After reading this article you will learn about:- 1. The Nature of Rights, and the Principles of their Allocation to Persons 2. The Principle of Liberty 3. The Principle of Equality 4. The Principle of Fraternity 5. The Final Principle of Justice.
The Nature of Rights, and the Principles of their Allocation to Persons:
The argument of the previous section has led to the conclusion that the development of the capacities of personality in its members is the ultimate purpose served by the State and the final political value.
It has also, and pari passu, led to the further conclusion that the law of the State is right, and possesses the quality of rightness or justice, in virtue of securing and guaranteeing, to the greatest possible number of persons, the external conditions necessary for the greatest possible development of the capacities of personality.
These secured and guaranteed conditions are called by the name of rights. When it has framed a scheme of such rights, and proceeds to determine the distribution of the rights contained in the scheme, the State will act by general principles, which are generally and evenly applicable. Those principles have been called, since 1789, by the names of Liberty, Equality, and Fraternity.
They were not, of course, an invention of the year 1789. They are as old as the Stoics, and as old as the State itself, however imperfectly they were applied for generation on generation. But the formula to which they were reduced in 1789 has now become their classic expression.
Two questions here arise for discussion. The first is that of the general nature of rights, and of the relation in which they stand both to their receivers and to their giver—if indeed the terms ‘receiving’ and ‘giving’ can properly be applied, and if we can rightly speak of the State and its law as giving or of its members as receiving. The second question is that of the general nature of the principles on which the State and its law proceed in determining the distribution of rights.
Rights in their nature are the result, and the embodiment in particular persons, of the general system of Right or Justice on which the State and its law are based rights, are parts and portions of jus, or Right, as distributed among, embodied in, and enjoyed by persons.
I cannot have rights, in any sense of the term, apart from the notion of Right, and I cannot have secured and guaranteed rights, in the legal sense of the term, apart from the law which is based (though it may be imperfectly based) upon the notion of Right. My rights in general are my part and portion of a whole system of Right, as expressed and embodied in my particular person; and they cannot exist apart from the whole of which they are part and portion.
Any particular right which I have is a capacity of enjoying some particular status, or employing some particular power of action, which has been secured and guaranteed to me by law, and has been so secured and guaranteed because it is my share, in this particular respect, of the general system of Right or Justice recognized and enforced as law by the State.
The sum of my rights is the whole of my capacity—my whole status and whole power of action—within the State and under its law: it is my general and total persona, or legal personality; it is my general position in the system of Right (in so far as that system is recognized by the State), and the whole of my share in that system.
We may therefore say that each individual is vested by law and the legal association to which he belongs with a legal persona or sum total of rights. We have then to add that he is so vested on two complementary grounds, the one immediate and the other ultimate.
The immediate ground is that this sum total of rights is the expression for him, and in his case, of the system of Right on which the legal association is based. The ultimate ground is that this sum total of rights is the condition for him, and equally for all his fellows, of achieving the end which inspires and determines the whole of the system of Right—the end which consists in highest possible development of the capacities of personality, in the fullest sense of that term.
Putting these two grounds together, we may say that our rights, which in their sum are our legal personality, are secured to us by law, and vested in us by law, because they are the conditions of the development of our moral personality.
I am given a persona or legal mask (we may say in a paradox) in order to be my true moral self and show my true moral features. I am vested with a legal personality because I have, and in order that I may develop, a moral personality. But though we may put together the two grounds on which my possession of rights is based, and treat them as mutual complements, there remains a distinction between them; and this distinction may produce a divergence and result in a conflict between two different conceptions of rights.
On the one hand, I should not possess the complex of rights which is my legal personality unless I had a moral personality which is its ultimate source and cause. In that sense the origin of my rights is something in me, and my rights flow from the inherent fact of my own moral personality.
If we stop at this point, we shall say that rights are ‘natural’ or ‘human’, meaning by the adjectives which we use that they come from the nature of man, in his own intrinsic being. (But even so, and even if rights are described as ‘natural’ or ‘human’, they cannot be conceived apart from a common human notion of Right, of which they are parts or portions embodied and expressed in each claimant.) We cannot, however, stop at this point.
There is another side of the matter; and I should not possess the sum total of rights which is my legal personality unless it were vested in me by the State, which assigns it to me as the part which I play, and the persona which I sustain, in its ‘drama’ or scheme of legal action.
In that sense the origin of my rights is something outside me, or at any rate something broader than I am (though I am a member, and an active member, of its being); and my rights flow from something more than my own personal nature in its own intrinsic being. This is simply to say that the State is the immediate source of rights, and that rights, in any full sense of the word, without adjective or qualification, are never rights unless they proceed immediately from that source.
Ideally a right will always be derived simultaneously from two sources, and will possess a double quality:
(1) The source of individual personality, and the quality of being a condition of its development;
(2) The source of the State and its law, and the quality of being secured and guaranteed by the action of that law. But in actual life we may find a sort of right, or a ‘quasi-right’, which is derived from one source only, and possesses only one quality.
We may have a quasi-right which has only the source of individual personality and the quality of being a condition of its development, such as the right of a slave to personal liberty in a slave- owning State; and equally, and conversely, we may have a quasi-right which has only the source of the State and its law and the quality of being secured and guaranteed by the action of that law, such as the right of a slave-owner in a slave-owning State to the enjoyment of property in persons. All that we can say of such cases is that no actual State is ideal.
There may be legal rights, legally valid, which ought not to be rights under the notion of Right which the nation in general (or, we may even say, mankind in general) has come to entertain; and conversely what ought to be rights under and in virtue of that notion may be denied by the law and have no legal existence. There will always be a gulf between the notion of Right and the prescriptions of law.
From the general nature of rights, and the relation in which they stand to the State and the individual, we may now turn to consider the principles of their distribution. These principles may be called, if we use an Aristotelian term, the principles of distributive justice. They are the procedural rules which justice requires that law should follow in allocating and distributing rights among the members of the State.
If justice be regarded (as it has been in the previous argument) as an order of society directed to the end of fostering and encouraging the highest possible development of all the capacities of personality in all its members, these procedural rules required by justice will be rules which follow from that order and are dictated by that end; and they will thus be ultimately derived from the ultimate value of personality and the development of its capacities.
Again, if justice be regarded (as it has been in the previous argument) as the primary social and political value— though grounded itself on the ultimate moral value of personality and the development of its capacities—then the procedural rules required by justice may be considered as the secondary social and political values, and we may say, ‘First Justice, and then the rules of Liberty, Equality, and Fraternity which follow on, and from, Justice’.
The procedural rule or principle of Liberty is in itself the simplest of the three, even though its application (as we shall have reason to note) is a matter of difficulty and complications. The principle means that the State treats each and every moral person as a free agent, capable of developing his own capacities in his own way, and therefore capable of enjoying and exercising the rights which are the conditions of such development.
Accordingly it vests each person—each and every person who has reached what we call the age of discretion—with a recognized power of thinking and acting for himself, at his own discretion, and therefore on his own responsibility, in respect of the enjoyment and exercise of rights.
Each person thus comes under, and all are covered by, a procedural rule of liberty which is also, at the same time, a rule of responsibility; for liberty is always also responsibility, and to be free to act is also to be responsible for action. Each person, again, comes under this rule, and all are covered by this rule, so far as concerns the enjoyment by each of rights—which is the same as to say, so far as concerns his enjoyment of his part or portion of the general system of Right recognized and enforced as law by the State.
For not only is it true that liberty is also responsibility. It is also true that liberty is also, in its measure, legality; since the liberty of each is his legally recognized power of enjoying the rights which are his part and portion of law.
