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After reading this article you will learn about the Origin of the Idea of Justice:- 1. The Meaning and Origin of the Idea of Justice 2. Religion as the Origin of the Idea of Justice 3. ‘Nature’ as the Origin of the Idea of Justice 4. Economics as the Origin of the Idea of Justice 5. Ethics as the Origin of the Idea of Justice.
The Meaning and Origin of the Idea of Justice:
The root idea of the word jus, and therefore also of the words justus and justitia, is the idea of joining or fitting, the idea of a bond or tie. Primarily, the joining or fitting implied in this root idea is that between man and man in an organized system of human relations.
But we may also conceive of the ‘just’ and ‘justice’ as connected with, and expressed in, a joining or fitting between value and value in a general sum and synthesis of values. We recognize a number of different values as necessary to an organized system of human relations. There is the value of liberty: there is the value of equality: there is the value of fraternity, or (as it may also be called, and is perhaps better called) co-operation.
All these values are present in any system of law; but they are present in different degrees at different periods of time, and there is a constant process of adjustment and readjustment between their claims. The claims of liberty have to be adjusted to those of equality; and the claims of both have also to be adjusted to those of co-operation.
From this point of view the function of justice may be said to be that of adjusting, joining, or fitting the different political values. Justice is the reconciler and the synthesis of political values: it is their union in an adjusted and integrated whole: it is, in Aristotle’s words, ‘What answers to the whole of goodness . . . being the exercise of goodness as a whole . . . towards one’s neighbour’.
We must presently inquire into each of the values. But before we can do so, it is necessary to inquire into the origin and nature of the general notion of justice—the notion of the ‘first’ or ‘total’ value in which the others are all combined; by which they are all controlled; and in virtue of which their different claims (if and so far as a conflict arises) are reconciled and adjusted.
How do we discover, and from what source do we draw, the total notion of justice—the general and controlling idea of the right and the just—which we feel that the law of the State should express? We acknowledge that justice will justify law to us; we admit that, in virtue of this justification, it finally ties and obliges us to law. But what is the source of its justifying grace and obliging power?
Four different answers may be given to that question. The first is that the source of justice and of its power is religion. The second is that the source is nature. A third is that the source is economics. The fourth is that the source is ethics. We may now proceed to examine each of these answers in turn.
Religion as the Origin of the Idea of Justice:
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The medieval Church held, and the Roman Catholic Church (following the philosophy of the medieval schoolmen) still holds today, that it is God Who gives through His Church the notion , of Justice, or idea of the rule of right, which is the impersonal source of law and the sustainer of the State in its task of declaring and recognizing law. This is plainly expressed in the theory of St. Thomas Aquinas.
God Himself is always acting under an inflexible general rule of right (the lex aeterna) in the order of the universe which He has created and always continues to move.
In addition, He has also expressed (1) a particular rule of right for mankind (the lex divina) in the revelation of the Scriptures, and (2) a more general rule of right for mankind (the lex naturalis) in the disclosure of His own being which He makes continually to the innate faculty of reason implanted by Him in man.
These rules of right which God has expressed are above and behind all man-made law. It follows therefore that positive law (the lex humana)—the law imposed by human authority, and valid because so imposed—must always derive its value, and its final cogency, from conformity with the principles of ‘divine’ and ‘natural’ law. St. Thomas adds to this theory of law a parallel theory of human authority which is calculated to show how this derivation is, or may be, actually achieved.
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Authority, he holds, involves three separate elements, the primordial element of its principium, or foundation; the formal element of its modus, or permanent constitution (monarchical, aristocratic, democratic, or ‘mixed’); and the active element of its exercitium, or actual operation at this or that moment of time by this or that body of persons.
It is the community, or people, that determines the modus: it is the community that confers—as it also controls and may even withdraw in the event of misuse—the exercitium; but it is God Himself who bestows, or we may even say is, the principium. Human authority, in its ultimate foundation, is thus an effluence of the Power of God.
Being of that nature, it will act on the principles of divine and natural law as revealed, or as disclosed to reason, by God; and it will accordingly make the positive law, which it imposes on the members of the community, in conformity with those principles.
None of the Protestant churches—not even the Calvinist— has developed a theory so logical or so comprehensive as that of St. Thomas Aquinas. But again and again they have advanced the claim that religion supplies the standard of justice which should inspire and control the law of the State.
