper treatment of,
and assistance to, those who are by organization
unqualified to keep pace with it on its onward
march.

Again, the conception of crime as due to patho-
logical condition explains the difficulty of reforming
criminals. It explains also why our methods of
punishment seem to have so little deterrent effect.
It is because they have no power to reform the dis-
eased condition of the prisoner's mind, and are not
imposed for that purpose. As showing how little
really deterrent effect even the severest punishments
have, Rev. W. Roberts, chaplain of Bristol jail, says
that out of 167 attended by him under sentence of
death, 164 had witnessed hangings. George III
added 156 crimes to the list of 67 which had already

840 SOCIAL JUSTICE

been made capital crimes, with a result that from
1806 to 1819, during which time this code remained
unchanged, the number of indictable offences in-
creased threefold. " If deterrence enters as an ele-
ment into the calculation of habitual criminals/ 9
says Mr. Dugdale, " it acts chiefly as a stimulant for
contriving new methods by which the penalty may
be avoided."

Finally, the hereditary nature of criminality shows
its character as a disease. The investigations of
experts leave no room for doubt upon this point.
Mr. Morrison states that the statistics that he has
collected show that more than one-fourth of crimi-
nals have received a defective organization from
their ancestry ; and further, that between forty and
fifty per cent of convictions for murder are cases
in which the murderer is either insane or mentally
infirm. The most startling and conclusive proofs of
the inheritability of criminal tendencies have been
furnished by the American investigators Mr. Dug-
dale, in his famous study The Jukes, and Mr. McCul-
loch, in his book upon The Tribe of Ishmad.
The results of these two investigators have become
so well known as not to need repetition here.

With what success modern criminal anthropol-
ogists have succeeded in discovering and describing
distinct criminal types, is a matter open to con-
troversy. 1 But one point they do appear to have
established, and this is that physical and mental

1 For a very able criticism of this school, see the work of Proal,
Le Crime et la Peine.

PUNITIVE JUSTICE 841

abnormalities are far more frequently discovered in
the habitual criminal than in the ordinary man.

The point which is of special interest to us in all
this is that, just to the extent to which the thesis is
maintained that crime is due to disease, in corre-
sponding degree should, according to the retributive
theory, the severity of punishment be relaxed ; and
where the will is discovered entirely impotent to
restrain the instincts and desires of a diseased mind
and body, punishment should be wholly remitted.
If, then, to the amount of irresponsibility traceable
to this source, we should join that which is directly
traceable to improper social environment (for which
society is itself largely responsible), we would find,
• according to the retributive theory, that it would be
practically impossible definitely to determine even
the presence, much less the degree, of that moral
responsibility upon which the right to punish is
founded. And thus there would logically arise the
necessity of declaring the non-amenability to punish-
ment (though not to treatment) of that most danger-
ous of all social types, the " instinctive criminal."

Another objection to the retributive theory is the
point which Fichte makes, that in attempting the
punishment of crimes as sins, men are arrogating to
themselves the ability and the right to determine for
others not simply what, as a matter of fact, society
or the State will allow them to do, but what is for
them morally right or wrong. " The question is not
at all whether the murderer suffers unjustly when he
also loses his life in a violent manner," says Fichte,

842 SOCIAL JU8TICB

" but the question is : Whence does any other mortal
derive the right to personify this moral rule of the
world, and to punish the criminal according to bis
deserts ? A system which asserts the supreme ruler
of a State to have this right is undoubtedly com-
pelled to say that the title to it is beyond demonstra-
tion, and hence to call it a right given by God.
Such a system is, therefore, bound to consider the
monarch as the visible representative of God in this
world, and to consider all government as a theocracy.
In the Jewish theocracy the doctrine was, therefore,
eye for eye, tooth for tooth, and very properly." *

1 Science of Rights (translation of Kroeger), p. 371. Fichte in this
takes a ground radically different from that assumed by Kant, and in
fact, except where he is influenced by his conception of a social com-
pact, approaches very nearly our own views. " Punishment," he says,
" is not an absolute end. In fact, the proposition that punishment is
an end for itself, as is, for instance, involved in the expression ' He
who has killed must die,' is positively meaningless. Punishment is
merely a means for the end of the State 'to maintain public security ,'
and the only intention in providing punishment is to prevent by threats
transgressions of the law. The end of all penal laws is that they may
not be applied/'

Fichte, to be sure, goes on to hold that the punishment should, as
far as possible, be made equal to the crime, — poena talionis, — but he
does so not upon vindictive grounds, but upon the simple utilitarian
theory that thus the penal law exercises its greatest deterrent effect.
In fact, as he admits, the principle cannot be applied at all in cases
where, as he expresses it, the will of the transgressor is formaliter evil;
that is, where the violation of the law is done not for the sake of get-
ting possession of another person's goods, but merely for the sake of
injuring the other. Here, then, is a case where the sentiments and
intentions of the crime must be taken notice of. "Nevertheless/*
Fichte hastens to add, "it should not be held that this is a case
wherein the morality of the act is to be considered. No man can and
no man should be the judge of another's morality. The only object
of civil punishment, and the only measure of its degree, is the possi-
bility of public security. Violations of the law prompted by mali-
cious intentions are to be punished more severely than violations

PUNITIVE JUSTICE 848

That, as Fichte says, there is hidden in the retrib-
utive theory the premise that those in authority are
endowed with the right not only to pass moral judg-
ment upon the conduct of those subject to its author-
ity, but to act as the instruments for visiting upon
sinners that evil which by divine order should be
attached to moral wrong, becomes very evident in
the doctrine as declared by the Rt. Hon. Sir E. Frey, 1
and as repeated by Mr. Justice Kennedy of the
Queen's Bench, England. 2

inspired by selfish motives; not because they are more immoral, —
morality, indeed, has no degrees, and there is only one morality, — but
because fear of a milder punishment, a punishment simply of equal
loss, would not afford adequate security."

For a further discussion of the retributive theory, see Vidal, Prin-
cipes fondamentaux de la Penalitd dans les systhnes les plus modernes,
pp. 264-293; Franck, Philosophie du droit penal, Part I, Chapters VI
and VII; and Fouillee, Science iociale contemporaine, Book IV, Chap-
ter III. Fouillee is especially emphatic in his repudiation of the
theory. He denies, and with justness we think, that rationally there
can be predicated of a God himself, considered as a just and loving
Father, the right, or much less the disposition, to inflict a punish-
ment for its own sake; that is, without reference to any possible
future good to the one punished. The good should be happy, Fouillee
says, for all human beings should, if possible, be happy; but the bad
should not necessarily be unhappy, for no one should be unhappy
without sufficient reason. What suffering there should be as a result
of sin, says Fouillee, should be mental ; that is, in the conscience, and
this should be voluntary regret, not one based on resulting evil that
the law has inflicted. " S*il y aun Dieu, ripitonsAe, ce Dieu lui-memc
n 9 a pat le droit de punir. En effet, de deux chose* Vune : on le mat
moral est un tnal par lui-meme, et alors il est inutile d'y a j outer une peine
exterieure non motivde par une legitime defense ; ou le mal moral n'est pas
un mal par lui-meme, mais seulement par la pure volonte'de Dieu, sit pro
ratione voluntas et alors la peine exterieure ne serait qu'un nouvel acte de
despotisme ajouti a une loi deja despotique." (3d edition, p. 296.)

1 « Inequality in Punishment," Nineteenth Century, 1883, p. 517.

i Addres8 before the American Bar Association, August, 1899.
Reprinted in American Law Review, Vol. XXXIH, p. 731.

844 80CIAL JU8TICE

" Punishment," says Frey, " is an effort of man to
find a more exact relation between sin and suffering
than the world affords us. . . . It seems to me that
men have a sense of the fitness of suffering to sin, . . .
that so far as the world is arranged to realize in fact
this fitness in thought, it is right ; and that so far as it
fails of such arrangement it is wrong, except so far as
it is a place of trial or probation ; and consequently
that a duty is laid upon us to make this relationship
of sin to suffering as real and as actual and as exact
in proportion as it is possible to be made. This is
the moral root of the whole doctrine of punishment."