The procedural rule or principle of Equality means that the State treats all legal persons as equal in its presence or, as we say, ‘in the eye of the law’. It will not assign higher and lower grades of legal personality. One moral personality matters as much as another; and the assignation of legal personality, which follows from and is based on the fact of moral personality, will reflect the fact on which it is based.
Our Old English forefathers held that ‘people and law went by ranks’: today we recognize (though perhaps imperfectly even yet) that people and law must always go by the rule of equality. But this legal equality is by its nature something different from general or absolute equality. It is a legal equality of legal persons within the State.
Outside the State, and outside the area of legal persons that is to say, in the social or extra-legal sphere there may still exist much inequality, alike in personal capacity, in social status, and in economic resources.
How far the State can tolerate some of this inequality in the social or extra-legal sphere, and more especially how far it can tolerate inequality of economic resources, without offending against its own principle of the equality of legal persons within itself and in its own sphere, is a grave question of our times which leads to a clash of conflicting arguments.
It is true, on the one hand, that the rule of Equality, as recognized and applied by the State, means equality only within the State, and therefore only with respect to the standing of legal persons in and under its scheme.
It does not involve or mean equality in the social or extra-legal sphere: it is legal, and not social, equality; it is equality in terms of capacity for the enjoyment and exercise of rights, but not in terms of capacity for the enjoyment and exercise of all the multitudinous forms of social activity.
On the other hand, it is also true that effective legal equality demands some measure of social equality. The State guarantees men equal rights in its polling-booths and its courts of law.
But can those rights be effectively enjoyed on equal terms unless personal capacity is made more equal by an open system of State education; unless economic resources are made more equal by a further system of State regulation of the general national income; and unless general social position, so far as it depends on personal capacity and economic resources, is made more equal in and by the process of creating greater equality both in capacity and in resources?
Yet more equality, in all these respects, is not the same as total equality; and any increase of equality in all these respects— personal capacity, economic resources, and social position—is only a means, and can be enforced by the State only in so far as it is a means, to the securing of effective legal equality.
The increase (for example) of equality in respect of economic resources is not an end in itself, but a means to effective legal equality; and the amount of the increase imposed by the State, in the act of determining by how much resources are to be made more equal, will accordingly depend on the end which it is intended to serve.
The principle of Fraternity is a more difficult matter than the principles of Liberty and Equality. We may seek to formulate it by saying that the legal association, besides treating each individual member as a free agent in its scheme of law and an equal factor in the operation of that scheme, will also follow a third principle in distributing among its members the various rights which are the conditions of their personal development.
This is the principle of providing for all and distributing among all the common equipment, material and mental (ranging from roads and sewers to libraries and museums) which is needed by all as the common background and common basis of their individual lives. All of us individually need liberty and equality for ourselves; all of us need collectively a common equipment for our common benefit.
The usage of revolutionary France has given the name of Fraternity to the principle which leads to the distribution of this common equipment for common enjoyment. Fraternity in its strict sense is an emotion rather than a principle, and in that sense it cannot be said to be in pari materia with the principles of liberty and equality.
But it is a term which has been traditionally used in a broader sense, and it may perhaps be used provisionally to designate a principle, governing the distribution of rights, which might also be called by the name of ‘co-operation’ or ‘solidarity’.
The liberty of each individual as a free legal agent; the equality of each as a legal factor in the legal association; and the fraternity of all in the common enjoyment of a common equipment provided by common and co-operative effort—these, in summary, are the three principles, long associated by an ancient tradition which goes back ultimately to a Greek origin, on which the State and its law proceed in determining the distribution of rights.
The Principle of Liberty:
We may start from the axiom of Kant, that ‘rational nature exists as an end in itself’. Since man belongs to rational nature, this axiom leads to the practical imperative, ‘Act so as to use humanity, whether in your own person or in the person of another, always as an end, never as merely a means’.
It follows that the State, in order to adjust itself to this moral axiom and its practical imperative, must be a State of free agents: it cannot include slaves. The State is accordingly an association of free legal agents, and of nothing but such agents. Within that association, and under its system of law, there is room for nothing but the liberty of the free legal agent. But the liberty of the free legal agent, acting in the sphere of the State, is not the only liberty.
There is also the liberty of the free social agent in the sphere of Society. This social liberty is important: it has its own claims; and they need, and deserve, their own vindication. Social liberty may be menaced by the State, and curtailed in the name of the law and the defence of legal liberty.
Invading the area of Society as a conqueror, but professing to be a liberator, the State may seek, for example, to bring religion into the area of its own legal rules, assimilating religious societies to legally incorporated companies, and determining the scope of religious liberty by the scope of the legal liberty enjoyed by such companies.
This was long the tendency of revolutionary thought in France, from the days of the Civil Constitution of the Clergy in 1790 to the days of the Law of Separation in 1905; and in our time it is again the tendency of Marxian thought, which may preach the ultimate ‘withering away’ of the State and State control, but which also exalts the power of the State, so long as it lasts, over all thought and the whole of life.
But if social liberty, especially in that form or phase of its nature which we call by the name of religious liberty, can be menaced by the State, we have to admit that it may also be menaced by Society itself.
The ‘social stigma’, as John Stuart Mill wrote in his Essay On Liberty, may be more dangerous to freedom of thought and discussion than legal penalties; and the social group, religious or occupational, may seek to subject the liberty of its individual members to a stringent control by itself and its own system of social discipline.
In such a case the State may invade the area of Society not as a conqueror but as a genuine liberator. It may seek to limit the claim of a social group (for example a Church) to control the expression of thought and belief by its members, on the ground that the group is interfering with its own fundamental principle of the free agency of its citizens.
Spinoza, for instance, in his Tractatus Theologico-politicus of 1670, demands that the State, as the organ of liberty formed to defend the free use of reason (ut homines . . . libera Ralione utantur), should rescue the cause of freedom of expression of thought and belief from the control of ecclesiastical authority.
‘The untoward generation of metaphysical Article- makers’ against which he appealed has long disappeared; but new generations arise, in fields other than that of religion, and the liberating State is still needed—if only it can be found, and has not itself been enslaved to the dogmas of the ‘Article- makers’.
We have seen that liberty is not only legal, but also social; and we have also seen that social liberty may on occasion be invaded, but may also (when social groups themselves become the enemies of such liberty) on occasion be defended, in the name of that legal liberty of which the State is the organ.
Liberty is more than one: it is at any rate two; indeed we shall presently be led to suggest that it is even more than two, and that legal liberty itself—liberty within the State—is plural and has several forms. Meanwhile, and before we move to that argument, we have to notice that legal liberty, just because it is legal, is not an absolute or unconditioned liberty.
The truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free. The need of liberty for each is necessarily qualified and conditioned by the need of liberty for all; and the liberty of A will therefore be such liberty as he can enjoy concurrently with the enjoyment of similar and equal liberty by B and C and D.
The liberty of the owner of capital to determine the conditions of work in the factory which he owns is a relative liberty which must be adjusted to the liberty of the worker to do his work under such conditions as leave him still a free agent and give him also a share in the determination of the conditions of work. Because the liberty of each is thus relative to that of others, and has to be adjusted to that of others, it must always be regulated; and indeed it would not exist unless it were regulated.
Burke said with justice that ‘abstract liberty, like other mere abstractions, is not to be found’; and if he wrote with a flourish when he said T love a manly, moral, regulated liberty as well as any gentleman’, his adjectives have their truth.
Liberty is regulated; and in the last resort it is regulated not only by the fact of relation between one man’s liberty and that of others, but also by the fact that the liberty of all has a moral basis and must accordingly be what Burke calls ‘moral liberty’.