Sometimes they have gone to the length of demanding puritanical legislation, which would translate their own religious convictions into prescriptions of law; sometimes, more modestly, they have sought to formulate the ideal of a ‘Christian order of politics and economics’, which should serve the general community as an expression of social opinion and social aspirations, and should affect and stimulate the development of law along with, and by the side of, other similar expressions.
We may readily admit that so far as religion is a source of ethical principles, and so far as ethical principles are the source of our notion of justice (a question which we have still to consider), religion may be counted as an ultimate source of that notion. But this is not to say that religion is an immediate source, or, even less, to say that it is the one and only source. There are a number of considerations which run counter to any such view.
For one thing, we have to remember that the State includes among its members persons who have no religious belief and do not feel or acknowledge the claims of religion to their allegiance, as well as persons who have such belief and who feel and acknowledge such claims. We need a principle of value behind the law of the State which will embrace and convince both sorts of persons.
For another thing, we have also to remember that religious belief creates churches, and that churches are societies which develop, in the process of time, authorities of their own.
If we make religion the foundation of justice and the origin of the rule of right which the law of the State should express, a Church-authority may claim to decide, in the last resort, whether a given law is based on the foundation of justice and expresses the rule of right; and in that case the State-authority will cease to be the final authority which declares and enforces law for the community.
Something of this sort happened in the hey-day of the medieval Church, when the Papacy claimed, as the final instance of Church-authority, to interpret and enforce an idea of justice derived from God through His revelation in the Scriptures and His disclosure of His Being to the faculty of reason, and when, in the strength of this claim, it sought to challenge the positive law of the State.
Finally, and above all, we have to remember that religious belief issues in the conduct of life by standards which are higher than those of law and involve a quality of behaviour (in charity, for instance, and in chastity and temperance) such as law could not secure even if it made the attempt.
The standards of religion can only be applied in the area of voluntary life which lies outside the State; and the quality of behaviour which they involve can only be achieved if it is sought freely and without any shadow of legal compulsion. If the State attempts to draw religious standards and the quality of behaviour which they involve, into the area of the legal association, and to enforce them as the prescriptions and by the sanctions of law, it simply fails.
It may even encourage what it seeks to prevent: it may encourage, for instance, the appetite for alcohol by prohibiting its manufacture, sale, and transport. Nor is this all. By making laws which cannot be enforced, it may foster disobedience to other laws which, if they stood alone, could be, and would be, enforced without any question.
‘Nature’ as the Origin of the Idea of Justice:
When ‘nature’ is adduced as the origin of the idea of justice, the suggestion is that law has value, or may be made to have value, by being in accordance, or by being brought into accordance, with la nature des choses, or the natural order of things. But what is this natural order? It is not the natural order investigated by the physicist: man is not inanimate matter.
Nor is it the natural order investigated by the biologist, though the biologist includes man in his studies along with the rest of the animal world. The natural order of the biologist is an order consisting in the selection of the fittest achieved by the way of struggle and survival: it is a uniformity, or a series of uniformities, observed in the animal world; and it cannot be argued that human law will be the better for squaring with any such uniformity or series of uniformities, or that it can ever be held, on that ground, to be the expression of justice.
It may be right that the positive law of a human society should include eugenic prescriptions, which encourage the survival of ‘good’ elements and discourage the survival of ‘bad’; but such prescriptions will not be right for a human society because they square with a uniform rule, selecting the ‘fit’ and rejecting the ‘unfit’, which runs through the history of happenings in the animal world.
The ‘good’ is not the same as the ‘fit’; and a rule of happenings among animal groups cannot be the source, or the justification, of a rule of conduct in a human society. In any case the idea of nature, and of a natural order of things, as a source of justice, is an idea for older than any development of modern natural science. It is at least as old as the Stoics, and it goes back as far as the end of the fourth century B.C. or even farther.
The Stoic conception of nature, which was transmitted to the Roman jurists and eventually to the Christian Fathers, is a conception belonging to a mixed world of religious belief and moral philosophy.
The word ‘nature’, as it was used in legal and political speculation from the age of the Stoic Zeno to the age of the school of Rousseau, was the keyword of a religious-ethical conception of what should be in the spiritual world, rather than a term of art denoting what actually was in the material world of substance and the flesh.
It is true that the Stoics pursued the study of cosmology rather than that of pure theology: it is true that they regarded the Godhead itself as a fiery ether or form of matter, pervading and going through all things, in virtue of its fineness, but none the less material. But though Stoicism had a material basis, it was still a spiritual creed.