One final proof of the invalidity of the retribu-
tive theory may be mentioned, and that is that,
when accepted as an absolute principle, no possible
room is left for the idea of forgiveness. If it be
right that a sin should be punished simply and
solely because it is a sin, then forgiveness or
remission of punishment can never be other than
a violation of that moral law. Where the duty
of punishment is absolute, a duty of forgiveness
cannot exist. Here, then, unless we would take
the extreme position of saying that the idea of
forgiveness should play no part in our ethical
system, are two inconsistent principles. But, ac-
cording to all reason and philosophy, no principle
can be considered as true in itself which necessarily
leads to internal contradiction. 1

1 This point has been well made by Mr. Rashdall in his article,
" The Ethics of Forgiveness," in the International Journal of Etkic$*
January, 1900.

PUNITIVE JUSTICE 845

This difficulty vanishes, however, when we frankly
accept the principle that pain, when bestowed, should
ever be for the purpose of obtaining some future
good. For then we can recognize that when a
greater good will be secured by forgiveness than
by punishment, it is right that the forgiveness
should be extended. "Upon this view of the re-
lation of punishment to forgiveness, there is no
absolute antagonism between that sense of forgive-
ness in which it is opposed to punishment and that
sense in which it is compatible with punishment.
Just the same considerations which impose the duty
of punishment will limit the means of it ; just those
same considerations which allow the total remission
of penalty in some cases will allow of some mitiga-
tion of it in other cases, and will impose in all cases
the duty of showing whatever benevolence and good-
will toward the offender is compatible with that
measure of punishment which social duty demands.
Punishment and forgiveness, when they are what
they ought to be, being alike the expression of
love, the mode and degree of their combination will
likewise be only the application of the general pre-
cept of love to the circumstances of the particular
case." *

Before leaving the criticism of the retributive
theory, one other point is to be noticed. This is,
that the acceptance of the retributive idea has
undoubtedly been influential in dictating to legis-
lators and courts those extraordinary severities of

1 Mr. Rashdall, in the article quoted.

846 SOCIAL JUSTICE

punishments which have unfortunately so character-
ized the administration of criminal justice in the
past. Where it is looked upon as the law's province
to mete out punishments equivalent to the moral
offence committed, almost no physical suffering can
in theory be deemed excessive. For how meas-
ure in temporal terms the quantity of a violation,
however slight, of the Almighty's will ? It was, in
fact, by expressly calling back the criminal law to
simple utilitarian ends that such writers as Beccaria,
Montesquieu, and Bentham were able, by their influ-
ence, to put a stop to that vast amount of needless
suffering which was the result from the administra-
tion of the criminal laws of a hundred years ago.

Revenge. — It will undoubtedly be asked as an
objection to repudiating absolutely the retributive
idea of punishment, " Is not indignation at a wrong
done a righteous feeling; and is it not right to
embody this indignation in concrete, effective form
in our criminal laws ? Is it not right that we should
feel a certain satisfaction, and recognize a certain
fitness in the suffering of one who has done an inten-
tional wrong? Shall the murderer go unscathed,
and the adulterer be freed from the penalty for his
crime ? "

To these questions we answer that it is right,
indeed that it is morally obligatory upon us to feel
indignant at a wrong done. But it is not right that
we should wish evil to the offender save as possible
good can come from that evil. The two feelings are
wholly distinct. The one is a feeling of moral revul-

PUNITIVE JUSTICE 847

sion and is directed at the crime. The other is a
desire for vengeance, and is directed at the criminal.

Now it is true that in the lower stages of cul-
ture vengeance has played a socially necessary part-
When men generally recognized no rights in others
which they were morally bound to respect, and no
controlling political power existed to compel them
to do so, the fear of provoking retaliation on the part
of the injured party and his family and friends,
necessarily furnished the sole restraining power.
" Gratitude," says Lecky, " has no doubt done much
to soften and sweeten the intercourse of life, but the
corresponding feeling of revenge was for centuries
the one bulwark against social anarchy, and is even
now one of the chief restraints to crime." l

The correctness of this last assertion as applied to
any particular people, evidently depends upon the
character and efficiency of its criminal law. In so
far as crime is not adequately controlled by the State,
or the pursuit of private vengeance permitted, this
latter element does of course exercise a deterrent
effect upon those who are restrained from acts of vio-
lence only by the fear of the punishment that follows.

Furthermore, in an historical sense, our present
criminal law is founded upon the idea of vengeance.
The steps by which the transition was made have been
recently described by Jenks in a most luminous
manner. 2 " The earliest notion of justice, as distinct
from mere indiscriminate revenge, that we find

1 History of European Morals, Vol. I, Chapter I.
*Law and Politics in the Middle Ages, Chapter IV.

848 80CIAL JUSTICE

among the Teutonic peoples/' says Jenks, "is un-
doubtedly the blood feud. Barbarous as such an
institution appears to us, we have but to think for a
moment, to realize its immense importance as a step
in human progress. A man receives a wound from
another; is perhaps killed. Instantly the passion
for slaughter awakes. All who are in any way
interested in the dead man — those who worshipped
his gods or fought by his side — are eager to avenge
his death on any person who may be supposed to be
connected with his murder. General carnage is the
result ; no man's life is safe. But if it can once be
established that the right of vengeance belongs only
to a limited circle of the dead man's relatives, and
may be exercised only against the immediate relatives
of the offender, the area is substantially narrowed, the
evil of the deed proportionally decreased. This is
the work of the blood feud. ... To the blood feud,
. . . succeeds the wer or money payment as com-
pensation for the injury inflicted." Two points need
to be noticed regarding this system. First that,
originally, it was a purely voluntary system; and,
secondly, it was always admitted that there were
some offences for which the money payment could
not atone. " These are our two starting points for
the history of state justice. The King comes to the
help of the clan by compelling the avenger to accept
the wer and by compelling the offender to pay it.
He likewise takes upon himself the punishment of
bootless crimes."

The punitive power of the State once asserted and

PUNITIVE JUSTICE 849

recognized, its growth in influence and authority is
constant, until the old idea of a crime being but a
matter involving the private interests of two or more
individuals, if not absolutely destroyed, is at least
nearly lost sight of in the doctrine that a violation
of an established right is primarily an offence against
the State, and to be punished as such.

The point which we wish to make, however, is
that this change of view, when properly interpreted,
represents not simply the idea that the State takes
the place of the individual for the purpose of aveng-
ing the original wrong, but that the very idea as to
nature of, and the very purpose for which, the penal-
ties of the criminal law are imposed, is changed.
Punishment is inflicted no longer because of the
simple desire that the offender shall suffer pain, but
in order that either he or society may derive some
benefit therefrom. Thus that personal spirit of
malevolence, which is of the essence of revenge, is
entirely absent, and in its place is the impartial,
unimpassioned voice of the law. Or, to use the
more metaphysical expression, the universal will is
substituted for the particular will. The subjective
element is destroyed.

To revenge oneself is, in truth, but to add another
evil to that which has already been done ; and the
admission of it as a right is, in effect, a negation of
all civil and social order, for thereby are justified
acts of violence not regulated by, nor exercised with
reference to, the social good. The idea that in the
criminal law the State " avenges" the wrong done

850 SOCIAL JUSTICE

to itself and to individuals is, in fact, but a rem-
nant of the old "natural rights" and "social com-
pact" theories, according to which individuals
originally had a "right" of self-protection and of
vengeance which, when the body politic was formed,
was handed over to it for exercise, and that thus
the State obtained a just authority to exercise force
and punitive power.

There are few who in modern times assert the
abstract rightfulness of a desire for vengeance, but
among these few is to be found the eminent writer
upon criminal law, the late Justice Fitzjames Ste-
phen. 1 The statement of his position upon this point
is in the following emphatic terms: "The inflic-
tion of punishment by law gives definite expression
and a solemn ratification to the hatred which is
excited by the commission of the offence, and which
constitutes the moral or popular as distinguished
from the conscientious sanction of that part of mor-
ality which is also sanctioned by the criminal law.
The criminal law thus proceeds upon the principle
that it is morally right to hate criminals, and it
confirms and justifies that sentiment by inflicting
upon criminals punishments which express it." " I
am of opinion," he continues, " that this close alli-
ance between criminal law and moral sentiment is
in all ways healthy and advantageous to the com-
munity. I think it highly desirable that criminals
should be hated, that the punishments inflicted upon
them should be so contrived as to give expression to

1 See his History of the Criminal Law of England, Chapter XVH

PUNITIVE JUSTICE 351

that hatred, and to justify it so far as the public
provision of means for expressing and gratifying a
Ileal thy natural sentiment can justify and encourage
it."