If regulation is already involved by the relation of agent to agent, it is further involved, and more deeply involved, by the intrinsic nature of the agent himself. If liberty be, as we have argued that it is, a derivative value, arising ultimately from the supreme value of the moral personality acting and developing its capacities as such, then the liberty which the State upholds, and makes a principle of its action, must be a liberty relative to, and therefore regulated by, the nature of such a personality.
It is not the indefinite liberty of an undefined ‘individual’; it is the definite liberty of a defined personality, seeking to realize specific capacities. Whether, therefore, we look at the relation of agent to agent, or whether we turn our view to the intrinsic nature of the agent, we come to the same conclusion: liberty in the State, or legal liberty, is never the absolute liberty of each, but always the qualified liberty of all.
Liberty within the State is thus a relative and regulated liberty: it is the greatest common measure of liberty which is possible for all, as determined and defined (1) by the need of each to enjoy similar and equal liberty with others, and (2) by the need of all to enjoy the specific liberty of realizing specific capacities. But if it is thus conceived as relative and regulated, and regarded as a definite and determinate measure, liberty is not diminished in virtue of that conception. On the contrary it is increased.
A relative and regulated liberty, actually operative and enjoyed, is a liberty greater in amount than absolute liberty could ever be—if indeed such liberty could ever exist, or ever amount to anything more than nothing at all.
There is no need, in the light of the previous argument, to speak of the relation of liberty to law. If liberty is one of the principles, or procedural rules, which justice requires that law should follow in distributing rights, then liberty is also law, or at any rate a part of law. (This is not to say that a particular law, or legal enactment, may not be a derogation from liberty: it is only to say that the general operation of law is also the operation and realization of liberty, as anyone will recognize who studies the action of the English courts of law in vindicating, for centuries past, the cause of liberty in England.) But if liberty and law do not quarrel, liberty may quarrel with itself.
The theme that liberty, even in the State, is plural; that there is more than one form of legal liberty; and, we may even add, that it is possible for one of these forms to quarrel with another.
It is not only true that there is a liberty in the social area as well as the liberty in the area of the State: it is also true that there are different liberties, or forms of liberty, which coexist, and may even conflict, in the State’s own area. We may distinguish three different forms of such liberty.
First, there is the liberty of a man in the capacity of an individual person—his personal liberty, or, as we may also say, his civil liberty. To Blackstone this civil liberty consisted in three articles—personal security, not only of life and health, but also of reputation; personal freedom, especially of movement; and personal property, or the free use, enjoyment, and disposal of all acquisitions.
Today we might prefer to say that civil liberty consists in three somewhat differently expressed articles—physical freedom from injury or threat to the life, health, and movement of the body; intellectual freedom for the expression of thought and belief; and practical freedom for the play of will and the exercise of choice in the general field of contractual action and relations with other persons.
Next to my civil liberty, there is my liberty in the capacity of a citizen: my liberty as a member of the public and a part of the legal association: my public or political liberty. To Blackstone this liberty is largely negative, and it seems to mean, in the main, the power of curbing government.
One of its articles is, indeed, the constitution, powers, and privileges of Parliament; but the other four articles are limitation of the King’s prerogative, application to the courts of justice for the redress of grievances, the power of petitioning government for redress, and the power of having and using arms for self-preservation and defence.
Blackstone would thus appear to conceive government as something external, and to regard political liberty (apart from Parliament) as a sort of counterweight in me to a pull or thrust outside me. Today we have come to hold a different point of view. Government is not external: it is in us, or springs from us; and we regard political liberty as positive in its nature.
It is a liberty not of curbing government, but of constituting and controlling it; constituting it by a general act of choice or election, in which we all freely share on the basis of universal suffrage; controlling it by a general and continuous process of discussion, in which we all freely share according to our capacities.
Besides the civil liberty which belongs to me in my capacity of an individual person, and the political liberty which belongs to me in my capacity of a citizen and a member of the public, there is also a third form of liberty in the area of the State. This is the economic liberty which belongs to me in my capacity of a worker, whether with hand or brain, engaged in some gainful occupation or service.
The conception of this third form of liberty is comparatively recent; and it may be argued that the conception introduces an unnecessary distinction. Is not economic liberty implied in civil liberty, and is it not simply a part and parcel of the articles of civil liberty, especially the first and third, which have just been enumerated? And if we distinguish an economic form of liberty, are we not equally bound to distinguish a religious form, and to introduce also the further conception of religious liberty?
So far as religious liberty is concerned, we may answer that it mainly belongs to the social area, and that in so far as it enters into the area of the State, it finds its safeguard in the second article of civil liberty. (We may also remember that ‘civil and religious liberty’ was indissolubly one, and a single cry for the champions of liberty, in the eighteenth century.) But so far as economic liberty is concerned, we are bound to acknowledge that the field of economic relations presents special difficulties which warrant the conception of a special and separate form of liberty in relation to that field.
It is true that liberty in that field is closely connected with civil liberty, and is largely included in that ‘play of will and exercise of choice in the general field of contractual action and relations with other persons’ which has just been mentioned as one of the articles of civil liberty.
But it is also true that it is specially difficult to guarantee the play of will and the exercise of choice for all who move in the field of economic relations and contracts; and it is further true that this field is specially and particularly large.
On this ground alone it may well be urged that the conception of a special and particular form of liberty is needed for this field. But this is not the only ground. If liberty in the economic field is closely connected with civil liberty, it is also closely connected with political; and we may argue, without any paradox, that since it is closely connected with both, it cannot be treated as being a part or department of either.
It is not a mere part of civil liberty, because it involves considerations which belong to political liberty; and equally it is not a mere part of the latter, because it involves considerations which belong to the former. The close connexion between economic and political liberty may be traced from two different, and yet complementary, points of view.
On the one hand, you may argue that the political status of the free citizen, with his share in controlling political government, demands the corresponding economic status of the free worker, with his share in controlling the government both of his general industry and of his particular factory.
From this point of view you assume the existence of political liberty as a given and actual fact, and you argue from it to the existence (or rather the bringing into existence) of another and corresponding economic liberty to form its necessary corollary.
On the other hand, and from another point of view, you may argue that political liberty is not a fact, and does not exist, until there is economic liberty, because the economically un-free worker is not, and cannot be, a politically free citizen.
From this point of view you refuse to assume the existence of political liberty as a given and actual fact; and on the basis of that refusal you argue that economic liberty is a prior condition of political liberty, and not a corollary which follows upon it.
But from either point of view— whether you adopt the liberal doctrine that political liberty precedes and entails economic liberty, or the more Marxian doctrine that economic liberty must always precede and can alone secure political liberty—you reach the conclusion that economic liberty is closely connected with political, and cannot be treated as merely a matter of civil liberty.
There are thus three forms of liberty in the State—the civil liberty of the individual person, ‘in mind, body and estate’; the political liberty of the citizen; and the economic liberty of the worker, whether with hand or brain. These three forms of liberty, may quarrel with one another.
The liberty of the citizen in the political sphere may quarrel with that of the individual person in the civil sphere: for example, the enjoyment of intellectual freedom for the expression of thought and belief, which is one of the great articles of civil liberty, may come into conflict with a parliamentary majority, acting in the name of political liberty, if such a majority seeks to lay down conditions adverse to the free expression of some line of thought and belief, on the ground that it is seditious and calculated to excite disaffection against the government or to promote hostility between classes.
Similarly the liberty of individual persons in the civil sphere may quarrel with that of the worker in the economic sphere; and the worker’s enjoyment of some share in determining his wages and the conditions of his work may be challenged, as in the past it was, by a claim on the other side to the enjoyment of a freedom of contractual action which warrants the employer in practically dictating the terms of wages and conditions of work.