What the Stoics understood by ‘Nature’ was ‘that ruling principle in the Universe which was Reason and God’. The ‘Nature’ identified with God and Reason might, indeed, be a subtle form of matter, but it was none the less a ‘ruling principle’: an imperative of, or consisting in, the Reason which man shared with God.
The Stoic canon of living ‘in agreement with nature’ was, therefore, fundamentally a canon of living ‘according to the norm which man ought to realize’. We may even say, in a paradox, that Nature was man’s art: it was man’s conception, achieved in the course of a conscious effort to fit himself into the Universe, of an ideal by which he could judge the mere given facts of his life in the past, and by which he could shape his life for the future into its rational, God-intended, ‘natural’ form.
Nature thus supplied the Stoics not only, or mainly, with a view of the order of things in the material world, but also with a creed of the spiritual order of the human world, as seen in its relation to God and in the light of His all-pervading Reason. The creed, in the form in which it was developed by Zeno and his successors, was built on a single premiss, and issued in three conclusions.
The premiss was that men, in their essential constitution and nature, were rational beings who were each divinae particula aurae (a ‘fragment’, as they said, or detached part of the cosmic reason), and who all together shared, if only as such ‘particles’, in the all-pervading Reason which was the constitution and nature of God.
The first conclusion drawn from this premiss was that men, being rational in their nature, should all be regarded as free and self-governing in their actions. This was the conclusion of Liberty; and Stoicism was thus the philosophy which nerved the opponents of tyranny.
The second conclusion was that man, being all in their nature rational (though some were wiser than others, and there was a distinction between the sapiens and the stultus), should all be regarded as equal in status. This was the conclusion of Equality: natura omnes homines aequales sunt; and Stoicism was thus an influence which made for the amelioration, if not the abolition, of slavery.
The third conclusion was that men, being united to one another by the common factor of reason, should all be linked together in the solidarity of a world-society—a single ‘city of Zeus’—under the control of a common law in conformity with their common nature. This was the conclusion of Fraternity; and this, in the old Greek world of multitudinous city-states and multitudinous civic laws, was the most revolutionary of the three.
The Stoic premiss and its three conclusions formed a current of thought which has flowed for 2,000 years or more, through ancient Rome and the middle Ages, through the Age of Enlightenment and the French Revolution, and is still flowing in our own age. This current of thought carries in its course an idea of justice, professing and claiming to be drawn from nature, which is a synthesis of the three values of liberty, equality, and fraternity.
The one question which arises here, in connexion with the course of the argument, is that of the source from which this idea of justice is actually drawn.
The conception of nature on which it rests is not a conception of physical nature (though, as we have seen, there was a physical element in the philosophy of Zeno): it is a conception of the spiritual nature of God and man; or, more exactly, it may be said to be a religious or theological conception of the nature of God, and a corresponding ethical conception of the nature of man.
Nature is not, in this context, a source of justice which is distinct from religion and from ethics: it is rather a combination and fusion of religion and ethics. In the Stoic theory of natural law, as in the theory held by the Christian Fathers and proclaimed by the schoolmen of the middle Ages and the Jesuit thinkers of the Counter-Reformation, both of these sources are present.
In the theory of the secular school of natural law, during the seventeenth and eighteenth centuries, the religious element loses its power, and the ethical element is predominant.
When that school, therefore, appeals to nature as the source of justice, its real appeal is to a code of ethics conceived as proceeding purely and solely from human reason and as rationally calculated to promote the sum of human happiness. Blackstone, indeed, is prepared to identify ethics and natural law: the rational pursuit of happiness, in his view, ‘is the foundation of what we call ethics or “natural law”.
The course of the argument has gone to show that the conception of nature is not a separate and original source of the idea of justice, but a source which is linked with and derived from religious belief and moral philosophy.
There was, however, a twist or skew of the conception of nature which made it appear a separate and original source of the idea of justice. ‘Nature’ was sometimes supposed to denote an historic fact: the actual condition of man in the golden innocence of his prime. Men spoke of a ‘state of nature’, and imagined that state as an age of the reign of a pure law of nature.
This is a modern twist, which was unknown to the Stoics and foreign to the ideas of the Roman jurisconsults who followed the Stoics. Perhaps the twist was partly due to what may be called a verbal cause.