To the declaration that it is natural and right
that we should hate the criminal, if by that is meant
that we detest his crime and are indignant at him
for committing it, no objection can be made. Nor
can any be made to the assertion that it is well that
this hatred should find expression in the law, if
by this is meant that a moral influence is exerted
by the fact that thus there is stamped in plain
.and unmistakable terms the disapproval of the sov-
ereign power of the reprobated acts. This we may
term the educative service of penal law. It is a
truth, unfortunate though it may be, that in every
community a very considerable number of the peo-
ple derive in large measure their conceptions of
right and wrong from the commands and prohibi-
tions of the law. Upon all such, the fact that the
sovereign authority of the State has declared a
given act to merit a more or less severe punish-
ment, is not without its influence. It is desirable,
therefore, aside from any other services that the
criminal law may perform, that, as Stephen says,
the criminal law should be so drawn as to express
the true detestation in which immoral acts should
be held. But Stephen, in the sentences which fol-
low those already quoted, seems to go much further,
and to defend revenge pure and simple.

" These views " (which we have just quoted), he

352 SOCIAL JUSTICE

says, " are regarded by many persons as being wicked,
because it is supposed that we ought never to hate, or
wish to be revenged upon any one. The doctrine that
hatred and vengeance are wicked in themselves appears
to me to contradict plain facts, and to be unsupported
by any argument deserving of attention. Love and
hatred, gratitude for benefits, and the desire for ven-
geance for injuries, imply each other as much as con-
vex and concave. Butler vindicated resentment,
which cannot be distinguished from revenge and
hatred except by name, and Bentham included the
pleasures of malevolence amongst the fifteen which,
as he said, constitute all our motives of action. The
unqualified manner in which they have been denounced
is in itself a proof that they are deeply rooted in
human nature. No doubt they are peculiarly liable
to abuse, and in some states of society are commonly
in excess of what is desirable, and so require restraint
rather than excitement ; but unqualified denunciations
of them are as ill judged as unqualified denunciations
of sexual passion. The forms in which deliberate
anger and righteous disapprobation are expressed,
and the execution of criminal justice as the most
emphatic of such forms, stand to the one set of pas-
sions in the same relation in which marriage stands
to the other."

Here it is quite plain that, if we accept the literal
meaning of the words used, Justice Stephen defends
as ethically proper, under certain circumstances, the
desire for vengeance. If, however, we examine care-
fully the thought, we think that it will be found that

PUNITIVE JUSTICE 358

that which Stephen really has in mind is, after all,
that feeling of indignation which we may properly
feel at the commission of a wrong, rather than the
idea of revenge pure and simple. Thus he begins
the second quotation which we have made by saying
that "these views" — namely, those expressed in the
first quotation regarding the propriety of an indigna-
tion against wrong-doing — "are often regarded as
wicked because it is supposed that we ought never
to wish to be revenged upon any one." Again, a
little later on, he speaks of the criminal law as being
one of the most emphatic forms in which " deliberate
anger and righteous disapprobation" are expressed.
Stephen no doubt felt most strongly the educative
value of the criminal law in bringing home not only
to the criminal himself but to all others the evil con-
sequences of immoral acts, but he errs when he con-
fuses this with the idea of revenge. The desire for
revenge means nothing more than the wish that the
object of one's hatred shall be visited by an evil sim-
ply and solely because of the suffering it will cause
him. We think that if Stephen had eliminated from
his thought the belief in the possible educative value
of the punishment, he would have seen that what
would be left would not be a sentiment ethically
defensible. Thus, to reduce the matter to concrete
statement, we do not believe that Stephen, or any
one else who accepts his views, would be ready to say
that he would wish that, as a penalty for his crime,
a criminal should be visited by an evil, say for in-
stance a grievous sickness, which neither he nor

2a

854 SOCIAL JU8TICE

others would or could recognize as being a return
upon him of the consequence of his own evil act.
Hegel has often but incorrectly been interpreted
as advocating the retributive theory of punishment.
The true ground upon which he justifies the deliber-
ate infliction of suffering upon a wrong-doer is that
this suffering at least tends to have upon the crimi-
nal himself the educative effect of which we have
been speaking. 1 Hegel uses the word retribution,
but, as the context shows, it is as having this educa-
tive sense, and not that of revenge. " In the sphere
of direct right," says Hegel, "the suppression of
crime takes in the first instance the form of revenge.
This in its content is just, so far as it is retribution ;
but in its form it is the act of a subjective will, which
may put into an injury an infinite or unpardonable
wrong. Hence its justice is a matter of accident,
and for others means only private satisfaction. As
revenge is only the positive act of a particular will,
it is a new injury. Through this contradiction it
becomes an infinite process, the insult being inherited
without end from generation to generation. Wher-
ever crime is punished not as crimina publica 9 but as
privata, it still has attached to it a remnant of
revenge." * " The injury which the criminal experi-
ences is inherently just because it expresses his own
inherent will ; it is a visible proof of his freedom and
is his right. But more than that, the injury is a

1 Cf. an article by McTaggert entitled, " Hegel's Theory of Punish-
ment," in the International Journal of Ethics, Vol. VI, p. 479.
9 The Philosophy of Right, translated by Dyde, § 102.

PUNITIVE JUSTICE 855

right of the criminal himself, and is implied in his
realized will or act. In his act, the act of a rational
being, is involved a universal element which by the
act is set up as the law. This law he has recognized
in his act, and has consented to be placed under it as
under his right." l The matter is, however, put in a
nutshell when Hegel says that in his idea of retribu-
tion there is implied no pleasure for the objective
will, such as is involved in the idea of revenge, but
simply the " turning back of crime against itself.
The Eumenides sleep, but crime wakes them. So it
is the criminal's own deed which judges itself." *

Hegel does not deny that the criminal law may be
made to serve other purposes than that of awakening
the criminal to a true comprehension of the nature of
his deed, but this last should ever, he thinks, furnish
the fundamental motive. "The treatment of punish-
ment in its character as a phenomenon," he says, " of
its relation to the particular consciousness, of the
effect of threats upon the imagination, and of the
possibility of reform is of great importance in its
proper place, when the method of punishment is to
be decided on. But such treatment must assume
that punishment is absolutely just. Hence every-
thing turns on the point that in crime it is not the
production of evil but the injury of right, which
must be set aside as overcome. We must ask what
that is in crime, whose existence has to be removed.
That is the only evil to be set aside, and the essen-
tial thing to determine is wherein that evil lies. So

l J«fcro,§100. * Idem, §101.

856 SOCIAL JUSTICE

long as conceptions are not clear on this point, con-
fusion must reign in the theory of punishment/' 1

It is scarcely necessary to point out that in aban-
doning the theory of revenge, Hegel definitely places
himself upon the ground that the purpose of punish-
ment should be utilitarian ; that is, that its imposition
should be for the attainment of some present or
future good. His theory, in fact, very much resem-
bles what is generally known as the Reformatory
Theory. It differs from that theory, however, in one
important respect. While those who accept the reform-
atory theory desire that one of the aims of our peni-
tential systems should be to awaken the conscience and
change the disposition of the criminal, the aim which
Hegel has in mind is rather to arouse the comprehen-
sion of the wrong-doer to the true nature of his act.
The object is thus to stimulate his cognitive faculties,
rather than to increase his sense of moral obligation ;
to show what is right and what is wrong, rather than
to teach him that he should do what is right and
avoid doing what is wrong. For this reason we
have preferred to call Hegel's theory Educative
rather than Reformatory.

Hegel has in mind solely the possible educative
value of punishment upon the criminal himself.
Logically, however, the theory includes the educa-
tive influence that it may have upon the community
at large. In actual effect, indeed, this may easily be
much the more important part of the educational
influence exercised by it.

