The Philosophical Review/Volume 1/Review: Spencer - Justice

by Jacob Gould Schurman

Justice: being Part IV of the Principles of Ethics. By Herbert Spencer. New York: D. Appleton & Company. 1891. — pp. vi, 291.

Mr. Spencer has been the herald of the age of Industrialism. The fulfilment of its cardinal obligation, to work, is conspicuously illustrated in the production of the present volume. The author says: "Years of declining health and decreasing power of work brought, in 1886, a complete collapse; and further elaboration of The Synthetic Philosophy was suspended until the beginning of 1890." The work before us is the first-fruits of a partially restored health and energy. The civilized world will congratulate Mr. Spencer alike on his returning vitality and on his fresh productivity. May both be continued!

In his preface to the ''Data of Ethics'', published in 1879, Mr. Spencer informed his readers that all other parts of his Philosophy were subsidiary to Ethics; that his "ultimate purpose, lying behind all proximate purposes, has been that of finding for the principles of right and wrong in conduct at large a scientific basis." To the prosecution of this task he now devotes his " remaining energies," beginning with the part of most importance. This is "Justice," which is Part IV of the ''Principles of Morality''. Of the other divisions, Part I, "Data," has already appeared; Part II, "The Inductions of Ethics," and Part III, "The Ethics of Individual Life," will, it is hoped, be issued before the close of next year; Part V, "Negative Beneficence," and Part VI, "Positive Beneficence," will then receive attention, provided the author is able to continue the work.

This volume on "Justice," which consists of twenty- nine chapters and four appendixes, falls into three main divisions: the first devoted to the determination of Justice, the second to the Rights deducible from it, and the third to the nature, constitution, and proper functions of the State.

As human life is a further development of sub-human life, the biological moralist naturally regards human Justice as a further development of sub-human Justice; and this we are to discover in the struggle for life and survival of the fittest. Is it not a fact that, apart from gratis benefits to offspring, the members of animal species receive benefits and evils directly proportionate to their powers of self-sustentation? "This, then, is the law of sub-human Justice: that each individual shall receive the benefits and the evils of its own nature and its consequent conduct" (p. 9). This formula, however, is adequate only for creatures which lead solitary lives. When we pass to gregarious creatures, we find a second factor in sub-human Justice. Association and co-operation are impossible without some limits to individual activity. To the positive and primary element of Justice — the receipt of benefits and injuries due to the nature of the individual — must, therefore, be added a negative and secondary element — non-interference with the like actions of associated individuals. There is even a further qualification of the primal law. So far from receiving the benefits and evils of its own nature, a member of a species may occasionally be sacrificed for the prosperity and preservation of the entire species.

Human Justice has no other elements than those constituting sub-human justice. The law of the survival of the fittest holds of man as of all inferior creatures. The individuals best adapted to the environment prosper most; the individuals least adapted prosper least. "And as before, so here, we see that, ethically considered, this law implies that each individual ought to receive the benefits and the evils of his own nature and consequent conduct" (p. 17). As Justice becomes more pronounced with the advance of organization, it is higher in man than in brutes, and higher in civilized than in savage mankind. This is especially noticeable in regard to its negative element. Throughout the animal kingdom Justice is realized mainly, if not exclusively, in the results of an unchecked struggle for life; but under the conditions imposed by the social life of man, individual activities must be limited, if they are not all to be annihilated, by the similar activities of other individuals. "Thus the mutual restrictions, which simultaneous carrying on of their actions necessitates, form a necessary element of Justice in the associated state" (p. 151).

This objective Justice, if I may call it so, does not fail of its subjective counterpart. Mind, like body, tends ever towards adjustment to the conditions of existence. Feelings appropriate to that habitual connection between conduct and consequence wherein Justice consists, gradually emerge, nascently in lower animals, distinctly in man. Such is the origin of the sentiment of Justice. In its earliest form it is a feeling which prompts the maintenance of freedom of action. This is the egoistic sentiment of Justice. The development of the altruistic sentiment of Justice — the subjective response to the requirement that each shall act within the limits imposed by the actions of others — is brought about in the course of adaptation to social life. The primitive tendency to pursue the objects of desire without regard to the interests of fellow-men is gradually checked under the influence of four deterrents: the dread of retaliation, the dread of legal punishment, the dread of social dislike, and the dread of divine vengeance.