Words, are not only instruments of thought but also influences upon it; and the Latin word natura, when it was used to translate the Greek physic, carried with it associations of original birth and a primitive condition which were foreign to the Greek, and which, as they grew in force, made ‘nature’ a happy infancy and the ‘law of nature’ a law of early innocence.
Partly, again, the twist may also have been encouraged by Christian ideas of Eden and the state of primitive grace which preceded the fall of man. In any case, and whatever its cause, the twist meant the slewing round of an idea proposed for man’s future into a supposed condition of his past, with the added suggestion that the supposed condition of the past ought to be recovered and restored. (Men like to depict their revolutions and ventures into the future as restorations of an idealized past; and Paine, for instance, in advocating the Rights of Man, readily appeals to the time when man came with his rights from ‘the hand of his Maker’.)
If nature is thus made a fact of the past, it may be held to be a separate and independent source, an historical source, of the idea of justice. But this historical source is only an imagined source, since the fact of the past is only an imagined fact; and even if it were an actual fact at an actual point of time, no single fact or point of time in the process of secular human history can be an ideal, or the source of an ideal, though the whole of the facts of history, and all its succession of points of time, may help to suggest an ideal towards which the process is moving.
Economics as the Origin of the Idea of Justice:
With the development of modern industry, which began on the Continent in the nineteenth century, the theory began to be advanced, first by French and German thinkers, and then, from Bakunin onwards, by Russian thinkers and revolutionaries, that the origin of the idea of justice could and should be discovered in the area of economics.
Upon this theory the idea of justice is derived from the facts, or deduced from the principles, of economics. In the theory of Marx, which is a fatalistic theory of the dominance of matter and the material conditions of man’s economic activity, the idea is simply derived from the facts: indeed it can hardly be called an idea, and it is rather a fate imposed by the facts.
The positive law of the State, in any given conjuncture of economic conditions, is imposed on its members by the personal authority of the class which is dominant under those conditions; and the impersonal source of the law is similarly the inevitable imperative imposed upon that class by its own economic interest in the given conjuncture.
When the given conjuncture of conditions is a system of capitalistic production, the bourgeois class is dominant, and the bourgeois class, itself determined by the system, determines the law in a sense corresponding to its interest.
When the mutations of matter produce a different conjuncture, and issue in a system of socialized production, controlled by the workers themselves, the proletariate or working class is dominant in its turn, and that class determines the law, as the bourgeois class did before, under the compulsion of its own system and for the promotion of its own interest.
As long as there is a State and as long as there is law, the law of the State will be made in the interest of the strong, and the source of the notion of justice (if indeed we can speak of such a notion, or of any notion at all, in the Marxian world of material forces) will be the fact of economic strength, moving and acting as it must.
Only when the State itself disappears, and when law disappears with the State, can a form of society be attained which is common and equal for all, and involves no subjection of class to class. That form of society is communism—communism in its purity—communism at its highest. But that society will be non-political and non-legal; and being without law it will be informed by a disembodied spirit of justice.
That spirit has no economic origin, but consists in a sense of ‘the elementary rules of social life, known for centuries, repeated for thousands of years in all sermons’, and at the long last spontaneously obeyed as men ‘become accustomed to their observance without force’.
This is the evocation of a dens ex machina, dormant hitherto though known for centuries, and inoperative hitherto although repeated for millennia from the pulpits.
It follows that after all there is, and has been for centuries and millennia, a notion of justice based on something—whatever that something may be—other than economic strength. But this notion has never been a source of law in the past; and it will not be a source of law in the future, because the future will be without law. Its foundation remains in mist; and it is only mist itself.
The theory of Proudhon and his successors follows a very different line from that of Marx and the successors of Marx. Proudhon, it is true, drew the notion of justice from an economic source: he preached, the priority of droit economique. But he did not, like Marx, derive his notion of justice from economic facts: he deduced it from economic principles, and primarily from the great principle of mutualite.
The general conclusions which may be drawn from this principle; and the general tendency of French syndicalism, basing its theory upon the principle, to think in terms not of warring and colliding classes, but of occupational groups complementary to one another and knit together by mutual need and the bond of mutual service.
Upon this basis the notion of justice drawn from the source of economics will be a notion based on the interest not of a class of society but of the whole of society and of all its complementary groups. The legal philosophy of Duguit may be cited as an example of such a notion of justice, and of the general view of the State and its law to which that notion leads.