Here political liberty can, and has, come to the rescue of economic liberty; but it is also possible that a parliamentary majority, acting in the name of political liberty, may seek to impose conditions adverse to the enjoyment of economic liberty as that liberty is conceived and claimed by the workers and their organizations.
Liberty is indeed a complex notion, which at once unites men in its allegiance and divides them by its divisions; and if, in theory, we all claim to serve under the banner of liberty, in actual life we are faced by the question, ‘Under which banner, and in the name of which liberty?’ That is one reason why we have different parties, all claiming to be parties of liberty.
For the theorist it is sufficient to say (1) that liberty is one of the principles of justice, and one of the procedural rules on which the State and its law must-act; (2) that in the actual application of that principle and rule, justice and law have both the difficult task not only of reconciling the liberty of one man with that of others, but also of reconciling the different liberties, or forms of liberty, with one another.
But then the whole task and problem of justice, is the task and problem of conciliation; and indeed, as we shall also have reason to notice, justice and conciliation are fundamentally one Justice, on a general view, has not only the task of conciliating the different liberties, or forms of liberty, with one another; it has also the task of conciliating liberty in general, in all its forms, with equality, and also, and in addition, the task of conciliating both liberty and equality with fraternity. Justice is the synthesis and the balance, holding together all the three and holding them all in an equilibrium.
The Principle of Equality:
Just as each person, because he is a person, is a free legal agent in the scheme of the State, so also each person, because he is a person and as much a person as all other persons, has an equal, standing, and counts equally as a legal factor, under that scheme.
This is not to say that each moral personality is equal to every other, in terms of total capacity and the power of developing such capacity; it is only to say that each legal personality is equal to every other in terms of legal capacity.
The State which vests us with legal personalities, personae, or ‘masks’, vests us all with equal masks, partly because it simply cannot distinguish our differences even if it would (we are all plain indistinguishable integers in the millions of its members), but ultimately for the far deeper reason that we all matter equally before the law, whatever our differences may be, in virtue of the simple fact of being all equally persons, and as such possessing some measure of capacity and some power of developing capacity.
We are thus arranged, as it were, in a level line at the starting-point of the race that lies ahead; and we start from that level line, so far as the State is concerned, with equal conditions guaranteed to each for making the best of himself—however much we may eventually differ in what we actually make of ourselves. (Equality is thus the beginning, not the end; the end depends on ourselves and on the use which we make of the equal conditions guaranteed to us, as a beginning, by the State.)
The principle of Equality accordingly means that whatever conditions are guaranteed to me, in the form of rights, shall also, and in the same measure, be guaranteed to others, and that whatever rights are given to others shall also be given to me. Acting on that principle of distribution the law gives to all—of whatever class and whichever sex, as soon as the age of discretion is reached and the legal person has fully emerged—an equal right of owning property.
This is not to say that it gives an equal right to owning an equal amount, which is an entirely different proposition; it is simply to say that it recognizes an equal capacity for owning. Burke’s dictum, ‘All men have equal rights, but not to equal things’, is a truism, and not a sophism.
Law is a giver of legal capacities, and of legal capacities only- If it gives such capacities even- handed, it has obeyed to the full the principle of equality, and done all that in it lies to observe and follow that principle.
But this notion of equality as being essentially an equality of legal capacity, and consisting essentially in the equal standing of legal persons before the law, has been in the past, and is still today, a notion difficult to grasp and hold in its own true shape and form. Equality is a Protean notion: it changes its shape and assumes new forms with a ready facility.
On the one hand, there has been in the past, among wealthy or cultured or otherwise powerful sections of the community, a feeling and an assumption, ‘We are different in general capacity: our wealth means a larger stake in the country, and our culture a greater grasp of affairs: it is only fair that our superiority in general capacity should be accompanied by superiority in legal capacity, and that we should have something more than an equal standing before the law’.
On the other hand, there is rising today, when the principle of legal equality has been generally asserted and vindicated, a feeling and an assumption among the less wealthy, or less cultured, or otherwise less powerful sections, ‘We are now equal to you in legal capacity: it is therefore fair that we should also be equal in general capacity—in wealth and the opportunities it brings; in culture and the grasp it gives; in the general equipment and endowment of our faculties— and that legal equality should thus be crowned by social equality’.
The past has gone; but we cannot understand the thought of the present, or do proper justice to the feelings and assumptions which are widely current today, unless we take into our reckoning the legacy of the past. We have to remember that for century upon century legal capacity was either denied altogether, or given only in an inferior degree, to many classes of persons. There was a long reign of legal inequality.
Down to 1772 the slave was denied any legal capacity on English soil; he was not a person in the eye of the law, and he had no share in the enjoyment of rights. Under the laws of settlement, as they were still interpreted in the eighteenth century, the potential pauper was condemned to an inferior degree of legal capacity by being denied the freedom of movement enjoyed by others; a man could not move to, or settle in, a new parish unless he could give security that he would never need poor relief from that parish.
Under the laws regulating the suffrage down to the year 1918 a person in receipt of poor relief was similarly condemned to an inferior degree of legal capacity by being denied the right of voting along with and on the same terms as others. If the pauper was long assigned an inferior legal status, so too were women; and so, too, were all who dissented from the established Church.
Under the common law relating to property, married women down to 1870 were destitute of legal capacity for ownership; under the laws regulating the suffrage all women, down to 1918, were without any legal capacity for exercising a vote.
The disabilities imposed on dissenters by a variety of Acts of Parliament, which made them unequal and inferior to members of the established Church, were only removed in the course of the nineteenth century: indeed, it was not until 1871 that the Universities Tests Act secured a general equality of admission to the benefits and privileges of the two old English universities.
Generally, however, the principle of legal equality may now be said to have triumphed. Legal capacity has ceased to be a matter of degrees, some higher and some lower; all alike, irrespective of class, or sex, or confession, are now equal persons under the law of the land, and all now enjoy, at any rate in form, an equal degree of legal personality. Even so, there is still some measure of legal inequality.
All may possess equal rights; but all have not an equal power of vindicating rights, so long as the vindication demands expenditure, and so long as some are more able than others to meet the expenditure demanded. In the actual operation of the courts, as distinct from the rules of the law of the land, inequality still remains, though it is steadily being diminished by reforms in their operation. So far of the past, and so far of the slow and gradual victory of the principle of legal equality. We may now turn to the present, and to the problem of what is called ‘social equality’.
A cardinal question which confronts us today is how far the State and its law should go in promoting equality of culture and economic equality; how far, in a word, the State should add social to legal equality, or, more exactly (since the State is a legal association, and since any equality which it promotes must also be in its nature legal), how far it should extend its principle of legal equality into the field of culture and the field of economics.
Is it possible to stop short at a bare conception of legal equality, or must that conception be extended and enriched by the inclusion in it of the idea of an increasingly equal distribution both of educational opportunities and of economic faculties?
In the matter of educational opportunities, the State has already secured an educational minimum open equally to all, and equally obligatory on all: it has also secured, by a method of selecting and endowing promise, a tolerably equal ladder of access to higher education for all who give some proof of the possession of higher capacity.
But whatever the State has done, there still remains a considerable amount of educational inequality, and, with it, a gulf of culture between the few and the many. Culture is not everything; indeed it is far from being everything; and men can meet men as equals, in spite of differences of culture, on the broad common ground of good sense and mutual consideration.
But a gulf of culture is still a sad gulf: it produces an awkwardness of social relations: it is an obstacle which hinders us all from attaining that general best society, richly and generally developed on the basis of the worth of all its members, in which alone each of us can be at his best.