Besides this sentiment of Justice, which corresponds to and re-enforces the objective requirements, there emerges with the evolution of intelligence an intellectual perception, an idea, or even an intuition of Justice. It is obscure among warlike peoples, but distinct among relatively peaceful peoples. The two elements of the idea are, (1) each man's recognition of his claims to unimpeded activity and the result it brings, and (2) the consciousness of limits necessitated by the like claims of others. The first is the "brute" element in the conception, the second the "human" element (p. 40). The first has for its ideal inequality; the second, equality. The latter is the later growth. Modern socialists suppose equality the only element of Justice, as primitive savages held inequality to be. But the true conception of justice is found in a synthesis of both. And "no incongruity exists when the ideas of equality and inequality are applied, the one to the bounds and the other to the benefits" (p. 43). That is to say, Justice consists in the liberty of each, limited only by the like liberties of all. This law of equal freedom is the principle of natural equity, the law of nature, to which jurists have always looked as a basis for systems of law.

Our belief in the authority of Justice is warranted by "consciousness after it has been subject to the discipline of prolonged social life," and it is also "deducible from the conditions to be fulfilled, firstly, for the maintenance of life at large, and secondly, for the maintenance of social life" (p. 60; cf. p. 152).

Chapters viii to xxi are devoted to deducing, and tracing the historical development of, the various rights which may be inferred as corollaries from the supreme law of equal freedom. These rights coincide with ordinary ethical conceptions and have in every case legal enactments corresponding with them, — enactments of which they are the ground and not vice versa. They are the right to life and physical integrity, the right to free motion and locomotion (which involves the repudiation of slavery), the right to the unimpeded use of light, of air, and (so far as justice to existing land-holders permits) of the earth, the right to property, both material and immaterial, the right to give and bequeath, the right to free exchange, free contract, and free industry, the rights of free belief and worship and of free speech and publication. The rights of women are modified by the marital relation, for which Mr. Spencer is disposed to assert pretty strongly the leadership of the husband, and by an incapacity for military and other burdensome functions, which involves the loss of certain political privileges. The right of children to gratis benefits, resting as it does on the same primary requirement (preservation of the species) as the law of equal freedom, has equal validity with other rights. As a partial equivalent for these aids Mr. Spencer demands obedience from children to parents.

The division just summarized, while showing the same dialectical skill and ability as met us in the chapters devoted to Justice, is enriched by a wealth of sociological and historical facts which Mr. Spencer marshals with his usual felicity as inductive verification of his deductive argument. The final division of the volume, which deals with a living issue in politics, is everywhere instinct with the earnestness of assured conviction on a great subject, and for this reason, perhaps, its tone is occasionally somewhat controversial and its arguments here and there a little too personal.

This part opens with a chapter on "Political Rights — so called." There is good reason for the qualifying epithet. Mr. Spencer holds "there are no further rights, truly so called, than such as have been set forth" (p. 176) in the paragraph preceding the last. Government is merely instrumental to the maintenance of these rights, and the franchise is a method of creating government. In the first stage of its development the state has mainly to do with the protection of its members from death and injury by external foes, in the last stage its main if not entire function is to prevent internal trespasses. It cannot discharge this duty if its legislators are under the influence of classes, be they nobles, capitalists, or laborers. Hence the modern industrial state should be so constituted as to have "not a representation of individuals but a representation of interests" (p. 192). In accordance with this conclusion, Mr. Spencer deprecates the "one man, one vote" theory, with the socialistic class-legislation to which it is now leading. Everywhere throughout the work he is the uncompromising opponent of socialism; and the closing chapters have a massive argument, appealing both to reason and to experience, to show that it is a violation alike of justice and of good policy, for the state to undertake any other duties except those of protecting its citizens from external foes and from internal transgressors. For the better performance of the latter it is suggested that the state "should administer justice without cost, in civil as well as in criminal cases" (p. 211).