Duguit assumes that a national society must primarily be regarded as an economic society, and studied accordingly in the light of its economic structure and economic activities. The basic fact of such a society is the existence of different occupational groups, producing different things, but bound to one another by mutual need of one another’s products and by a consequent system of mutual exchange.
The essential principle is therefore solidarity—a term which takes the place of Proudhon’s mutuality Solidarity has two forms. The first form is the mechanical, which is based on similarity; and here the members of one and the same group use similar capacities in order to produce in cooperation a considerably greater product than they could produce in isolation.
The second form is the organic, which is based on difference; and here the members of different groups use different capacities, on a system of division of labour which entails still greater co-operation, in order to produce a vastly greater product than could otherwise be produced. It follows that the maximum of production—which is the essential aim of the society, because it brings the maximum of consumption and the maximum of enjoyment—entails the maximum of co-operation.
This maximum of co-operation involves and supplies the principle of solidarity; and this principle of solidarity furnishes in turn the notion of justice, the notion of what is right in itself, the notion of value, which is the impersonal source of law. The name which Duguit gives to this notion is that of regle de droit.
This regle de droit is a conception similar to Proudhon’s droit economique; and it issues for Duguit in two imperatives, one negative and the other positive: (1) Do nothing contrary to the principle of solidarity; (2) Co-operate as far as possible in the realization of that principle.
In developing his theory Duguit proceeds to attach so great a measure of importance to the impersonal source of law, and to the need of law being inherently right in virtue of its accordance with la regle de droit, that he almost seems to obliterate any personal source.
It is the value inherent in law, rather than the validity stamped upon it by a declaratory authority, which is his concern. He may even be said to deny the existence of any real authority, and, with it, the existence of any real validity of the law declared by so-called authority.
True, there are persons called governors (gouvernants); but they only exist de facto and they are not competent de jure to promulgate binding rules. They are indeed facts, but they are only facts of force; they issue pronouncements or commands, but those pronouncements are in themselves no more than the dictates of force, and they only acquire validity, or impose any obligation other than that of force majeure, when they square with ‘the rule of right’ deduced from solidarity.
It follows that the governors (a term which includes all holders of political authority in any of its forms, including the members of legislatures) must be brought under ‘the rule of right’, and made subject to its control, if their acts and pronouncements are to possess any real validity and to impose any true obligation. Indeed they must be doubly brought under the rule of right, by being made subject to both of the imperatives in which it issues.
Under the first imperative, ‘Do nothing contrary to the principle of solidarity’, any rule which they make and seek to enforce in contravention of that principle, being ex hypothesis invalid, must be made inoperative by the process of judicial disallowance, or, failing that, by the process of general social negation in the ascending stages of passive, defensive, and aggressive resistance.
Under the second imperative, ‘Co-operate as far as possible in the realization of the principle of solidarity’, which is interpreted as commanding the governors to provide public assistance for the destitute, education for the ignorant, and work for the unemployed, any failure on their part to make such provision and to render the service due, being ex hypothesis a neglect of duty, must equally be remedied by judicial redress or corrected by the process of social agitation and social pressure.
In the upshot of his argument Duguit not only seeks to make economics, and its principle of solidarity, the one impersonal source of law; he also seeks to make it the one and only source; and he eliminates, in effect, the personal source consisting in a human authority.
The elimination, indeed, is not complete: authority remains as an obstinate fact of power, however illegitimate its acts and its pronouncements may be; and though it is confronted by a higher regle de droit, drawn from a sovereign principle of solidarity, we can hardly be sure that the fact of power will obey the rule of right, even when the rule is backed by judicial action and supported by social pressure.
The weakness of Duguit’s theory, at this point, is perhaps not so much that it tends to eliminate human authority as a source of law, as that it tends to leave a powerful but possibly (or even probably) illegitimate human authority confronting a wholly legitimate but possibly powerless rule of right. But it is not this weakness or dualism of Duguit’s theory with which we are here concerned.
The question for us is not that of the relation of the governors to a rule of right founded on economics; it is the prior question of the relation between the rule of right itself and the principle of economics from which Duguit supposes it to be drawn. Is economics, or a principle of economics, or the sum of the principles of economics, the primary basis and origin of the notion of justice?
In seeking to answer that question we may be wise to begin by a summary view of the influence which economics has actually exerted, during the course of history, on the making of ordinary positive law. If economics has largely influenced, through the ages, the making of ordinary positive law, this will be a presumption in favour of turning to economics in order to discover a basis and origin for the idea of justice.