The obstacle can only be removed by a steady raising of the educational minimum and a steady strengthening and lengthening of the ladder of access which leads to the educational maximum. On the other hand, we can hardly dream of absolute equality for all in education and general culture. We have to face two obstinate and irreducible facts.
One of them is the natural existence of individual differences in mental interest and mental capacity. The other is the social necessity of different social functions, ranging from ploughmen and smiths to scholars and Ministers of State, and requiring for their performance a difference of mental equipment. Whether there is any correspondence between these two orders of fact: whether the natural existence of individual differences answers the social necessity of different social functions—that is an unsolved problem.
We can only guess that nature has given us differentiated human material to use as best we can, and as justly as we can, to meet our different social needs. There is a difference in the material provided just as, and perhaps because, there is a difference in the needs to be met. It is our business to ‘match’ the differences.
But whatever ‘matching’ we may achieve, the differences themselves remain. Man is infinitely varied in interests and varied in his capacities; that is the riches of his kind. The variety of men is consistent with equality of worth; but it is not consistent with identity of mental capacity and interest. Nor does equality necessarily involve uniformity of education or identity of culture. Equality, after all, is a derivative value.
It is derived from the supreme value of the development of personality—in each alike and equally, but in each along its own different line and of its own separate motion. It has to be adjusted to that supreme value. What is derived must not divert, or defeat, the source from which it comes. But any equality which spelled uniformity would necessarily divert and defeat the spontaneous development of all the varieties of human personality.
In the matter of economic faculties, and the application of the principle of equality to their distribution, the State has a more difficult road to tread, and it is only at the beginning of the road. It has done something, since the beginning of the nineteenth century (the first Factory Act was as early as 1802), in the cause of economic liberty; but it did not face the problem of economic equality till the beginning of the present century.
That problem may be said to be twofold. It is partly a matter of status; it is partly a matter of property and income. The matter of status raises the issue whether the State should seek to turn industrial production into something like a partnership of equals, and should introduce by persuasion, backed ultimately by legislation, a system under which the directing and managing element stands on a more equal footing, and accepts a more equal status, with the manual and operative elements. (Whether the State should itself take over branches of industrial production, and itself become the directing and managing element, is another issue, not indeed unrelated to the issue of industrial partnership, but largely independent of it, and turning mainly on considerations of national interest and national efficiency.)
In the matter of property and income the issue raised is whether, and, if so, to what extent and by what methods, the State should seek to correct inequality in their distribution. The policy of the State has been setting towards some measure of correction during the last fifty years.
On the one hand, limits have been imposed on the accumulation of wealth by differential taxation of the incomes of the rich; on the other hand, the incomes of the poor have been improved by the regulation and raising of wages and by various methods of social expenditure on public social services which are in effect equivalent to an increase of income.
The combination of these two methods has introduced a greater equality into the distribution of wealth. But if the incomes of the poor have thus been increased, and the incomes of the rich diminished, there is still a large disparity of incomes; and when we turn from incomes to property, or the permanent ownership of capital resources, the disparity is still greater.
There has indeed been an increase in the volume of popular savings, fostered by the State, which has meant some further diffusion of property; but this only touches the fringe of the problem of finding a general system for its more equal distribution.
The State has still to grapple with that problem; it has still to consider, for instance, the method of profit-sharing, particularly in the form known as co-partnership, by which each worker in an undertaking shares in its profits by way of receiving an allotment of share?, and thus becomes a permanent owner of capital resources.
Whatever arguments may be advanced against the method, whether by those who prefer the method of the general nationalization of undertakings, or by those who desire to keep labour free from ‘entanglements’ with capital, it would have the result of producing a greater equality in the distribution of property; and it may thus be fairly said that it is a question for consideration whether the State should not seek to introduce— once more by persuasion, backed ultimately by legislation— some policy of this order.
In both of these matters—the matter of status, and the matter of income and property—it is clear that there is much to be done before legal equality itself can become a fact and not merely a principle. The original and basic equality of the simple legal person—the member of the legal association simply considered as such, or, in a word, the citizen—is itself imperfect, and will remain imperfect, until some further equalization both of economic status and of economic possessions has made equal citizenship a fact: a fact in the law courts and in access to a career: a fact in the chance of entering Parliament and in the general opportunity of entering the service of the State. But this statement has a reverse side, which is also in the nature of a corollary.
From the point of view of equal citizenship, the economic equality required is not a total or absolute equality: it is that amount of equality—no less, but also no more—which is relative to and necessary for the status of full legal equality in the system of State. Economic equality, after all, is relative to legal equality. But it is also relative to something higher and more original than legal equality.
It is relative to, and must square with, that supreme value, consisting in the development of the capacities of personality, from which the whole principle of equality, in all its forms, is derived. That is the ultimate test and standard, alike of the idea of educational equality and of that of economic equality.
Equality, in all its forms, must always be subject and instrumental to the free development of capacity; but if it be pressed to the length of uniformity, and if uniformity be made to thwart the free development of capacity, the subject becomes the master, and the world is turned topsy-turvy. But the issue of economic equality, particularly in its aspect of equality of income and property, is too grave and pressing an issue to be dismissed with vague generalities. It confronts us with an immediate and urgent question, the question of the relation of economic endowment to moral growth and development.
It has been argued above that such growth and development demand a system of equal legal rights and equality of legal personality. Do they also, and in addition, demand a system of equal economic possessions and equality of economic ownership? Or, if they do not, do they demand an approach, and if so, what degree of approach, to such a system? We must ‘condescend upon particulars’, and seek to give a definite answer, in particular terms, to these searching and definite questions.
In seeking to give such a definite answer we need not pause to inquire whether some persons may not be better qualified than others to use possessions as the tools and instruments of personal development, and whether, accordingly, on that ground of use, there may not be an argument for some measure of inequality in the distribution of possessions. There is a deeper and firmer ground of argument than that of use. This is the ground of acquisition.
Our nisus towards the development of the capacities of our personality is closely and inextricably connected with the effort of acquiring possessions. That is one of the essential ways in which we try ourselves out: in which we become conscious of capacities, begin to see them externally expressed in results, and even find some sort of measure of what is in us and what we can extract from ourselves.
The consciousness may be crude: the results may be merely material: the measure may be very far removed from a measure of genuine worth. But in the economy of our nature the nisus of personal development is mixed with this effort of acquisition and with its consciousness, results, and measure.
The issue—granted our human variety—is a variety and inequality in the amount of possessions acquired by the different efforts employed. Can this variety and inequality (we may now proceed to ask) be modified or corrected without damage to the effort of acquisition and (what matters far more) to the nisus of personal development with which the effort is mixed?
We may answer that it can be corrected without any peril or risk if, and in so far as, the amount of possessions actually enjoyed is not the result of individual effort, but of factors other than such effort. There are a number of such other factors. There is the factor of inheritance, not indeed wholly separate from effort (many men are spurred to effort by the thought of their children after them and the hope of handing on opportunity), but still, in the main, a substitute for effort.
Above all there is the general factor of chance, in all its forms: the chance of fortunate investment; the chance of the local environment of effort; the chance of meeting the caprice of demand; a whole world of chance. So far as such factors other than effort are the cause of variety and inequality in the amount of men’s possessions, there can be no moral argument—no argument based on the moral claim of the nisus of personal development—against the correction of inequality. But the correction of inequality on that ground, and within those limits, is one thing: the general abolition of inequality of possessions, and a general policy of economic equality, is something entirely different.
We may therefore dismiss, on moral grounds, any general policy of economic equality. Individually we should all be spiritually poorer (though many of us might be materially richer) through the blocking of a way of effort in which we try out our powers. Socially, we should lose the diversity and the dynamic process of movement which are necessary conditions of the best society in which each of us can be at his best.
