Appendix 3. Further Considerations on Justice
The intention of this Appendix is to give some more particular explication of the origin and nature of Justice, and to mark some differences between it and the other virtues.
This appendix aims to explain the origin and nature of justice in more detail. It also aims to point out some differences between justice and the other virtues.
The social virtues of humanity and benevolence exert their influence immediately by a direct tendency or instinct, which chiefly keeps in view the simple object, moving the affections, and comprehends not any scheme or system, nor the consequences resulting from the concurrence, imitation, or example of others. A parent flies to the relief of his child; transported by that natural sympathy which actuates him, and which affords no leisure to reflect on the sentiments or conduct of the rest of mankind in like circumstances. A generous man cheerfully embraces an opportunity of serving his friend; because he then feels himself under the dominion of the beneficent affections, nor is he concerned whether any other person in the universe were ever before actuated by such noble motives, or will ever afterwards prove their influence. In all these cases the social passions have in view a single individual object, and pursue the safety or happiness alone of the person loved and esteemed. With this they are satisfied: in this they acquiesce. And as the good, resulting from their benign influence, is in itself complete and entire, it also excites the moral sentiment of approbation, without any reflection on farther consequences, and without any more enlarged views of the concurrence or imitation of the other members of society. On the contrary, were the generous friend or disinterested patriot to stand alone in the practice of beneficence, this would rather enhance his value in our eyes, and join the praise of rarity and novelty to his other more exalted merits.
The social virtues of humanity and kindness act immediately through a direct impulse or instinct. This impulse focuses mainly on the particular person who moves our feelings. It does not take in any plan or system, or the consequences of others joining in, imitating, or following our example. A parent rushes to help a child, carried away by the natural sympathy that drives the parent to act. That sympathy leaves no time to consider how the rest of humanity feels or behaves in similar circumstances. A generous person gladly seizes an opportunity to help a friend because kind feelings are in control. The generous person does not care whether anyone else in the universe has ever acted from such noble motives before, or ever will again. In all these cases, social feelings focus on a single person. They seek only the safety or happiness of the person loved and respected. They are satisfied and content with that. The good produced by these kindly feelings is complete in itself. It therefore also arouses our moral approval, without any thought of further consequences. Nor do we need to consider the wider effects of other members of society joining in or following the example. On the contrary, suppose a generous friend or selfless patriot were the only person to do good for others. This would make us value that person even more. We would praise such conduct as rare and original, in addition to recognizing its other, greater merits.
The case is not the same with the social virtues of justice and fidelity. They are highly useful, or indeed absolutely necessary to the well-being of mankind: but the benefit resulting from them is not the consequence of every individual single act; but arises from the whole scheme or system concurred in by the whole, or the greater part of the society. General peace and order are the attendants of justice or a general abstinence from the possessions of others; but a particular regard to the particular right of one individual citizen may frequently, considered in itself, be productive of pernicious consequences. The result of the individual acts is here, in many instances, directly opposite to that of the whole system of actions; and the former may be extremely hurtful, while the latter is, to the highest degree, advantageous. Riches, inherited from a parent, are, in a bad man's hand, the instrument of mischief. The right of succession may, in one instance, be hurtful. Its benefit arises only from the observance of the general rule; and it is sufficient, if compensation be thereby made for all the ills and inconveniences which flow from particular characters and situations.
The social virtues of justice and fidelity are different. They are highly useful, indeed absolutely necessary, to human well-being. But their benefit does not come from each individual act. It comes from the whole system, followed by all or most of society. General peace and order accompany justice, or the general practice of leaving other people's possessions alone. But respecting one citizen's particular right can often have harmful consequences when considered on its own. In many cases, the results of individual acts are directly opposite to those of the whole system. Individual acts can be extremely harmful, while the whole system is beneficial to the highest degree. Wealth inherited from a parent is a means of doing harm in the hands of a bad person. The right of inheritance may be harmful in a particular case. Its benefit comes only from observing the general rule. That is enough, if it makes up for all the harm and inconvenience caused by particular characters and situations.