It is not easy, in the absence of the still unpublished part of Mr. Spencer's ethical philosophy, to make a correct estimate of the part that has just been given to the public. It seems not unlikely that his subsequent theory of positive and negative beneficence will lead to modifications in the present abstract doctrine of Justice, Rights, and Government. As, however, he has seen fit to publish the latter independently, our criticism need not go beyond its actual contents.

The peculiarity of Mr. Spencer's ethical system is the claim to have found in biological requirements the ultimate justification of morality. Whether in general this amounts to more than the truism that, in order to live well, it must first be possible to live, is a question we need not at present discuss. I mention the matter at all only because the present volume professes to furnish us with a biological deduction of justice. We are told that, inasmuch as in the evolution of life animals have prospered according to their structural adaptation to the conditions of existence, the supreme law of morality, if we concede the welfare of the species to be the ultimate end, is "that each individual ought to receive the benefits and the evils of his own nature and consequent conduct"; and that such an entail of advantages and disadvantages is what is meant by Justice, or what constitutes at least the "positive element" in Justice (p. 17; cf. pp. 8, 9, 15, 45, 130, 150, 260). Both these fundamental positions seem to me untenable.

As to the first, the moralization of natural selection, I can only observe that it is altogether illogical to turn a natural fact that is into a moral law that ought to be. We may hope that in some ultimate scheme, though we understand it not, whatever is is right; and that even such a ruthless process as the evolution of animal life by extinction of the less favored forms is not without rational significance. But we cannot, without a violation of the norms of reason and an outrage of the sentiments of the heart, transform the animal's struggle with its environment into the supreme ideal of human life. Nor does this model commend itself by the additional qualification of reciprocal non-interference with one another's lives. The receipt of the natural consequences of an individual's nature, active or quiescent, — wherein Mr. Spencer discovers the essence of Justice, — seems to me neither just nor unjust, neither right nor wrong, neither moral nor immoral. No doubt this process has made the later generations of animals stronger, more cunning, and better adapted to the environment than the earlier generations. And were we aiming at a similar improvement in the breed of man, we might perhaps not be able to do better than let the process of natural selection go on undisturbed. In that case we should have no charities for the poor, no hospitals for the sick, no protection for the weak and helpless. If the goal is the superiority of future generations, let the least favored varieties be eliminated. But there is no reason or excuse for such a consequence when it is recognized that the conception of human welfare as ethical end implies, first of all, the well-being of existing humanity, each member of which is to be treated as an end in himself, never as a mere means to other ends, and then, secondarily, the welfare of future humanity, — but only in so far as is compatible with the just claims of every living child of man. Mr. Spencer's moralization of natural selection is not demanded by an ethical system which places the supreme end in the welfare of the species, nor is it in itself inherently defensible. To the contention that the biological law "possesses the highest possible authority" (p. 150) because it records the process followed in the maintenance and evolution of life, it must be replied that even if this circumstance invested it with "authority," — as it does not, — natural selection, when it reaches the plane of rational life, is subordinated to the higher principle of human sympathy and sociality, which is the taproot alike of morality and of the organized community in which it is realized. Ethics, accordingly, carries us into a sphere — not merely of living, but of living well — in which the biological formula is without application.

This leads to the second point. I cannot agree with Mr. Spencer that natural selection furnishes us with the content, or "positive element," of the idea of Justice. In a universe with only one person in it, there could be no justice, even though he should receive all the consequences, good and evil, of his own nature, just as a solitary animal does. Justice implies a relation between one person and others, or at least one other, and consists of fair play, impartiality, proportionate distribution of burdens and benefits. In a universe, therefore, in which no one received all the consequences of his own nature there might nevertheless be a perfect realization of justice. Justice does not prescribe what goods or ills the citizens shall receive, but simply that these shall be distributed in a certain way among the recipients, not perhaps equally, but at least in a manner exclusive of arbitrary inequality.