A static and immobile society of economic equality is not the environment in which the greatest number of persons can achieve the greatest possible development of the capacities of personality. Such achievement is a dynamic process which involves a dynamic society, with a rich variety of stations and functions and an easy movement of coming and going among those stations and functions.
But to dismiss a general policy of economic equality is not for a moment to dismiss a policy of the progressive correction of economic inequality. On the contrary such a policy, is a necessary corollary of legal equality, itself imperfect and unachieved as long as difference of economic means is such that it produces differences of civic standing and capacity.
It is also a policy, as we have just seen, which is morally justified, and even morally demanded, in so far as the distribution of economic means is determined by factors and causes other than individual effort, and, more especially, by the factor of chance.
The true policy of equality in the economic, field is thus the correction of inequality, so far as such correction is demanded by the cause of legal equality, and so far as it is justified, and even demanded, by the action of factors other than effort in producing inequality in the distribution of means.
It remains to add that equality is not an isolated principle. It stands by the side of the principle of liberty and the principle of fraternity. It has to be reconciled with both, and, in particular, with the principle of liberty. Both liberty and equality matter; but there are reasons for thinking that liberty matters even more than equality.
In its application and general extension it is, in our history, the older principle, asserted and vindicated in the course of struggles which now seem ancient history. But it is not by any means the stronger—on the contrary, it is rather the weaker—for being the older. It has not the vogue of fashion: it seems to be outmoded and outshone by the more recent star of equality. Yet the principle of liberty may still be argued to be the greater of the two.
It is the greater because it is more closely connected with the supreme value of personality and the spontaneous development of its capacities. It is the greater because it entails the other: because we may say of it, ‘Seek ye liberty, and equality shall be added unto you’; because, in a word, free men, by the mere fact of being free, are also peers and equals in the essential and cardinal attribute of liberty.
It is the greater, finally, because the cause of liberty unites men together in something which each and all can possess; while the cause of equality, exclusively pressed, may make them sink into jealousy of supposed forms of invidious difference, and produce division rather than unity. The educational ideal is rather, and even more, the liberation of capacity than the equalization of opportunity.
There must indeed be equality of opportunity before all capacity can be free to develop; but the major and ultimate aim is liberation of capacity. In the same way the economic ideal is essentially an ideal of liberation; and though here too there has to be achieved some greater measure of equality, both in status and in possessions, before the battle of liberty can be won, the major and ultimate aim is the liberation of all into the service of a free partnership, where all have a voice in determining the rules of work and remuneration, and all enjoy the common liberty of helping to frame the common law under which all work and serve.
The Principle of Fraternity (or Co-Operation):
Here we must begin by making a distinction, between the psychological fact of common emotion and the political principle of fraternity or (as it is better called) co-operation. (Fraternity is a dubious word, which may be used to denote both emotion and principle, but is perhaps generally used to denote emotion rather than principle.) Common emotion takes various forms, or at any rate appears under various names, at various stages of its manifestation.
One of these names, current among the members of professions, is esprit de corps, a French term which, in English usage, serves to denote a feeling of attachment to some professional group and a particular regard for its honour and interests. Thus Bentham writes that ‘a particular community . . . such as that of divines, lawyers, merchants, &c., has its esprit de corps, its corporate affections’.
Another term, which is also of French origin, but which has a wider and larger significance, is solidarity: a term that has come, since its introduction into our language about a century ago, to denote especially the sense of unity and the feeling of a common cause pervading the members of occupations.
When we move from professions and occupations to the area of the State, we come upon terms of a still wider significance, such as ‘fraternity’ and ‘nationalism’ or ‘patriotism’. These terms, too, are all of French origin; but if they agree in their origin, they differ in their connotation and their associations.
Fraternity, with its general suggestion of brotherhood, has the widest sweep, and may even serve (as it did at the time of the Edict of Fraternity of 1792) to denote international or cosmopolitan emotion; but nationalism and patriotism are also terms of width.
Nationalism, in its proper sense, is a term which belongs to the area of Society rather than that of the State: it is a feeling of attachment to the tradition and achievement of the whole national society, in all the varied range of its life, just as patriotism (if we distinguish it from nationalism) is a feeling of attachment to the very soil and the physical features of the whole ‘land of our birth’ or patria, in all its sweep and variety.
But both of these terms, though they are terms of width, may also be terms of exclusion: they may ring and confine us within the circle of our particular national society, or our particular patria. It is a more serious matter that both of these feelings of attachment may easily be diverted from their original object, the whole of national Society and the whole land of birth, and transferred instead to the State, which is something different from both, even if it is based upon both.
It is a still more serious matter that these feelings, when so diverted and so transferred, may readily be transformed into etatisme and chauvinism: an internal idolatry of the organizing State and a missionary zeal for the spread of its external power. The penetrating genius of French thought, which has distinguished and named so many forms of common emotion, has not shrunk from the analysis and description of its final extremes.
These psychological facts are not principles, as equality and liberty are principles. They are in no sense rules of procedure, regulating and determining the action of the State in its dealings with its members. They are simply, in themselves, mere facts of common emotion.
In so far as the term fraternity is used to denote such a fact, it is not in pari materia with liberty and equality: it is not, as they are, a principle, but only a fact of feeling; and if it is yoked with them, in that sense and with that denotation, it is yoked illogically and improperly.
But the term fraternity may be used, and has long been used, in another sense and with another denotation. It may be used, to denote a principle or rule of procedure on which the State is bound to act in the course of its general function of providing for its members the conditions of their personal development.
That principle, which, as we have seen, may also be called the principle of co-operation (a term less ambiguous because more free from emotional associations), is a principle dictating common provision for common needs. It commands, we may say, the provision of that common ‘equipment’ which is the necessary background and basis of all individual lives.
As Aristotle taught in the Ethics and Politics, and as all experience testifies, personal development requires a choregia or equipment: a supply of ‘external goods’, or material means, which makes development possible, and without which we should live an animal life of struggle for mere existence. It is the business of each of us to provide, so far as we can, our own individual equipment.
Such individual provision is a part, as well as a basis, of the whole process of our development; and the effort of acquiring possessions, as reason for thinking, is closely and inextricably connected with the general nisus of personal growth and the general unfolding of personal capacity.
But whatever we may do in the way of providing an individual equipment, we need in addition, and over and above it, a common equipment on which all can draw, and which all must therefore provide by common and co-operative effort. It is here that the principle of co-operation, or fraternity, asserts itself, demanding this common equipment and dictating this common provision.
The thoroughgoing and doctrinaire Socialist will press this principle to the length of contending that common equipment is the major need, or even that all equipment should be common. If we believe that there is value in the individual provision of equipment, and value, too, in the provision of equipment by the voluntary action of social groups (acting side by side with the State, but yet acting of their own motion), we shall limit the provision of common equipment by the State to the area of what cannot be provided, or at any rate cannot be provided adequately, by the joint action of individual effort and the effort of voluntary groups. The State will thus stand in reserve. It will provide the whole residuary equipment; it will complete that common basis, both of services and resources, which is the common need of all.
This common basis of services and resources is partly material and partly mental. On the material side it covers a large and constantly increasing range. It includes the provision of means of communication, and the general easing of free personal movement; it includes works of sanitation and housing, and the provision of medical service, to ensure the conditions of health; it includes schemes of provision for invalidity and old age, in order to secure a decent livelihood at the times and seasons in which individual effort is impotent or inadequate; it includes schemes for the development of general economic resources (such as forests, or mines, or electric power) by methods which go beyond the reach of private enterprise, and are intended solely for the common benefit; it includes the promotion of research into the general conditions of health and wealth for all (by bodies such as the Medical Research Council and the Department of Scientific and Industrial Research); it includes measures for the preservation of rural and urban amenities by the protection of natural beauty in the country and by promotion of the planning of towns with a view to decency and order.