Cyrus, young and unexperienced, considered only the individual case before him, and reflected on a limited fitness and convenience, when he assigned the long coat to the tall boy, and the short coat to the other of smaller size. His governor instructed him better, while he pointed out more enlarged views and consequences, and informed his pupil of the general, inflexible rules, necessary to support general peace and order in society.
Young and inexperienced, Cyrus considered only the case before him. He thought only of what fit and seemed convenient in that case when he gave the long coat to the tall boy and the short coat to the smaller boy. His tutor taught him better by pointing out the wider implications and consequences. He explained to Cyrus that general, inflexible rules are necessary to maintain peace and order in society.
The happiness and prosperity of mankind, arising from the social virtue of benevolence and its subdivisions, may be compared to a wall, built by many hands, which still rises by each stone that is heaped upon it, and receives increase proportional to the diligence and care of each workman. The same happiness, raised by the social virtue of justice and its subdivisions, may be compared to the building of a vault, where each individual stone would, of itself, fall to the ground; nor is the whole fabric supported but by the mutual assistance and combination of its corresponding parts.
The happiness and prosperity that humanity gains from benevolence and its related social virtues may be compared to a wall. Built by many hands, the wall rises with each stone added to it. It grows in proportion to the diligence and care of each worker. The same happiness, built through justice and its related social virtues, may be compared to a vaulted structure. Each stone in the vault would fall to the ground on its own. The whole structure stands only because its corresponding parts support one another and work together.
All the laws of nature, which regulate property, as well as all civil laws, are general, and regard alone some essential circumstances of the case, without taking into consideration the characters, situations, and connexions of the person concerned, or any particular consequences which may result from the determination of these laws in any particular case which offers. They deprive, without scruple, a beneficent man of all his possessions, if acquired by mistake, without a good title; in order to bestow them on a selfish miser, who has already heaped up immense stores of superfluous riches. Public utility requires that property should be regulated by general inflexible rules; and though such rules are adopted as best serve the same end of public utility, it is impossible for them to prevent all particular hardships, or make beneficial consequences result from every individual case. It is sufficient, if the whole plan or scheme be necessary to the support of civil society, and if the balance of good, in the main, do thereby preponderate much above that of evil. Even the general laws of the universe, though planned by infinite wisdom, cannot exclude all evil or inconvenience in every particular operation.
All natural laws governing property, like all civil laws, are general. They consider only certain essential facts of a case. They do not consider the character, circumstances, or connections of the person involved. Nor do they consider any particular consequences that applying these laws may have in a particular case. Without hesitation, these laws strip a generous person of everything acquired by mistake without a valid claim. They do so to give it all to a selfish miser who has already amassed a vast store of unnecessary wealth. The public good requires that property be governed by general, inflexible rules. These rules are chosen to serve the public good as well as possible. Yet they cannot prevent every individual hardship or produce good consequences in every case. It is enough if the whole system is necessary to sustain civil society, and if it produces far more good than harm overall. Even the general laws of the universe, though designed by infinite wisdom, cannot prevent all harm or inconvenience in every particular instance.
It has been asserted by some, that justice arises from Human Conventions, and proceeds from the voluntary choice, consent, or combination of mankind. If by CONVENTION be here meant a PROMISE (which is the most usual sense of the word) nothing can be more absurd than this position. The observance of promises is itself one of the most considerable parts of justice, and we are not surely bound to keep our word because we have given our word to keep it. But if by convention be meant a sense of common interest, which sense each man feels in his own breast, which he remarks in his fellows, and which carries him, in concurrence with others, into a general plan or system of actions, which tends to public utility; it must be owned, that, in this sense, justice arises from human conventions. For if it be allowed (what is, indeed, evident) that the particular consequences of a particular act of justice may be hurtful to the public as well as to individuals; it follows that every man, in embracing that virtue, must have an eye to the whole plan or system, and must expect the concurrence of his fellows in the same conduct and behaviour. Did all his views terminate in the consequences of each act of his own, his benevolence and humanity, as well as his self-love, might often prescribe to him measures of conduct very different from those which are agreeable to the strict rules of right and justice.