1 Idem, f 99.

PUNITIVE JUSTICE 857

How far it is possible either to educate or reform
the criminal by punishment, is a matter upon which
persons will naturally differ. Personally we are
inclined to believe that it can reform him only as it
educates him. With the true nature of his act clearly
brought home to him, the conscience of the criminal,
so far as it is not already blunted, will then exercise
its controlling power to prevent a repetition of the
same or similar conduct. But directly to awaken
the conscience by a series of pains, if not impossible,
is certainly difficult. As Hudibras has said, "No
thief e'er felt the halter draw with just opinion of
the law"; and as George Eliot in her Felix Holt
declares, " Men do not become penitent and learn to
abhor themselves by having their backs cut open
with the lash ; rather they learn to abhor the lash.' 9

Perhaps, however, it will be said this does injus-
tice to the reformatory theory. It may be said that
those who emphasize the reformatory element in the
administration of penal justice maintain, not that
the punishment which is inflicted has, or can be
made to have, a reforming influence, but that the
State should seek to reform the criminals while pun-
ishing them. 1 But if this be so, then the theory is
not one of punishment at all. For the reformation,

1 See on this point the excellent paper of Mr. McTaggert, in the
International Journal of Ethics, already quoted, and that of Mr. Rash-
dall in the same Journal (II, 20) entitled " The Theory of Punishment."
" When a man is induced to abstain from crime," says Rashdall, " by
the possibility of a better life being brought home to him through the
ministrations of a prison chaplain, through education, through a book
from the prison library, or the efforts of a Discharged Prisoners' Aid
Society, he is not reformed by punishment at all."

868 SOCIAL JUSTICE

if it comes at all, is then the result from the disci-
pline that the prisoner receives, not from the incarcera-
tion which is imposed as punishment. Furthermore,
the deterrent element in punishment is not to be con-
fused with the idea of reformation. An experience
of the painful consequences of crime may deter a
criminal from again violating the law, not because it
shows him the immorality of his conduct, but because
it demonstrates its inexpediency.

Utilitarian Theories of Punishment. — To a very con-
siderable extent we have already presented the grounds
upon which the other than retributive theories of
punishment are based. The retributive theory stands
sui generis in that it alone looks wholly to the past
and rejects as unessential to, if not inconsistent with,
itself all utilitarian considerations. In rejecting the
retributive theory, therefore, we necessarily accept
the utilitarian theory that punishment, to be justly
imposed, must have for its aim the realization of
some future good. These utilitarian theories differ
from each other according to the nature of the good
sought. Thus we have : (1) The Deterrent Theory,
according to which punishments are inflicted in order
that other would-be law-breakers may be dissuaded
from crime ; (2) The Preventive Theory, the aim of
which, as its name implies, is to prevent the repeti-
tion of the offence by the surveillance, imprisonment,
or execution of the criminal; (3) The Reformatory
Theory, the object of which is the moral reformation
of the delinquent; and (4) The Educative Theory,
of which we have already spoken.

PUNITIVE JUSTICE 859

A point to be noticed about these theories is that
they are not mutually exclusive. There is no reason
why, the utilitarian idea being once accepted, we
should not strive to reach in our penitential systems
beneficial results in all four of the directions men-
tioned. It is therefore possible to speak of a given
law being founded on one or the other of these
ideas only in so far as deterrence, prevention, edu-
cation, or reformation, as the case may be, is placed
in the foreground as the chief end to be realized.

But we may go further than simply to declare
that these theories are not mutually exclusive. We
may assert that it is rationally impossible to select
any one aim and to declare that in any system of
penal justice that one should furnish the sole motive
for its enactment and enforcement. It may be
possible to pass particular laws the aim of which
is solely in one or the other of these directions;
but to attempt the establishment of an entire crimi-
nal code with but a single aim would inevitably lead
to absurdities and injustices. If absolute prevention
were the sole aim, capital punishment or lifelong
imprisonment would be the normal punishment
called for ; for in no other way could there be fur-
nished a guarantee against a repetition of the offence
by the convicted one. If reformation were the sole
aim sought, then, not to mention other absurdities,
it would be necessary for a court to release from all
punishment those hardened and habitual criminals
regarding whom experience had demonstrated penal
law to be without a reformatory influence. If

860 SOCIAL JUSTICE

deterrence were accepted as the absolute canon, we
would be obliged to abandon all attempts at refor-
mation, and by the strictness and severity of our
punishments give ourselves up to an appeal simply
to the fears of mankind. Finally, if the educative
theory were to be solely relied upon, we would not
be able to modify the character and severity of our
punishments so as best to meet threatened invasions
of social or political order. This would mean that
in times of greatest need the State would find itself
powerless. Thus, for example, should a grievous
pestilence be threatened, necessity would demand
that violations of quarantine and other health ordi-
nances should be prevented at all hazards, and hence
that extraordinarily severe penalties should be at-
tached to their violation. Or, again, in a time of
great political unrest and disorder, when the very
life of the State is threatened, martial law would
be demanded. But if we accept any but the deter-
rent theory as absolutely sufficient in itself, such
measures would be unjustifiable.

As we have seen, the retributive theory rests
under the embarrassment of predicating as a ground
for the right to punish a motive which logically
necessitates that the character and degree of the
punishments which are inflicted should correspond
with the degree of moral guilt of the offenders,
whereas the determination of this degree of guilt
is inherently beyond the power of any criminal court.
From this difficulty the utilitarian theory is free.
We have spoken of the ideas of deterrence, reforma-

PUNITIVE JUSTICE 861

tion, education, and prevention as distinct from one
another, and so they are. Yet when viewed in their
proper light, they are all but different phases of one
supreme idea, the social welfare. The aim of the
criminal law, like that of the civil law, and indeed
of all laws and principles of conduct, is the general
weal. Therefore, in passing upon the propriety of
emphasizing in a given piece of legislation any one
of these ideas, whether of reformation, education,
prevention, or deterrence, it is ever necessary to con-
sider the matter in its social and not in its individual
light. There may thus be cases in which, as to the
particular criminal or criminals concerned, a remis-
sion of punishment would exercise a more beneficial
influence than its imposition, but in which social
considerations demand a satisfaction of the law's full
severity.

The bearing of this upon the question of justly
apportioning penalties is that it makes it no longer
necessary to attempt the impossible task of making
the punishment correspond to the degree of the crimi-
nal's guilt, but leaves it open to the laws and to the
courts to arrange their judgments according to the
practical exigencies of each case as determined by
the social need.

Vidal, in his Principes fondamentaux de la penalite,
denies the validity of the social-defence theory, on
the ground that it justifies the treatment of the
individual criminal as a mere means to social wel-
fare; that it improperly divorces the ideas of pun-
ishment and desert, and reduces the whole question

862 SOCIAL JUSTICE

to one of simple convenience. As an example of all
that is bad, he quotes the following declaration of Le
Bon : l " The questions of responsibility and free will
plainly have nothing to do with what we have been
sayirig. . . . When a viper or an enraged dog
wounds me, I do not stop to ask whether the ani-
mal be responsible for his act. I seek to protect
myself, and to prevent it from injuring me and
others. Nearly all criminals are irresponsible, in
the sense that by their own nature or by circum-
stances they cannot help being malefactors. But in
what respect do these formidable beings merit a
greater regard than the millions of innocents whom
we see miserably dying upon battle-fields in order to
defend causes, of even the nature of which they are
ignorant ? "

The objections of M. Vidal to the social-defence or
social-welfare theory disappear when we point out
that, as has been before said, a criminal is not treated
merely as a means when his good is given equal con-
sideration with the good of others in determining the
general welfare, and when we call attention to the
fact that the term " social welfare" is not to be
understood as connoting mere material welfare, but
the highest ethical good possibly attainable. One
often sees the social-defence theory justified by com-
paring it with that instinctive right of self-defence
which every living organism exercises. While as
a simple analogy this is not inapt, it is yet mis-

1 From his article, " La Question dee Criminels," in the Revue
Philosophique for 1881.

PUNITIVE JUSTICE 363

leading in that it apparently reduces the right to
one of simple defence against loss or physical injury,
whereas it should be justified upon higher ethical
grounds.

Law and Morality. — To what extent, it may be
asked, does either the theory or practice of our
criminal law conform to the principle which we
have established that the idea of retribution or
expiation should be repudiated ? Very little, one is,
at first thought, inclined to answer. Indeed, if
we were to ask the ordinary individual to define
the relation between law and morality, the answer
we should almost certainly get would be that legal
rights and duties are such moral rights and duties
as are recognized and enforced by the State; that the
law, so far as it extends, occupies the same sphere
as morality, and exists in the main for the same
purpose.