But, it may be objected, when this principle of distribution is particularized, is it not identical with that for which Mr. Spencer contends? Will not each one's just share be the sum of benefits and evils that result from his nature and conduct? Now in spite of superficial likeness, there is a radical difference between Mr. Spencer's doctrine and the view of Justice held by the generality of mankind. The common view is that the principle of distributive Justice requires, in the absence of interventions due to contract or custom, that persons should be treated according to their deserts. And desert implies the free choice of good or evil the power of doing otherwise at the moment of acting. In practice it is impossible for us to distinguish what is due to free choice and what comes from natural endowment and favoring circumstances. We must content ourselves, therefore, with making similar awards for similar services. But our ideal of Justice is conceived as realized in Providence, who reads the hearts of men and makes a due requital of their good and ill deserts. Now whoever denies the power of free choice dissipates the common notion of desert, and undermines the foundation of Justice as ordinarily understood. This is the case with Mr. Spencer who holds that moral, like physical or intellectual, defects "are all primarily inherited" (p. 42). He must, accordingly, reconstruct Justice on some other principle. In terms he not infrequently appropriates the philosophy of Common Sense as when he tells us the law is "that benefits received shall be directly proportionate to merits possessed," or "that individuals of most worth . . . shall have the greatest benefits" (pp. 6, 8.) But how far removed this doctrine is from the ordinary view is made very apparent by the definition of worth or merit as "power of self-sustentation " or "fitness to the conditions of existence." Mr. Spencer discovers the positive or essential element of Justice, not in the requital of desert of which the individual is the originator, but in the consequences of men's natural endowments. And as men are differently endowed, "unequal amounts of benefit are implied," that is, "inequality is the primordial ideal suggested" (p. 37) by the notion of Justice. But why society should endeavor to guarantee to its members unequal stocks of happiness or misery it is not easy from the point of view of Justice alone to understand. If such inequality is needed for the preservation of the state, the need may be recognized without dignifying it with the name of Justice. It may be that free will is an illusion, and that our sense of Justice which demands the requital of desert will disappear along with it. But if so, the new deterministic ideal of Justice is not so likely to be satisfied by the inequalities of natural selection as by the equality heralded in the writings of Bentham and Mill and nowadays demanded by the socialistic reconstructors of society. Nature's award of good fortune to inherited abilities and of ill fortune to inherited disabilities has nothing to recommend it but the brute fact of its actuality. Mr. Spencer in an unwary moment even goes farther, and by implication renounces his own doctrine of Justice. "Could we," he says, "charge Nature with injustice, we might fitly say it is unjust that some should have natural endowments so much lower than others have" (p. 158). Can it then be just that they should be obliged to take the consequences of these smaller powers?

In short, what Mr. Spencer describes as the "positive element" in Justice — the element which he gets from the biological law of natural selection — is no part whatever of Justice. The so-called "negative element," the equal recognition of others' claims, gives the essential attribute of the notion. It matters not whether you concede to each the full consequences of his nature and conduct, or something entirely different; but whatever be conceded to one, a like allotment, unless the withholding of it is justified by special considerations, must be made to every other member of the community. Nothing more than this can be prescribed in the name of Justice. As much as this, however, may always be claimed. Hence Mr. Spencer's ultimate identification of Justice with equal freedom is inadequate; for not only in the apportionment of freedom, but in the apportionment of all other benefits and of burdens must Justice be realized. Such perfect Justice cannot exist in a society in which the material means of life and happiness are in large part already appropriated. But the facts need not blind us to the ideal, which, indeed, is gradually conquering the facts.

When we come to Mr. Spencer's deduction of material rights from Justice conceived as the law of equal freedom, we are forcibly reminded of the philosophizing of Hegel. The notion, according to Hegel, conceives, without being impregnated by experience, and bears a prolific offspring. Mr. Spencer's "law of equal freedom" unfolds into "several particular freedoms" or "rights." It is the Gang der Sache selbst! The categories, according to Hegel, must be just so many, neither more nor fewer. Mr. Spencer assures us that his table of Natural Rights is complete (p. 176). Hegel's Political Philosophy was an a priori vindication of the Prussian state; Mr. Spencer's is derived from — I suppose I should say is deduced with an eye upon — the ideals and practices of English legislators of the last generation. Of course, with these various points of agreement, there is a radical difference in standpoint. For Hegel the state, as compared with the citizen, was the more real, being as it were the substance of his spiritual life. Mr. Spencer holds that the individual has rights apart from the state, and that the state involves "deductions from the lives of each and all" (pp. 46, 63).