Some have claimed that justice arises from human conventions, through people’s voluntary choice, consent, or agreement. If “convention” here means a promise, as it usually does, nothing could be more absurd than this claim. Keeping promises is itself one of the most important parts of justice. Surely we are not bound to keep our word because we have given our word to keep it. But “convention” may mean a sense of common interest. Each person feels this sense, recognizes it in others, and joins with them in a general plan of action that benefits the public. We must admit that, in this sense, justice arises from human conventions. For a particular act of justice may clearly have harmful consequences for both the public and individuals. If we accept this, it follows that everyone who embraces justice must look to the whole plan or system. Each person must also expect others to follow the same course of conduct. If people looked only at the consequences of each of their own acts, their benevolence and humanity, as well as their self-interest, might often lead them to act very differently from what the strict rules of right and justice require.
Thus, two men pull the oars of a boat by common convention for common interest, without any promise or contract; thus gold and silver are made the measures of exchange; thus speech and words and language are fixed by human convention and agreement. Whatever is advantageous to two or more persons, if all perform their part; but what loses all advantage if only one perform, can arise from no other principle There would otherwise be no motive for any one of them to enter into that scheme of conduct.
Thus, two men row a boat by shared convention and for their common interest, without any promise or contract. Similarly, gold and silver become measures of exchange. Speech, words, and language are also established by human convention and agreement. Any arrangement that benefits two or more people if all do their part, but loses all benefit if only one does, can arise from no other principle. Otherwise, none of them would have a reason to take part in the arrangement.
This theory about the origin of property, and therefore of justice, is essentially the same as the one suggested and adopted by Grotius: 'Hinc discimus, quae fuerit causa, ob quam a primaeva communione rerum primo mobilium, deinde et immobilinm discessum est: nimirum quod cum non contenti homines vesci sponte natis, antra habitare, corpore aut nudo agere, aut corticibus arborum ferarumve pellibus vestito, vitae genus exquisitius delegissent, industria opus fuit, quam singuli rebus singulls adhiberent. Quo minus autem fructus in commune conferrentur, primum obstitit locorum, in quae homines discesserunt, distantia, deinde justitiae et amoris defectus, per quem fiebat, ut nee in labore, nee in consumtione fructuum, quae debebat, aequalitas servaretur. Simul discimus, quomodo res in proprietatem iverint; non animi actu solo, neque enim scire alii poterant, quid alil suum esse vellent, ut eo abstinerent, et idem velle plures poterant; sed pacto quodam aut expresso, ut per divisionem, aut tacito, ut per occupationem.' De jure belli et pacis. Lib. ii. cap. 2. sec. 2. art. 4 and 5.
The word NATURAL is commonly taken in so many senses and is of so loose a signification, that it seems vain to dispute whether justice be natural or not. If self-love, if benevolence be natural to man; if reason and forethought be also natural; then may the same epithet be applied to justice, order, fidelity, property, society. Men's inclination, their necessities, lead them to combine; their understanding and experience tell them that this combination is impossible where each governs himself by no rule, and pays no regard to the possessions of others: and from these passions and reflections conjoined, as soon as we observe like passions and reflections in others, the sentiment of justice, throughout all ages, has infallibly and certainly had place to some degree or other in every individual of the human species. In so sagacious an animal, what necessarily arises from the exertion of his intellectual faculties may justly be esteemed natural.
The word NATURAL is commonly used in so many senses, and its meaning is so loose, that debating whether justice is natural seems pointless. If self-love and benevolence are natural to humans, and if reason and foresight are also natural, then justice, order, fidelity, property, and society may also be called natural. People’s inclinations and needs lead them to join together. Their understanding and experience tell them that such cooperation is impossible if everyone acts without rules and disregards others’ possessions. Once we observe similar passions and reflections in others, these passions and reflections together give rise to the sense of justice. Throughout all ages, this sense has unfailingly and certainly existed to some degree in every human being. In such a perceptive animal, whatever necessarily arises from the use of its intellectual faculties may rightly be considered natural.