Is there any such presumption? The evidence of the past would appear to suggest that law has determined the order of economics even more than it has itself been determined by that order.
If economic factors and economic interests have partly determined the legal system of order and the legal framework of rules, it is even more true that law has furnished the whole general system of order, and the whole general framework of rules, within which, and under which, the factors and interests of economics have had to work. Positive law is a general scheme, which covers, many fields of life besides the economic.
The lawyers and legislators who have built that scheme have no doubt been influenced, at some periods and in some parts of their building, by economic interests, but the whole scheme has been built for the simple general purpose of tidying human relations and making them ship-shape and sensible; and the shaping force of this purpose has reached out into economics.
Even a rule which has originally been made under the influence of some special economic interest may come to be absorbed, in the process of time, by the shaping force of the general purpose, and may be used to protect quite other and very different interests.
The English rule or method of trust is an example. Designed originally to protect the position and property of daughters and younger sons of the upper classes, it has been shaped into a system protecting free churches and trade unions, and made to serve, in Maitland’s words, as ‘the most powerful instrument of social experimentation’.
If that is the relation of economics to positive law, we may fairly expect something similar to be true of the relation of economics to the idea of justice, and we may refuse to believe that economic principles can ever be the source (though they may be a contributory source) of our idea of what is inherently right. Take, for example, Duguit’s principle of solidarity.
It is, to begin with, an observation based on an economic fact—the fact that men increasingly co-operate as they increase production. The observation is turned into a principle: men ought to co-operate more and more in order to increase production still further; and that principle then becomes the source of the regle de droit. But even in the realm of economic facts solidarity is not the only thing.
There are other things which also serve to increase production: there is, for instance, inventive skill, leading to the discovery of new and more fruitful methods of manufacture: there is also managerial ability, leading to the discovery of new and more effective ways of arranging co-operation; and both of these things suggest that individual initiative matters as well, and may even matter as much, as social solidarity, and that it too may turn into a principle which is a source of the rule of right.
Solidarity, we begin to see, cannot be the whole source of our notion of justice: taken by itself, and in itself, it cannot produce or explain the notion. A beehive has solidarity; but just because it has only the one factor of solidarity, it lacks some other factors—such as liberty of personal development—which human beings have always considered essential to the notion of justice.
Solidarity may be one value in the system of values which we call by the name of justice; and giving it the name of fraternity as the thinkers of 1789 did, we may place it accordingly by the side of liberte and egalite. But whatever name we give it, it is not the whole of the system.
The economic fact of solidarity, even when it is turned into a principle and regarded as a value, needs the complement of other values. It also needs, along with them and in common with them, some principle of unity and reconciliation which creates a system, gives each of the values its place in the system, and causes and explains their inclusion.
Ethics as the Origin of the Idea of Justice:
Can we find this principle in ethics? If we answer in the affirmative, the moral standard of the community, precipitated in and enforced by the general moral conscience, will be the source of a notion of justice, containing a system or synthesis of values, which will be in its turn the impersonal source of positive law.
We shall accordingly hold that if law is to have value as well as validity—value all round, and not some single ‘broken arc’ of value called by the name of ‘solidarity’ or by some other such name—it must satisfy, in the last resort, the demands of the general moral conscience, issuing and expressed in a general all- round notion of what is just and right in the conduct of human relations.
In order that law may be valid, it is enough that it should satisfy the canon of declaration, recognition, and enforcement by a constituted authority acting on behalf of the community. In order that it may have value, over and above validity, law must also satisfy—as much as it can, and so far as its strength avails—the canon of conformity to the demands of moral conscience as expressed in the general notion of justice.
In other words, and in simpler terms, law will have value only if it expresses and realizes—so far as it can and in such ways as it can—a rule of right for human relations ultimately derived from ethics.
Here we touch a difficulty, which the provisos already stated are meant to meet in advance. Law is not ethics; and legality, or obedience to law, is not the same as morality. Law is concerned with external acts, and its demands are satisfied by such acts because they are all that its sanctions, themselves external acts of physical compulsion, can possibly secure.
Ethics is concerned not only with external acts, but also with internal motive: its essence, as Aristotle said, is ‘a state of character, concerned with choice’, which is freely determined in its choice by its own internal motive; and the demands of ethics are not satisfied unless an internal motive is present as well as an external act.