As a matter of fact such a description is not
correct. Legal rights and duties and moral rights
and duties are never distinguishable simply by the
fact that for the one the sanction of the State is
supplied, and for the other not. It is true that very
many legal rights and duties are also moral rights
and duties, but they are recognized by the law not,
primarily, because they are such, but for another
reason, namely, because their enforcement is deemed
advantageous to the State. That is to say, we
maintain that an act is prohibited by the law, not
because it is considered sinful, as tested by some
moral standard, but because the safety or welfare of

864 SOCIAL JUSTICE

society demands it. Thus we find Sir Frederick
Pollock declaring that — "though much ground is
common to both, the subject-matter of Law and of
Ethics is not the same. The field of legal rules of
conduct does not coincide with that of moral rules,
and is not included in it ; and the purposes for which
they exist are distinct. Law does not aim at pro-
tecting the individual character of men, but at regu-
lating the relations of citizens to the commonwealth
and to one another. And, inasmuch as human
beings can communicate with one another only by
words and acts, the office of law does not extend to
that* which lies in the thought and conscience of the
individual." 1 The true reason why the criminal
law does not attempt the punishment of moral guilt
is, therefore, not because it does not have the means
at its disposal for discovering and correctly measur-
ing it, but because that is not the purpose for which
it exists. In short, the criminal law would not
punish sin, quh sin, if it could.

It may be replied, however, that such ideas as
malice, motive, and extenuating circumstances are
found playing prominent parts in the definition of
crimes, and in the administration of criminal justice.
In a certain sense they do ; but not in such a sense
as to invalidate the position that we have assumed.
Let us see how this is.

First of all we must distinguish between the ideas
of intent and motive. Intent has reference to the
will of the agent, and when present indicates that

1 First Book of Jurisprudence, p. 44.

PUNITIVE JUSTICE 865

the agent desires the result which is the consequence
of his act. Amos defines it as that "foresight or . . .
attitude of mind, of a person about to act, towards
the immediate consequences of his act." 1 Motive,
on the other hand, has reference to the ground or
reason upon which intent is founded. Thus, when
one man shoots another, the intention is exhibited
by the fact that the slayer, knowing the nature and
necessary consequences of his act, freely wills to
pull the trigger, because he desires the death of his
victim. The motive, however, for the act lies in
the anger, jealousy, cupidity, or fear which has
aroused the desire.

It does not need be said that, while the intent
must be present in order to create moral respon-
sibility, it is the character of the motive which
in ethics constitutes the main factor in estimating
the degree of guilt. In law, on the other hand, the
motive is almost never considered, and even the
intent may or may not be actually present; for
though in general the law punishes only intentional
acts, yet, under certain circumstances, it will presume
an intent, and not allow this presumption to be
rebutted by the defendant. Thus if a man of sane
mind fire a loaded pistol upon a crowded street, he may
be held criminally responsible for the consequences
of his deed even though he intended no harm. He
will not be allowed even to produce evidence that
he was without evil intent, except in answer to the
charge of murder. This doctrine of the law is

1 Science of Law, p. 103.

866 SOCIAL JUSTICE

founded upon the conception of an average man,
and every individual is called upon, at his peril, to
show that discretion in his conduct which becomes
such an average individual. This is clearly a repudi-
ation of the idea that punishment should be appor-
tioned according to actual moral guilt. For, as a
matter of fact, the individual may be in intelligence
below the standard of the average man, but, unless
this deficiency is so marked as to fall within the
exceptions based on infancy or madness, it is disre-
garded by the law. Criminal liability, says Holmes,
"is found in the conception of the average man, the
man of ordinary intelligence and reasonable pru-
dence. Liability is said to arise out of such conduct
as would be blameworthy in him. But he is an
ideal being, represented by the jury when they are
appealed to, and his conduct is an external or objec-
tive standard when applied to any given individual.
That individual may be morally without stain,
because he has less than ordinary intelligence or
prudence. But he is required to have those qualities
at his peril. If he has them, he will not, as a
general rule, incur liability without blameworthi-
ness." *

Again, take that well-known maxim that " igno-
rance of the law excuses no one." What possible
ground can there be for the rigid enforcement of
such a principle except simple expediency? No
legislator or judge would deny that instances are
constantly occurring in which persons offend the

1 0. W. Holmes, Jr., The Common Law, p. 51.

PX7NITIVB JUSTICE 867

law by reason of an ignorance due to no real fault
on their part. Yet because many guilty would escape,
were it allowable for ignorance to be set up as a de-
fence, social safety demands that the rule be made
absolute.

The attitude of the law towards motive and intent
is made more manifest by the manner in which the
idea of " malice " is defined by it. In ordinary use
the word "malice" indicates that there is in the
mind of him by whom it is held an evil motive or
desire. In the law this is not the case. In its
eyes it has simply the ethically neutral meaning of
an intent to violate a law, whether with good mo-
tive or bad. Thus in Bouvier's Law Dictionary, the
word is defined as, " the doing a wrongful act inten-
tionally without just cause or excuse/' And it is
added: "Malice is never understood to denote gen-
eral malevolence or unkindness of heart, or enmity
toward a particular individual, but it signifies rather
the intent from which flows any unlawful and in-
jurious act committed without legal justification."
In short, then, malice, in the legal sense, connotes a
particular kind of intent; namely, the intent to
violate a law ; or, to put it another way, to commit
an injury without sufficient legal justification. 1 Thus
the offence of " malicious prosecution " means simply
the institution of criminal legal proceedings against

1 Here, as said above, the intent may be not a real but only a pre-
sumed one. Thus, in slander, the real question is not as to whether
the defendant intended to injure the plaintiff by the words spoken,
but whether, as a matter of fact, the words uttered were of such a
character as to be calculated to injure.

868 SOCIAL JUSTICE

another without sufficient legal justification. So
also, when we speak of malice prepense, as required
to be proved in order to convict one of murder, the
meaning is nothing more than that it must be shown
that the defendant actually and deliberately intended
to slay his victim.

Sometimes, however, it is true that courts of law
actually attempt the determination of the presence
or absence of a motive as distinguished from mere
intent. This occurs when there is doubt as to
whether a given act has been committed by the
individual charged with it. In such cases the pres-
ence or absence in the individual on trial of an
adequate motive for committing the crime in ques-
tion has a value as circumstantial evidence. Here
it is to be observed, however, that the motive is not
used as a means for determining degree of guilt,
but simply as a species of proof to increase that
presumption of guilt which other circumstances have
aroused. It is employed as a single link in a chain
of circumstantial evidence. 1

Another though less important fact than the one
we have just been considering, is that in ethics if an
evil act be attempted, but thwarted by some outside
circumstance, the guilt in the individual is none the

1 Holmes says : " In some cases, actual malice or intent, in the com-
mon meaning of those words, is an element in crime. But it will be
found that, when it is so, it is because the act when done maliciously
is followed by harm which would not have followed the act alone, or
because the intent raises a strong presumption that an act, innocent
in itself, will be followed by other acts or events in connection with
which it will accomplish the result sought to be prevented by the
law." The Common Law, p. 76.

PUNITIVE JUSTICE 869

less. In law, however, mere intent to commit, with-
out an actual beginning of the act, is never punished.
Thus, if a burglar go to rob a house, and be frightened
off by a policeman, no legal offence has been com-
mitted ; whereas in ethics, the sin is manifest. The
crime of criminal conspiracy appears at first to be an
exception to this principle, for here the parties con-
spiring either to reach a lawful end by unlawful
means, or to attain an unlawful end by lawful
means, are held criminally responsible, even though
no overt act in pursuance of this purpose be com-
mitted. The mere fact that they have so conspired
is held sufficient. In truth, however, this is no
exception to the principle we have stated, for by its
very definition, criminal conspiracy consists in the
conspiring and not in any unlawful acts which may
be the outcome of the conspiracy. And thus, when
unlawful acts are committed by conspirators, such
conspirators may be held criminally liable for two
distinct crimes : the conspiracy, and the unlawful act
or acts committed in pursuance thereof.

But while the law does not punish mere intent, it
does punish attempt. Thus, where an overt act is
committed which is plainly but preliminary to the
commission of a crime, as, for instance, where a man
strikes a match to fire a house but blows it out
when he perceives himself detected, he is criminally
liable.