Natural can be contrasted with what is unusual, miraculous, or artificial. In the first two senses, justice and property are undoubtedly natural. But justice and property depend on reason, foresight, planning, and a social union and agreement among people. So perhaps they cannot strictly be called natural in the last sense. If people had lived without society, property would never have been known, and neither justice nor injustice would have existed. But human society would have been impossible without reason and foresight. Lower animals that live together are guided by instinct, which takes the place of reason. But all these disputes are merely about words.
Among all civilized nations it has been the constant endeavour to remove everything arbitrary and partial from the decision of property, and to fix the sentence of judges by such general views and considerations as may be equal to every member of society. For besides, that nothing could be more dangerous than to accustom the bench, even in the smallest instance, to regard private friendship or enmity; it is certain, that men, where they imagine that there was no other reason for the preference of their adversary but personal favour, are apt to entertain the strongest ill-will against the magistrates and judges. When natural reason, therefore, points out no fixed view of public utility by which a controversy of property can be decided, positive laws are often framed to supply its place, and direct the procedure of all courts of judicature. Where these too fail, as often happens, precedents are called for; and a former decision, though given itself without any sufficient reason, justly becomes a sufficient reason for a new decision. If direct laws and precedents be wanting, imperfect and indirect ones are brought in aid; and the controverted case is ranged under them by analogical reasonings and comparisons, and similitudes, and correspondencies, which are often more fanciful than real. In general, it may safely be affirmed that jurisprudence is, in this respect, different from all the sciences; and that in many of its nicer questions, there cannot properly be said to be truth or falsehood on either side. If one pleader bring the case under any former law or precedent, by a refined analogy or comparison; the opposite pleader is not at a loss to find an opposite analogy or comparison: and the preference given by the judge is often founded more on taste and imagination than on any solid argument. Public utility is the general object of all courts of judicature; and this utility too requires a stable rule in all controversies: but where several rules, nearly equal and indifferent, present themselves, it is a very slight turn of thought which fixes the decision in favour of either party.
Among all civilized nations, people have always tried to remove arbitrary judgments and favoritism from property decisions. They have sought to guide judges by general principles and considerations that apply equally to every member of society. For nothing could be more dangerous than allowing judges to consider personal friendship or hostility, even in the smallest case. Moreover, people may believe that personal favor was the only reason their opponent was preferred. When they do, they are certain to feel the strongest hostility toward the officials and judges. Natural reason does not always point to a clear principle of public benefit for settling a property dispute. In such cases, enacted laws are often made to fill the gap and guide proceedings in all courts. When these laws also fail, as often happens, courts turn to precedents. An earlier decision may itself have been made without sufficient reason. Even so, it justly becomes a sufficient reason for a new decision. If there are no directly applicable laws or precedents, courts turn to imperfect and indirect ones for help. They bring the disputed case under these laws and precedents through reasoning by analogy, comparisons, similarities, and correspondences. These connections are often more fanciful than real. In general, it is safe to say that jurisprudence differs from all the sciences in this respect. In many of its finer questions, neither side can properly be said to be true or false. One lawyer may bring a case under an earlier law or precedent by a subtle analogy or comparison. The opposing lawyer will have no difficulty finding an analogy or comparison that points the other way. The judge's preference is often based more on taste and imagination than on any solid argument. Public benefit is the general aim of all courts. It also requires a stable rule for all disputes. But several rules may present themselves that are nearly equal and equally acceptable. In such cases, a very slight turn of thought can settle the decision in favor of either party.
Society’s interests absolutely require possessions to be divided among people, and those divisions to remain stable and constant. Justice and property originate in this need. Generally speaking, it matters little which possessions are assigned to particular people. The assignment is often determined by very trivial considerations. I will mention a few examples.
Suppose several independent individuals formed a society. The most obvious rule they could agree on would be to make present possession the basis of property. Each person would have a right to what they currently possess. The relationship between a person and an object they possess naturally leads to a relationship of ownership. For a similar reason, occupation, or first possession, becomes the foundation of property.