Of the various Natural Rights specified by Mr. Spencer, I think it must be said that not one of them is, or can be, deduced from the law of equal freedom. They are the conditions which have been found, in some cases, necessary, in others, expedient, for the maintenance of human society. They have been gradually evolved and formulated by mankind, as Mr. Spencer admirably illustrates. They are authenticated, not as Mr. Spencer supposes by reason, but solely by their conduciveness to the public welfare. We learn them from history, not from deduction; and we see at the same time that they are not universally applicable. The "right of free speech and publication" may at times be properly withheld, and I have not observed any censure of the Indian government for its recent withdrawal of the right from certain native writers. "The right of free exchange" exists nowhere in the world outside of Great Britain; and certainly American citizens are peculiarly sensitive to their rights. If we believed that "freedom of worship" imperilled the public welfare, no assertion of individual rights would prevent its abolition (cf. the great Mormon case, Reynolds v. United States). "The right to property" is one of the most sacred of rights; yet it may be modified or set aside for the good of the community, as is illustrated by recent land-legislation in England. Even "the right to life" is qualified by the state's need of soldiers. Instead, then, of acquiescing in the doctrine that the individual in virtue of his humanity, and without any regard to the state or society in which he lives, has certain inalienable rights, it might be held that the state is the source, the basis, and the regulator of every human liberty. The theory of natural rights or extra-state rights was no doubt a useful expedient in the eighteenth century, when the state was one, or a few persons who often acted in defiance of universal moral sentiment; but now that the state is the people in ultimate organization, even the utility of the doctrine is obsolete. Its logical outcome would be anarchy; for if the state does not mark out and protect the spheres of individual autonomy, each citizen must do it for himself. Nor would Mr. Spencer's supreme law of equal freedom be much of a control. It would justify, it seems to me, a right of retaliation, a right of compensatory theft, a right of reciprocal adultery, etc. It is true that "the intention of the formula is to fix a bound which may not be exceeded on either side" (pp. 46-7, cf. p. 115); but I fail to see how this intention can be realized save through the principle of the well-being of the community. The state, I should say, respects, protects, and checks the individual's impulse to act freely for the sake of the highest welfare of the society, and in conformity with its requirements. Under this supreme principle there has grown up, in the progress of civilization, a realm of individual liberty which is almost the same in every state of modern Christendom. This practical identity of individual rights and immunities within different states has led Mr. Spencer to the supposition that they are prior to the state and deducible by a priori methods of reasoning.

There is not space to speak at length of Mr. Spencer's doctrine of the functions of the state. It is of a piece with his theory of individual rights; and both doctrines proceed from the conception of man as naturally ἄπολις — a self-sufficient unit not adapted to political communion. To such a natural man it involves some sacrifice to be a member of a state; hence the functions of the government should be reduced to a minimum — to the single business of protecting the citizens. A different result, however, emerges if we adopt the Aristotelian, which is surely the correct, view of man as a being made and intended for the state. The state would then appear, not as a conventional, but a natural institution, in, and through which alone, man can lead a truly human life. It was no doubt formed for the protection of life; but, as Aristotle said, it exists for the improvement of life. Were there a world-state, its end would be the development and perfection of the life of mankind. It was this ultimate goal that Hegel probably had in mind when he defined morality and civilization — Sittlichkeit — as the end of the state. But the national state is the highest political community that has yet been reached. Its end is the development and perfection of the national genius and character. The means by which it accomplishes this end are liberty and government, which form, therefore, the proximate ends of the national state. The spheres of liberty and government can be determined only by experience of what conduces to the end of the national state. And if experience shows anything, it is that no hard and fast rules for restricting the activity of government can be laid down. What we see, on the contrary, is that, with every advance in civilization, as the end of the state grows larger and fuller, the means to its attainment become more numerous. The minimizers of governmental activity seem to deal with the primitive, rather than with the latest form of the state.

However much one differs from Mr. Spencer's views, one cannot but recognize the speculative grasp and subtlety of the attempt to affiliate ethics on biology, the originality of his conception of Justice, and the skilful concatenation with it of the natural-right theory of the liberties of the individual and the functions of the state. Representing the latest and the most interesting phase of his philosophy, the book deserves, and will doubtless receive, wide and careful study. No reader can fail of profit and instruction.

J. G. S.