Also, though the intent itself is not punished, it
is yet taken into consideration in determining the
criminal nature of an overt act. Thus a simple

2b

870 SOCIAL JUSTICE

assault to injure, an assault to kill, and an assault
with intent to rape are different crimes and differ-
ently punished. Thus, also, an accidental homicide
becomes murder when it results from an act other-
wise illegal ; as, for instance, where a man is resist-
ing an officer of the law, or is firing at a neighbors
fowls and accidentally kills an unseen man.

What most clearly appears to be contradictory
to the position we have taken as to our relation
between law and morality is the fact that mitigating
or extenuating circumstances are often brought for-
ward in criminal trials to secure a lessening of pun-
ishment in those cases where there is a discretion
allowed by the law, either to the judge or to the jury,
as to the severity of the penalty to be imposed.
Here, at first thought, it does seem that the idea is
present that the conditions that modify moral guilt
should have an influence in determining the measure
of punishment imposed. In a certain sense, this is
true. At the same time we think when the matter
is carefully examined it will be found that purely
utilitarian considerations will be found sufficient to
support this discretion in almost if not in every case
in which it is allowed. Thus, for instance, it may
be recognized that justice will be more reformative
when tempered in certain cases by mercy, or that its
educative influence upon the moral thought of the
people will be greater when the courts of law are
seen to give weight to those same considerations
which enter into the estimation of moral desert
Therefore, in order to secure these beneficial results,

PUNITIVE JUSTICE 871

those who allow the discretion, and the judges who
exercise it, may be willing to suffer what little the
law may lose in its deterrent effect. That such util-
itarian considerations are at the basis of that discre-
tion given to judges and juries in fixing amounts of
punishment, is made evident by the fact that where
deterrence is especially needed, the law does not hesi-
tate to disregard extenuating circumstances. Thus,
under ordinary conditions a judge or jury is inclined
to look leniently upon the man who, after vainly
seeking work or alms, steals bread for his starving
children; but let a famine arise, so that there are
thousands in want, and the law will quickly recog-
nize the need for severity and, so far from admitting
absolute want, however undeserved, as an excuse for
theft, will even increase the penalties ordinarily
inflicted. 1

The most apparent exception to the doctrine that
goodness of motive will not render innocent an
otherwise criminal act, is the fact that homicide when
committed in self-defence, or defence of the life of
another, is justified by the law. When, however, this
matter is closely examined, it is found that there are
reasons other than those of moral responsibility which
are fully adequate to explain the attitude of the State
in this respect. In the first place, if we remember
that the chief purpose of the criminal law is to deter
from crime, it will be seen at once that if it is known
that the law permits self-defence, even to the point

»Cf. Green, Political Obligation, §§ 194, 5, 6, and Bosanquet, Phila-
tophical Theory of the State, p. 231.

872 SOCIAL JU8TICB

of killing, this of itself furnishes in many cases an
efficient deterrence. On the other hand, a threat of
punishment can have no real deterrent effect upon
an individual threatened with serious assault, for no
future penalty can have at the time so great an
influence as the danger which is immediately threat-
ened. Furthermore, it is to be remembered, that he
who is making the assault is himself attempting to
commit a crime. Therefore, in exercising the right
of self-defence, one is in reality endeavoring to pre-
vent an illegal act. That this is the essential motive
of the right is shown by the fact that resistance to
an assault can never rightfully go beyond this. As
Blackstone says, when speaking of self-defence : " It
is held an excuse for breaches of the peace, nay even
for homicide itself ; but care must be taken that the
resistance does not exceed the bounds of mere defence
and protection; for then the defender would him-
self become an aggressor." 1 It thus appears that,
after all, the right of self-defence against assault is
no broader than the right of any bystander, though
not himself threatened, to prevent with force, or
even killing if necessary, the execution of a criminal
act. In such cases the one attacked, or the bystander,
is allowed himself to assume the office of a guardian
of the peace, because only by so doing can effective
restraint be applied.

Upon purely utilitarian grounds, therefore, the law
is justified in excusing injuries done in legitimate
self-defence.

1 Commentaries, Book HI, Chapter L

PUNITIVE JUSTICE 873

Sufficient has been said to show that in the admin-
istration of criminal law the idea of crime is kept
wholly distinct from that of sin; the idea of legal
wrong-doing from that of wickedness. When, how-
ever, we turn from the administration of the law to
its enactment, the conditions are changed. In deter-
mining what acts shall be declared mala prohibita,
legislators are necessarily controlled, not only by
considerations of social safety and expediency, but
by motives of morality. That is to say, laws are
enacted to prevent not simply such acts as are
counter to public safety and material welfare, but
such as are wicked when judged by the moral canons
of the legislators. There are, to be sure, a school of
thinkers who, accepting the doctrines put forward by
J. S. Mill in his Essay on Liberty, maintain that the
power of the State should never be extended so as to
cover acts not matters of social expediency. The
invalidity of the reasoning upon which such an
absolute principle is founded we have, however,
elsewhere shown.

This attempt on the part of the criminal code
to advance morality by the punishments which it
threatens is, however, by no means an acceptance
of the idea that punishment should be inflicted in
a retributive sense. Certain acts are prohibited
solely because they are deemed wicked, or immoral,
and punishment is inflicted upon those who disre-
gard the prohibitions; but, and here is the point,
such punishments are inflicted not simply because
it is desired that the offenders shall suffer pain, but

874 80CIAL JUSTICE

in the hope, either that others will thereby be
deterred from sinning, or that some reformative or
educational influence will be exercised by it.

It may thus be said in conclusion, that when we
assert that law and morality occupy distinct fields, it
is meant, not that the law never attempts to advance
morality or to suppress vice, but that it never makes
moral guilt a test for determining, or a standard for
measuring, legal guilt; and, as a necessary conse-
quence, that it never inflicts punishment except for
the sake of some future good to be reached by it.

Capital Punishment. — There is one form of pun-
ishment which, while it does not logically call for
the application of principles not already discussed,
is yet of such a special character as to warrant a
few words of special treatment. We refer to capital
punishment.

Beccaria, as we have already mentioned, denied
that there could be a possible justification for the
infliction of the death penalty on the ground of its
incompatibility with the original compact, which,
as he conceived, furnished the ethical basis for all
civil society. Kant's answer to this we have also
considered. But the right to punish by death has
been widely denied by many who place no faith in
the social-compact theory. Those who advocate
reformation as either the sole or chief aim of penal
law necessarily oppose its infliction, for, as is obvious,
no idea of a good to the victim himself can be con-
sidered a possible outcome from it. Others deny
its expediency, and therefore its justice, aside from

PTOITIVE JUSTICB 876

its abandonment of the reformatory idea; alleging
that, instead of being morally educative to the
community at large, it is brutalizing, and that, as
experience has demonstrated, it is not even deterrent
to any considerable degree. This leaves only the
preventive aim for it to realize; but for this it is
said life imprisonment is fully adequate.

When the opposition to capital punishment is
put upon grounds such as these, the question is
reduced to one simply of fact, and can be argued
upon that basis. And this, as we believe, is the
only manner in which it should be argued. There
are, however, a considerable number who base their
denial to society of a right to inflict death upon the
a priori ground that the right of the individual to
his life is of such an absolute character that it may
be violated under no conceivable circumstances.

Upon this point we take issue with them. As
our whole argument thus far has shown, there are,
and can be, no absolute rights. It is true that, inas-
much as the possession of life is to the individual
a conditio sine qua non for the enjoyment of any
other right, his taking off can scarcely be justified
so long as we look simply to his particular good.
When, however, we view him as a soeius, and con-
sider his rights from the social standpoint, this is no
longer so. When so considered it is easy to conceive
conditions under which the sacrifice of individual
life is the lesser of two evils. This becomes con-
spicuous when a homicide is demanded in self-defence
either of an individual or a nation.

876 SOCIAL JUSTICE

Still, it is not to be understood that, even as
between the life of a nation and that of one or a
few of its citizens, the former should always prevail.
Whether it should or not is dependent upon the
service rendered to humanity by the national unit in
question.