Suppose someone works on an object that previously belonged to nobody, as when cutting down and shaping a tree or cultivating a field. The changes they make create a relationship between them and the object. This relationship naturally leads us to make the object theirs through the new relationship of ownership. Here, this cause works together with public utility, which is served by encouraging industry and labor. Perhaps personal compassion for the possessor also joins these other motives. It may lead us to leave people what they have gained through sweat and labor, and what they have hoped to enjoy permanently. Personal compassion can by no means be the origin of justice, since justice so often conflicts with it. But society’s indispensable needs first establish the rule of separate and stable possession. Then, in a particular case, personal compassion and a reluctance to cause hardship may give rise to a particular rule of property.
I am strongly inclined to think that the right of succession or inheritance depends greatly on such connections in the imagination. A person’s relationship to a former owner creates a perceived relationship to the object. That, I think, is why property passes to someone after a relative dies. It is true that transferring possessions to children or close relatives gives people more encouragement to work. But this consideration can only matter in a cultivated society, whereas the right of succession is respected even among the greatest Barbarians.
The acquisition of property by accession can only be explained by the relations and connections of the imagination. Under the laws of most nations, and according to the natural course of our thoughts, rivers belong to the owners of their banks. The exceptions are vast rivers such as the Rhine or the Danube. These seem too large to become property by accession to the neighboring fields. Yet even these rivers are considered the property of the nation whose territory they flow through. Our idea of a nation has a suitable scale to match them and bear such a relationship to them in the imagination.
Legal scholars say that additions to land bordering rivers become part of that land, provided they are made by what they call alluvion. This means that the additions occur gradually and imperceptibly, circumstances that help the imagination join them to the land. Suppose a substantial piece is torn from one bank at once and added to another. It does not become the property of the owner of the land it reaches until it joins that land. The trees and plants must also have spread their roots into both. Before then, our thoughts do not sufficiently join the two.
In short, we must always distinguish between the need for separate and stable possession and the rules assigning particular objects to particular people. The first need is obvious, strong, and insurmountable. The particular rules may depend on less important and more trivial forms of public utility, on personal compassion and a reluctance to cause individual hardship, on enacted laws, on precedents and analogies, and on very subtle connections and movements of the imagination.
We may just observe, before we conclude this subject, that after the laws of justice are fixed by views of general utility, the injury, the hardship, the harm, which result to any individual from a violation of them, enter very much into consideration, and are a great source of that universal blame which attends every wrong or iniquity. By the laws of society, this coat, this horse is mine, and OUGHT to remain perpetually in my possession: I reckon on the secure enjoyment of it: by depriving me of it, you disappoint my expectations, and doubly displease me, and offend every bystander. It is a public wrong, so far as the rules of equity are violated: it is a private harm, so far as an individual is injured. And though the second consideration could have no place, were not the former previously established: for otherwise the distinction of MINE and THINE would be unknown in society: yet there is no question but the regard to general good is much enforced by the respect to particular. What injures the community, without hurting any individual, is often more lightly thought of. But where the greatest public wrong is also conjoined with a considerable private one, no wonder the highest disapprobation attends so iniquitous a behaviour.
Before concluding this subject, we may make one observation. The laws of justice are established with a view to the general good. Once they are established, we also give considerable thought to the injury, hardship, and harm their violation causes individuals. This is a major source of the universal blame that follows every wrong or injustice. Under the laws of society, this coat and this horse are mine and OUGHT to remain in my possession permanently. I count on enjoying them securely. By taking them from me, you disappoint my expectations and give me double cause for displeasure, while offending every bystander. Taking them is a public wrong because it violates the rules of fairness. It is a private harm because it injures an individual. The private harm could not be considered unless the public wrong were already established. Without laws of justice, society would not recognize the distinction between MINE and THINE. Yet there is no doubt that concern for individual good greatly strengthens concern for the general good. Harm to the community that hurts no individual is often regarded less seriously. But when the greatest public wrong is combined with considerable private harm, it is no wonder that such unjust behavior meets with the strongest disapproval.