An act is legal, whatever its motive, so long as it is the act demanded by the law. An act is not moral, whatever its outward show may be, if it is not inspired by an internal motive and does not proceed from a ‘state of a character concerned with choice’. But though we must draw a distinction between the nature of ethics and the nature of law, it does not follow that such a distinction abolishes any relation.
Law and ethics are both concerned with what should be, and they both speak in the imperative mood: they both deal, in the main, with identical areas of life—marriage and its sanctities, the keeping of faith and the honoring of pledges, the duty of consideration for others, and man’s general duty to his neighbour. How shall we express their relation? We may attempt two alternative methods of expression, and seek to discover which of the two expresses the relation best.
The first method of expression is based on the fact that law is a uniform rule of action binding on all men alike. Men in general run through the whole gamut of the moral scale: some act on this, and some on that standard: one standard is lower, and another higher. What law does, it may be argued, is to establish a moral minimum which every-man must attain.
It establishes, as it were, a lowest common measure of conduct which all can compass and which can therefore be made a uniform rule of action for all. If law bids me attach and keep burning a rear light on my bicycle when I am riding it in the dark, that is a lowest common measure of consideration for others, and it may, as such, be legally imposed.
If law proceeds to fine me for riding without a rear light, it stimulates me into a disposition to obey the moral minimum—a disposition which itself is not moral (even though it results in obedience to the- moral rule of consideration for others) because it is based on the negative and non-moral factor of force, and not on the positive and moral factor of an inward motive of spontaneous consideration. Law, when it is so considered, may be regarded as a schoolmaster to bring us to morality, through the enforcement of habits of action by the use of coercive discipline.
But there is an obvious objection to this view of law. A moral minimum, enforced by non-moral means, may have some relation to ethics; but it is not a relation which can stand the test of scrutiny, or prove itself to be anything more than a superficial relation.
If law is connected with ethics in the sense that it is meant to enforce the rules of ethics on some sort of common standard, ought not the standard initially to be something higher than a mere minimum, and ought we not to be constantly engaged in screwing the strings tighter and tighter, in order to produce a fuller and truer note? And, even more, ought not the standard, whatever its pitch, to be enforced by means, such as reformatory punishment and moral education, which will themselves have a moral quality because they tend to promote a moral disposition?
These questions suggest that if once we adopt the idea that law is a moral minimum, we shall soon be led to seek to obliterate any distinction between law and ethics, and to substitute law for ethics, with the result of eliminating ethics.
We may therefore turn to another method of expressing the relation between law and ethics. This second method, like the first, is based on the fact that law deals only with men in the mass, and is in its nature no more than a uniform rule of action binding equally on all alike. But the corollary which we now draw from that fact is that the only thing which law can get from man in the mass is external conduct, because the only thing which it can apply to men in the mass is external force.
From this point of view, and bearing in mind the word ‘external’, we arrive at another method of expressing the relation between law and ethics. We conclude that law is related to ethics in the sense that it seeks to secure the set of external conditions necessary for moral action, or the general framework of external order in which the moral conscience can act and determine itself most easily and most freely.
Law, from this point of view, is not the lowest common measure of ethics, or the lowest story in the house of ethics: it is rather the best and highest set of conditions, set round the house and forming, as it were, a fence for its protection, which has to be assembled, and firmly established, before moral action can find a free space for its play and in order that moral development may unfold its energies freely.
All moral development is inevitably confronted by external obstacles or hindrances: it is the function of law ‘to remove the obstacles’ or ‘hinder the hindrances’.
The law relating to education, as it has been gradually assembled and established in England since 1870, may be cited as an example. Moral development requires—the more as the world grows older, fuller of accumulated knowledge, and fuller, too, of complications alike in the social structure and the material environment of life—a period of initiation in the fund of accumulated knowledge, and a period of introduction to all the complications of structure and environment. This initiation and introduction is what we call education. But the process of education is confronted by possible obstacles.
The State has sought by means of its law to remove those obstacles progressively. First, there is the obstacle that there may not be schools enough to provide education for all. The State, which had already been acting, through the law of the budget, to aid the establishment of voluntary schools, proceeded in 1870 to establish by law an additional and general system of schools provided entirely from its own funds.