Thus also as between nations, there is no absolute
right inhering in any of them to a continued inde-
pendent existence. As Ritchie says: "The exist-
ence of any particular organism (either a political
society or any other) not being of an absolute value,
but simply as a means towards the well-being of
individuals, there can be no absolute moral right to
self-preservation in a society against some higher or
better type of society in which these individuals may
be absorbed or against the formation of more closely
coherent and better societies out of an ill-compacted
unity. . . . The right of self-preservation in a
society is only valid against individuals who would
break it up into mere chaos, not against any better
form of society which may take its place " *

Conclusion. — In the face of an increasing material
prosperity, a rising standard of comfort for the
working classes, a widening diffusion of knowledge,
and a general elevation of moral standards, not to
speak of the strenuous and expensive efforts made
by civilized States to prevent crime, a rapid decrease
in criminality would naturally be expected, while an
actual increase would seem impossible. Neverthe-
less, opinion seems to be divided as to whether or

* Natural Rights, Chapter VI.

PUNITIVE JUSTICES 877

not there can, in fact, be traced during recent years
a relative decrease in crime as compared with the
increase of population. Superintendent Brockway
of the Elmira Reformatory a few years ago declared
that "every nation provided with the means of
computing such evidence, reports a steady growth of
the evil far greater than the corresponding increase
in population. The proportionate difference is espe-
cially manifest of late years. It is conceded that
within the past two decades, crime has more than
doubled." And the eminent penologist, M. Georges
VidaJ, in the introduction to his Principes fondamenr
taux de la pencdite, speaks of " la marche toujours
croissants de la crimmcdite de 1826 d 1880 " ; and
after quoting figures declares that "ce mat social
et ce danger toujours croissants ne sont du reste pas
speciaux & la France: Us sont generaux h tons les
pays civilisSs."

Other writers, however, either deny the accuracy
of the figures upon which the above conclusions are
founded, or contest the validity of the reasoning by
which the conclusions are reached. Thus Hon.
Carroll D. Wright in a work just published de-
clares: 1 "The question whether crime in this
country is increasing or decreasing has not been
definitely settled:" for "although the statistics of
the whole number of criminals or sentences for
crimes committed for any locality usually show
increase, and sometimes alarming increase, they
bring out only the superficial view of the case.

1 Practical Sociology, 1809.

376 social J

Still, it is not to be i:
between the life of a nati
few of its citizens, the form*
Whether it should or not
service rendered to human i
question.

Thus also as between n
right inhering in any of '
pendent existence. As ;
ence of any particular <
society or any other) not
but simply as a means
individuals, there can h
self-preservation in a s<
better type of society ii
be absorbed or against
coherent and better s«
unity. . . . The rk

society is only valid

break it up into mer

form of society whicl
Conclusion. — In t

prosperity, a rising

working classes, a ^

and a general ele^

speak of the stre^

by civilized States

in criminality wo

actual increase -

leys, Qpiuiou

II be possible, even with the most

s, to make the reformation obtained

he inevitable corruption that pun-

ke evil associations it necessitates,

i pride and self-respect it gives. As

value of punishment, this is in the

problematical ? and many there are

iluce its possible influence to a very

in. How far penal laws have been

impossible to say ; but at the most, as

, they have been efficient only to the

nting an increase of crime. As r&-

, the preventive idea, except where the

death or imprisonment for life is

accomplished.

ra, then, which all these facts teach

or a solution of the problem of crime, the

nust be to abolish the causes of crime* in

iey are dependent upon conditions within

. This means, in truth, entire social re-

for wherever there is injustice, there

me. Not all crime, it is true, may be

social causes. Some of it is undoubtedly

e deliberate choice of evil minds or to the

gs of the passions. But with social justice

re realized, with economic and socia) rela-

perly regulated, and with true education,

d moral, technical and academic, adequately

a long step will have been taken towards the

of the grave evil we have been discussing*

possibly exaggerated, there is yet substan-

880 SOCIAL JU8TICE

tial truth in the declaration of Ferri that " the least
measure of progress with reforms which prevent
crime, is a hundred times more useful and profitable
than the publication of an entire penal code." 1

A deterrent penalty only becomes operative in
those cases where it has failed of effect. A reform-
atory discipline is only applicable where the subject
of it has already been corrupted. An educative law
presupposes an ignorant or biassed mind. In very
large measure the necessity for the enforcement of
penal laws is a demonstration that proper preventive
measures have not been taken. Fundamentally, then,
any penal system is unjust in so far as the necessity
for it might have been avoided by proper social con-
duct. Thus, as Green has said, " The justice of the
punishment depends on the justice of the general
system of rights ; not merely on the propriety with
reference to social well-being of maintaining this or
that particular right which the crime punished vio-
lates, but on the question whether the social organ-
ism in which a criminal has lived and acted is one
that has given him a fair chance of not being a
criminal/' *

1 Criminal Sociology, p. 1S5.

* Principles of Political Obligation, § 188.

INDEX

Absoluts Rights, impossibility of,
21-26.

Aureus, Naturrecht, quoted, 208.

Amiel, Journal, quoted, 65.

Amos, Science of Law, quoted, 866.

Anarchism, as an ideal, 811 et seq.

A priori beliefs, Spencer's concep-
tion of nature of, 274.

Aquinas, his classification of laws,
16.

Aristocracy, justification of, 48-46.

Aristotle, doctrine of, as to equality,
86; criticism of Plato's com-
munism, 60; his distinction be-
tween corrective and distributive
justice criticised, 316.

Baboiuv, communistic theories of,

61.
Beccaria, his theory of punishment,

829.
Bentham, J. , his theory of property,

86, 92-94 ; Defence of Usury, cit-
ed, 120 ; definition of liberty, 237.
Bismarck, views of, as to right of

subsistence, 206.
Blackstone, Commentaries on Law,

quoted, 372.
Blanc, Louis, theory of right to

labor, 206.
Btthm-Bawerk, Capital and Interest,

quoted, 120, 124, 133, 164 ; cited,

116 n., 125 n.
Bonar, Philosophy and Political

Economy, quoted, 167, 204.
Boeanquet, The Philosophical Theory

of the State, quoted, 260 ; cited,

268 n., 371 n.

381

Bradley, F. N., Ethical Studies,

quoted, 880 n.
Bryce, J., art. "Equality/' cited, 36 ;

quoted, 68.
Burgess, Professor, Political Science

and Comparative Constitutional

Law, quoted, 267.
Burke, Edmund, quoted, 38.

Cabbt, communistic theories of, 61.
Caird, Hegel, quoted, 264; cited,

261 n. The Critical Philosophy

of Kant, quoted, 260 n.
Capital punishment, 874 et seq.
Carlyle, cited, 8.
Charity and Justice, compared, 49-

61.
Christianity, doctrines of, as to

spiritual equality, 39.
Civil Equality, 61-64.
Communism, 59 et seq.
Comte, cited, 8, 9.
Coercion, legitimate sphere of, 263

et seq.
Considlrant, Th&orie du droit de

propri6t&, cited, 206.
Corrective Justice, Aristotle's defi-
nition of, criticised, 316.
Crime, social importance of, 820;

see Punishment.
Criminology, new school of, 336 et

seq.

Dbwbt, Professor John, cited, 287 ;
quoted, 290.

Distributive Justice, canons of, 107
et seq. ; labor theory, 107 ; effort
theory, 194; needs theory, 198;

882

INDEX

Aristotle's distinction between,
and correctiTe justice, 816; see
Justice.

Economic Equality, GO el seq.

Effort theory of distributive justice,
104.

Ellis, H., The Criminal, quoted,
337,338.

Ely, R. T., French and German
Socialism, quoted, 61, 62, 131.

Equality, ss an element in distrib-
utive justice, 20 et seq. ; different
kinds of, 36 ; spiritual, 36 ; natural,
40 ; civil, 61 ; political, 64 ; social,
68 ; economic, 60.

Exploitation Theory, 121 et seq.

Family, value of, as asocial element,

82-36.
Fichte, Science of Right*, quoted as

to theory of punishment, 841, 842,

and i).
Fouillee, Science social* contempo-

raine, quoted, 843 n.
Fourier, theory of, as to right to

labor, 204.
Fozwell, Professor, introduction to

Monger's Bight to Whole Produce

of Labor, quoted, 6, 7, 06, 116.
Franck, Fhilosophie du droit penal,

cited, 343 n.
Freeman, E. A., Historical Essays,

quoted, 313.
Freedom, definition of, 218.
French, Concept of Law in Ethics,

quoted, 30.
Frey, Sir E., art " Inequality in

Punishment," quoted, 844.

Okorob, Henry, theories of, as to
property in land, 162-167; crit-
icism of, 178-103.