Measures such as the last just mentioned are, however, more than material, both in their intention and in their effects; and they form a natural bridge of transition from the material side of the common equipment to the mental or spiritual side. The common basis of services and resources necessary to a properly organized community is a matter of the mind as well as the body: it means a mental or spiritual as well as a material equipment.
On this side the common basis is largely, as yet, a matter of educational equipment; but it is also, and it may become even more, a matter of general cultural equipment. The one involves the provision by the State of schools and colleges and universities—in collaboration with voluntary effort.
The other involves the provision of galleries, museums, and libraries; the provision of social (or community) centres, public concert halts, and national theatres; in a word, the provision of all the common facilities needed for the common enjoyment of all the treasures of culture—but with the proviso, once more, that such provision should be made by the State in collaboration with voluntary effort.
The proviso is important: indeed one may say that it is almost as important as the provision itself. If the common equipment of education and culture were all provided by the State, there would be a grave danger of uniformity and even of mechanism. The life of the mind is varied, and rooted in spontaneity.
The State has a duty of serving that life, by helping to provide the equipment which it needs; but the wisest service will often consist in the helping of agencies other than itself. Our own State has shown that wisdom in its dealings with universities. In the interest of variety and spontaneity, so essential in the sphere of the mind, the same wisdom of caution and self-restraint may well be adopted as a general policy.
Many may feel that the State should be generous and open-handed in its provision of the common equipment of education and culture. But perhaps it is most truly generous when it is generous in its help to voluntary agencies, and generous in the respect which it pays to the cause of variety and spontaneity.
A general reflection occurs to the mind in regard to this principle of fraternity when so conceived and defined. It is a reflection which also embraces the two sister principles of liberty and equality; but it springs immediately from the principle of fraternity or co-operation.
It is natural enough that some fund of emotion should gather round the whole system of the State: round the law it maintains, the rights which it guarantees and distributes, and the principles on which it distributes those rights.
Such emotion is something different from fraternity in the sense in which that term has just been defined, a sense which makes it not a state of mind but a principle of action; and yet it may be particularly and immediately inspired by a sense of the value and the beneficent effects of that particular principle. But however it may be initially inspired, this fund of emotion, as it gathers volume, attaches itself to the whole operation of the whole of the legal association; to its law, to its body of distributed rights, and to all the principles of their distribution. We may give the name of ‘loyalty’ to this fund and bank of feeling.
It is the capital, or rather the credit, of the State; it is an accumulated confidence in the operation of law, issuing in a feeling of fidelity to law (loialte, loyaute, faith in the law). This loyalty is not a value, but a recognition of values: a common recognition of the values expressed and upheld in the law of the State: a common recognition which rises to the height of a common emotion attaching itself to those values.
But it is not the only common emotion which moves the minds of the members of a nation. Because there is something beyond the State and its system of law, there is also something beyond the emotion of loyalty for the State and its system. This is the common emotion which the members of a nation feel for national Society itself, in the range of its operation which lies beyond (or rather around) the area of the State.
It is national feeling, or nationalism, in the best and highest sense of that word. It is the sentiment of the long co-operative effort made by a national Society in the exploration and cultivation of a national way of life and type of civilization: the sentiment of the debt of each to the past and present of his Society, and of the obligation of all to its future.
Another reflection occurs to the mind which is at once a corollary and a corrective. Emotions are good servants; but they are also bad masters. Both the emotion of loyalty to the State and the emotion of nationalism for national Society are, or should be, controlled emotions.
My loyalty to the State is controlled by the values for which it stands; and if the State should be unfaithful to them I may be bound by these controlling values to turn my loyalty into disloyalty, and to change a happy obedience into reluctant resistance. Similarly my emotion of nationalism for my national Society is controlled by the values of the way of life and type of civilization for which my Society stands.
So far, therefore, as those values are shared by and present in other national societies, I shall feel an emotion for them not only as they exist in my own society, but also as they exist in those other societies; I shall therefore cherish a feeling for those other societies, as well as for my own; and thus my nationalism, being controlled, will not be exclusive.
It is only uncontrolled nationalism which becomes exclusive nationalism; and such an exclusive nationalism is a negation of its own basis, because it refuses to recognize in others the very values on which it depends for its own existence.
We may therefore conclude that while common emotions cluster immediately round institutions—the legal and political institutions of the State, or the social institutions of national Society in all its range—they are ultimately directed to, and controlled by, the values expressed (it may be imperfectly) in the matter and stuff of those institutions. But it is easy to fall into what may be called un- criticized institutionalism.
This is a direct and immediate cult of the matter and stuff of the institution: the school or college; the State or nation; the class (if a class can be an institution), or the occupation or profession. All institutions need the motive power of a true, or balanced, institutionalism: a common belief in the values expressed and the purpose served by the institution: a common belief issuing in a common emotion, and resulting ultimately in a common will.
But institutions may also run into an un-criticized institutionalism, which stops short at the matter and stuff; which is a cult of some group, with its institutions, in and for itself, and which therefore is an exclusive cult, repelling the members of other groups in the act of attracting to itself the members of its own. The common emotion of a group for itself and its institutions may be compared to a head of steam in a boiler.
It is in its place and measure a necessary motive power. But just as there may be too great a head of steam in a boiler for the ultimate end of motion, so there may be too great a head of common emotion in a group for the ultimate end of individual growth and personal development.
Common emotion has its benefits in elevating men above the level of self-interest. It may also have its disadvantages, in depressing them below the level of self-knowledge and self-development. In these days of crowded populations and gregarious habits, common emotions are easily generated: the problem is not to create them, but to bring them under control.
The problem is all the more urgent because a new technique of ‘mass-communications’ has made it easier than ever to move and fire great aggregations with a common ardour. The result is a sort of secular mysticism: a readiness to lose personal identity and individual responsibility, and to be merged in the movement of a common life.
There is a world of difference between such secular mysticism and that of the religious mystic. The religious mystic may be a loyal member of a religious group, but he has a core of individual solitude; and if he is ready, and even eager, to lose himself, it is in union with a personal God, achieved through the ecstasy of active and personal contemplation, that he longs to be lost. The secular mystic has no such core: he begins and ends in surrender; and his surrender is not the surrender of a person to a person, but of a unit to an aggregation.
The Final Principle of Justice:
It is the final principle which controls the general distribution of rights and the various principles of their distribution. It is, in a word, the general right ordering of human relations in, and by, the association of the State. As such, it gives to each person rights, as his share in the whole system, and it thus ‘adjusts’ person to person.
As such, again, it gives to each principle of distribution (liberty, equality, and co-operation) its share and weight in determining the distribution actually made, and it thus ‘adjusts’ principle to principle. This idea of justice as the general ‘right ordering of human relations’, or the final adjustment of persons and principles, may appear to be an abstract conception if we compare it with actual concrete law, which is its visible expression and actual embodiment.
But it is not abstract; nor does it reside merely in the speculative mind of the thinker, seeking, by an effort of his own reason, to separate and distil some sort of quintessence from the matter and practice of ordinary life. The idea of justice resides in all minds, and it has been created and developed through the ages by a process of historical social thought, which has made it a common inheritance.
In that sense, and from that point of view, it is not an abstract conception but a social reality: an actual content of actual minds: a content progressively greater and clearer as those minds think out more fully and consciously the problems of a general right ordering of human relations.
This justice is not morality, and its code is not that of ethics; it is not a rule of the inward life, but a rule of the outward life—the life of the relations between the members of an organized Society acting as such.