Next, there is the obstacle that parents may not be willing, if the matter is left to their choice, to send their children to school. The State, which had already enacted in 1870 that the ‘school boards’ charged with the establishment of schools might, if they wished, make attendance at schools compulsory in their area, proceeded by a law of 1880 to make attendance compulsory everywhere up to a given age.
Here we may say, from one point of view (the point of view of the parents), that the law established a moral minimum, by making it the legal duty of parents to do for their children, for a prescribed period, what parents are morally bound to do as long as they possibly can; but from another point of view (the point of view of the children), which is the essence of the matter, we have to say that the law removed an obstacle, and hindered a hindrance, by clearing away from their path a hurdle which would have impeded, or even blocked, their development.
Finally, there is the obstacle that parents may not have the means to pay for their children’s education, even though they are under compulsion to send their children to school. The State, which had already enacted in 1870 that ‘school boards’ might remit fees in cases of poverty, proceeded in 1891 to make remission of fees the general rule, and thus to make the compulsory period of education free and gratuitous as well as compulsory.
In effect, it pooled the payment of fees among all the members of the community; it removed the obstacle to a child’s development arising from his parents’ want of means by making it the legal duty of all to provide the means.
In the whole of this process the driving force and the ultimate purpose is thus the growth of the child, during and through a preliminary period of initiation and introduction, into the stature of a free and responsible moral agent. But if that is the ultimate purpose which is served by law, the fact remains that law serves the purpose only by removing obstacles, and only by securing, in virtue of such removal, the presence of the external conditions which make development possible.
The development itself must proceed from within; it must be self-moved and spontaneous; otherwise it will not be moral development. We may thus say of education, when we consider it in its essence as a process of moral development in which teachers and children co-operate, that it lies outside the law and is free from the arm of the State.
It is not the business of law, or of any legal authority, to control the inner life of the process of education. It is only the business of law, and of any legal authority (even if it be called an education authority), to secure the external conditions of a process which, in itself, is necessarily independent of law and legal authority.
It follows from the course of the argument that if we have to choose between two conceptions of law—the conception which makes the purpose of law consist in the provision of a moral minimum, and the conception which makes it consist in the maximum provision of the external conditions which make moral development possible—we are bound to choose the second, and we are bound to choose it for the simple reason that it connects law and ethics more intimately, and more truly, than the first can ever do.
Law which is conceived as a moral minimum suffers itself from being viewed as a minimum; and it makes morality suffer, by appearing to provide in its place a sort of low-grade substitute. Law which is conceived as the maximum provision of the external conditions of morality gains itself by being viewed as a maximum; and it also makes morality gain because it opens a freer field for its exercise, making it able to do its own work with less hindrance and fewer obstacles.
It may even be said, in a paradox, that we connect law and ethics the more closely, the more clearly we distinguish their provinces. We separate them clearly if we define the one as the province of voluntary self-determination, with innumerable springs of individual initiative, and the other as the province of obligatory action, governed by uniform rules flowing in their set channels from a single central source.
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But we also connect the provinces which we have begun by distinguishing, and we connect them closely and intimately, if we add that it is the business of the province of law to defend and extend the province of morality —to defend it, in the present, by providing the conditions now demanded for its free play; to extend it, for the future, by increasing the provision of those conditions as new demands arise both from the development of social structure and from changes of material environment. To stand outside in self- restraint, and yet to defend with power—to be separate and yet connected—such is the relation of law to morality.
On this basis the law of the State will be careful not to diminish the area of moral autonomy in the process of extending the area of legal automatism. If the State attempts to increase the area of the compulsory action—the area of law and coercion —by bringing into it actions which might have been safely left to voluntary self-determination, it is offending against the nature of law and the true relation of law to morality.
It is indeed a safe rule for the State that it should always command and enforce by law any act which ought so much to be done that it had better be done under coercion than not be done at all; but it is equally a safe rule for the State that it should not, in seeking to secure the conditions of goodness, diminish the area of goodness itself.
On the contrary, an increase of compulsion at one point should always result in a more than proportionate increase of freedom at others; for an increase of freedom which was merely equivalent to the loss involved by the change would merely leave things as they were, and afford no justification for the change which was being made. The law of education may once more be cited in evidence.
A law which makes the attendance of children at school compulsory brings their parents, in that respect, into the area of legal coercion, and diminishes, to that extent, the area of free goodness; but the education of the child is so vitally important a condition of his own moral development, and the total area of free goodness may be so much extended by the compulsory provision of the condition, that the price may safely be paid.