Godwin, William, Political Justice,
quoted, 80, 41, 110, 322, 324.

Green, T. H., Prolegomena to Eth-
ics, quoted, 23, 68 n., 71, 73, 246 ;

Political Obligation, quoted, 224,
880 ; cited, 371 n.
Orotius, theory of, as to property,
70.

Heobl, Philosophy of Bight, quot-
ed, 216; his theory of punish-
ment, 364 et seq.

Hobbe8, Thomas, Leviathan, quoted,
41,84.

Holland, Elements of Jurisprudence,
quoted, 00.

Holmes, O. W., Jr., The Common
Law, cited, 102; quoted, 366,
368 n.

Hume, Of the Social Contract,
quoted, 312.

Huxley, Thomas, Natural and Po-
litical Bights, quoted, 142, 182;
Evolution and Ethics 9 quoted,
276, 283, 284; criticism of, 286
etseq.

Hyslop, Professor, Elements of
Ethics, quoted, 218.

Ideals, importance of, in social and
political hie, I etseq.

Impartiality, as an element in jus-
tice, 20.

Insurance, working-men's, 206.

Intent, legal, defined, 864.

Interest, justification of, 138-180;
see Usury.

Jakst, Histoire de la science poli-
tique, quoted, 312.

Jenks, Law and Politics in the
Middle Ages, cited, 103 ; quoted,
347.

Justice, idea of, in early times, 13;
according to Sophists, 14 ; Plato
and Aristotle, 16 ; denned, 20-26 ;
compared with charity, 40-61.

Kant, ethical system of, 18-20
theory of property, 102, 200
Philosophy of Law, quoted, 244

INDEX

883

theory of right, 260; theory of
punishment, 826 et seq.
Kldd, Benjamin, Social Evolution,
cited, 216, 280 ; doctrines of, ex-
amined and criticised, 298 et seq.

Labor, right to, 203.

Labor theory of distributive justice,
131-166.

Land, right of property in, Chapter
VI; Locke's view, 110.

Law, does not seek distributive
justice, 103-106 ; its relation to
morality, 363 el seq.

Lecky, W. E. H., History of Euro-
pean Morals, quoted, 347.

Legal theory of property, 88-106.

Liberty, denned, 218.

Life, right to, 376 et seq.

Lilly, W. 8., Eight and Wrong,
quoted, 226.

Locke, John, conception of natural
law, 17 ; theory of property, 107-
114 ; theory of usury, 120.

Mackenzie, Professor, Introduc-
tion to Social Philosophy, quoted,

21 n., 83, 194.
Maine, Sir Henry, cited, 86.
de Maistre, cited, 8, 9.
Malice, legal, denned, 867.
Mallock, Aristocracy and Evolution,

cited, 294 n.
Malthus, Robert, Essay on the

Principle of Population, quoted,

106.
Marx, Karl, Das Kapital, cited, 131.
McTaggert, art " Hegel's Theory of

Punishment," cited, 314 n., 367 n.
Mellone, 8. H., art. " Some of the

Leading Ideas of Comte's Posltiv-

ism," quoted, 249 n.
Menger, The Bight to the Whole

Produce of Labor, quoted, 4, 104,

116, 126 n., 203, 206.
Middle Ages, characteristics of

thought of y 8, 16.

Mill, J. S., Utilitarianism, quoted,
29 ; doctrine of equality criticised,
70-74 ; Difficulties of Socialism,
quoted, 74; Political Economy,
quoted, 76, 144 ; theory of prop-
erty in land, 168-162, 193 ; Essay
on Liberty, quoted and criticised,
238 et seq.

Montesquieu, theory of property of,
88.

Morality, its relation to law, 868 et
seq.

Motive, legal, defined, 866.

Na tubal Equalitt, 40-61.
Natural Law, according to Sophists,

14 ; Socrates, 16 ; in Middle Ages,

16; Aquinas, 16; Locke, 17;

Kant, 18-20 ; denned, 228.
Needs, theory of, as to distributive

justice, 198.
Nemours, Dupont de, Origins et

progres d'unc science nouvelle,

quoted, 167.

Occupation Thxobt, as to right of
property, 79-83 ; to what extent
recognized by the law, 100-103.

Opportunity, for development, a
right, 47 et seq.

Pains, Thomas, Common Sense,
quoted, 313.

Physiocrats, doctrines of, as to
property, 114.

Plato, communism of, 60; his con-
ception of equality, 86.

Political Equality, 64-68.

Pollock, Sir Frederick, First Book
of Jurisprudence, quoted, 101,364.

Proal, Le crime et la peine, cited,
840 n.

Property, right of, occupation
theory, 79 ; legal theory, 88 ; labor
theory, 107 et seq. ; in land,
Chapter VI ; effort theory, 194 ;
needs theory, 198.

884

INDEX

Proudhon, oomnraninn of, 01^6 ;
theories of, as to property, 126-
130; What is Property t quoted,
as to natural equality, 43.

Punishment, theories of, retributiTe,
822 et seq. ; utilitarian, 368 et seq.

Rashdall, quoted as to right of
punishment, 880, 838, 844 n., 346,
367 n. ; art "Justice," cited, 00 n.

Retributive theory of punishment,
822.

Revenge, 840 et $eq.

Ricardo, David, influence of doc-
trines of, upon development of
socialism, 118, 124.

Rights, no absolute, 21-26.

Ritchie, David, Natural Rights,
quoted, 08, 870; Darwin and
Hegel, quoted, 140.

Rodbertus, socialistic theories of,
122, 180, 168.

Rousseau, theory of, as to property,
81, 88, 92 ; distinction of, between
the volonti generate and the vol-
onti de font, 267.

Salmons, J. W., art " The Law of
Nature," quoted, 18.

8alter, W. M., quoted, 227.

8churman, J. G., Ethical Import of
Darwinism, cited, 17 ; Review of
Spencer's Justice, quoted, 281.

Seligman, E. R. A., cited, 180 n,

Service, obligation of, 201.

Simon, Jules, cited, 313.

Smart, Professor, introduction to
Bohm-Bawerk's Capital and In-
terest, quoted, 133, 184.

Smith, Adam, Wealth of Nations,
quoted, 02 ; views of, as to labor
theory, 114.

Social Equality, 68-69.

Socialism, practical difficulties of,
144-166.

8ocrates, ethical philosophy of,
16.

Sophists, ethical philosophy of, 14.

Spence, Thomas, The Meridian Sun
of Liberty, cited, 168.

Spencer, Herbert, theory of , as to
property in land, 108 et seq.;
criticism of, 178 et seq. ; Data of
Ethics, quoted, 247 n. ; doctrines
of , as to competition among men
examined and criticised, 200 et
seq. ; Social Statics, quoted, 312.

Spiritual Equality, 86-40.

Stephen, Leslie, Social Bights and
Duties, quoted, 88, 291.

State, the, its right to be, 229 et seq.

Stephen, Sir James Fitzjames, Lib-
erty, Equality, Fraternity, cited,
60, 280, 240; quoted, 67; his
theory of punishment criticised,
860 et seq.; his doctrine of co-
ercion, 204.

8toics, doctrine of , as to equality,
37-89.

Subsistence, right to, 208.

Suffrage, right to, 66.

Taxation, ethical basis of a just

system of, 188 and n.
Thompson, William, An Inquuy

into the Principles of Wealth,

cited, 117, 126.

TJstrar, history of doctrines of,
119-121.

Utilitarianism, part played by idea
of equality in, 07-74 ; its justifica-
tion of the state criticised, 287 et
seq.

Vbllbitt, 218.

Vidal, Prindpes fondamentaux de

la penality cited, 343 n., 801 ;

quoted, 302, 377.
Vindictive theory of punishment,

see Retributive theory.

Wallace, A. R., theory of, as to
property in land, 107.*

INDEX

885

Wheeler, B. L, Life of Alexander

the Great, quoted, 263.
Wieser, Natural Value, quoted,

133 n.
Willoughby, W. F., Working-men's

Insurance, quoted, 206.
Willoughby, W. W., The Nature

of the State, quoted, 223, 307.

Windelband, History of Philosophy,

quoted, 38.
Working-men's Insurance, 206.
Wright, C. D., Practical Sociology,

quoted, 377.

Zellbr, History of Greek Philos-
ophy* quoted, 37.

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