On the other hand, this rule of the outward life of relations is vitally and intimately connected with the inward moral life: it is a condition, or set of conditions, needed and designed for the free movement of that life: it is a removal of the obstacles, or a hindrance of the hindrances, which may impede that movement. If justice is not morality it is based upon it. If its code is not that of ethics, it is a code which, is ultimately derived from ethics.
To elucidate the meaning of a term such as justice, built and vested with associations by an historical process of social thought, we shall do well to go back to its origin and the root from which it has grown. That root, which appears in many branches and has been prolific of many growths, would seem to be the notion of ‘joining’ (as in the Latin jungere or the Greek zeugnunai): of ‘binding’, or ‘fitting’, or ‘tying together’.
Justice is thus, in its original notion, the quality or aptitude of joining: it ties together whatever it touches. Primarily, it ties men together, by the common bond of a right and ‘fitting’ order of relations, under which each has his position in the order and receives his due place (suum cuique); each has rights as his share of the general Right pervading and constituting the order; and each owns jura as the exemplification and concrete expression in his own case of the general jus.
Accordingly the Institutes of Justinian define justice, considered as a subjective feeling and a consequent will for the general right and fitting order, as constans et perpetua voluntas suum cuique tribuendi. Similarly the Institutes define the three precepts of jus, considered as the objective expression of the right order in a recognized and enforced body of rules, as consisting in honeste vivere (‘living’, as we say, ‘up to one’s position’), alterum non laedere (not injuring the position of another), and suum cuique tribuere (actually and positively respecting another’s position and rights).
Aristotle, almost a thousand years earlier, had distinguished three different species of justice, as the Institutes afterwards distinguished and defined three precepts of jus.
The first is ‘distributive’ justice, which gives each person his proper position and due share in the political community: this is analogous to Justinian’s suum cuique tribuere, but it also differs, as it is concerned only with the distribution by the city-state among its members of public or official position, and not with the giving of general position in the shape of a share in general rights.
The second is ‘corrective’ justice, which corrects a loss of position and rights involuntarily sustained in the course of transactions between individual members of the community: this is analogous to Justinian’s alterum non-laedere.
The third is ‘commutative’ justice, or justice in exchange, which determines the proportion of one sort of goods or services to be rendered in return for another sort in voluntary transactions of buying and selling or letting and hiring: this has no analogy with any of Justinian’s three precepts—unless it be taken as another form of Justinian’s suum cuique tribuere.
Such is the primary way in which justice performs its function of ‘joining’ and ‘fitting together’. But there is also a second and further way. Justice is a joining or fitting together not only of persons, but also of principles. It joins and knits together the claims of the principle of liberty with those of the principle of equality, and both with those of the principle of fraternity or co-operation: it adjusts them to one another in a right order of their relations.
Equality may quarrel with liberty; for if its application be pushed to the length of what is called a ‘classless’ society, with absolute equality of possessions, it is at once brought into conflict with the liberty of each to try himself out in the effort of acquiring for himself some individual ‘equipment’.
Similarly the principle of liberty may quarrel with that of co-operation: on the one hand, men may stand on the claims of their liberty (whether the civil liberty of the ordinary individual, or the economic liberty of the worker) to the detriment of the claims of the community for the co-operation of all its members; on the other hand, a party may press the claims of co-operation to the length of demanding the common provision and common possession of the whole equipment of life, and it may press them thereby to the detriment of the claims of the individual for civil liberty and personal freedom of effort.
But not only may there be conflicts between one principle and another; there may also be internal conflicts inside the area of a single principle. In the area of liberty, for example, as the argument has previously suggested, civil liberty may be pleaded in support of claims which run contrary to those of economic liberty; and similarly political liberty may be on occasion the enemy, even if it is generally the friend, of either civil or economic liberty.
There must therefore be some final principle transcending that of liberty, as it also transcends the principles of equality and co-operation: a principle which can balance each of these principles against the others, as it can also balance against one another the different and possibly divergent modes of interpretation that may be present within the area even of a single principle: a final principle which, in a word, suum cuique tribuit.
That final principle is justice, which balances, and thus reconciles (and thus, in the issue, ‘joins’), the different claims. This balancing and reconciling, in its turn, implies some final and ultimate value in the light of which, and by reference to which, it is possible to strike a balance and achieve a reconciliation; for you can only balance different and possibly conflicting claims if you have something behind them all in terms of which you can measure the weight to be assigned to each.
That final and ultimate value, on the basis of the argument previously advanced, is the highest possible development of the capacities of personality in the greatest possible number of persons. Justice is therefore an order of persons, and an order of the principles regulating the distribution of rights to persons, which is measured and determined by this final and ultimate value.
It is an ancient commonplace that justice is the holder of a balance; and the visual representations of the personified figure of Justice accordingly show her with a balance in her hand and with eyes blindfolded as a sign of her impartiality.
On the argument here suggested justice holds in the balance both the claims of persons to rights and the claims of different principles to determine the distribution of rights, and she measures them both by the standard of the maximum development of the capacities of personality in the maximum number of persons.
A different view has been propounded by an American jurist, Dr. Roscoe Pound, in his Introduction to the Philosophy of Law. It is a view which invites discussion because in one form or another, under the general influence of socialist thought, it is’ widely current. According to this view the balancing of claims by reference to the standard of the development of personality is an outmoded fashion of the past.
It belongs to a mode of thought which was current for the four centuries from 1500 to 1900; from the age of Renaissance and Discovery to the age of capitalism and imperialism. It was natural, and even valuable, in that age of individual expansion, to conceive justice as ‘a making possible of the maximum of individual free self-assertion’.
The times, however, have changed, or so the argument runs. We live today in a crowded age of social groupings, in which a free field for the assertion of individual wills is a policy producing more friction than it relieves; and an open door for the satisfaction of social wants is now the urgent need.
The problem is to harmonize the satisfaction of these wants; or rather (for Dr. Roscoe Pound despairs, in the issue, of finding any standard by which a true harmony can be achieved) it is simply to satisfy as many of these wants as can be simultaneously satisfied.
The difficulty of the philosophy of Dr. Roscoe Pound does not lie so much in his substitution of ‘social wants’ for ‘individual wills’, as in his failure to find any standard by which such ‘social wants’ can be brought into any balance or harmony.
We may, indeed, deprecate his assumption that ‘wants’, ‘desires’, ‘interests’ (the terms are used convertibly) are the essential factors to be considered; and we may urge that beyond these factors, which seem to be conceived as mass or group factors (the adjective ‘social’ is recurrently added to each of the nouns), there are individual persons, and capacities of individual personal development (which are something different from ‘individual wills’), that matter, and matter profoundly.
But the really grave difficulty in Dr. Pound’s view is his surrender of the notion of any criterion or standard of value by which different wants, desires, and interests can be measured and adjusted. All wants would appear, in the issue, to be equal: equally final; equally absolute. He does, indeed, speak of the problem of grading and valuing wants. But he seems to confess that it is insoluble, and that all wants must thus be regarded as on the same footing of value.
This seems to reduce justice to a mere de facto balance of different social wants, controlled by no criterion, but attained by the registration of any actual equilibrium which the clash of equally valuable wants has attained for itself at any given time. It would justify a balance in which the wants of one particular type, if it were the most powerful or the most numerous or both, had tilted the scale.
It leaves us accordingly with a pragmatic justice of the fait accompli, destitute of foundation or reference. This pragmatic justice necessarily has for its fellow an equally pragmatic system of law. Law, which is the visible expression of justice, becomes accordingly a simple activity of ‘social engineering’, which drives the best-graded road that it can through the intricate hills of social wants with a view to surmounting as many as possible with the greatest possible ease.