Justice

June 16, 2020

PART 1

Justice is useful to society. This gives it its merit.

But is public utility the SOLE origin of justice? Are the benefits of justice the SOLE foundation of its merit?

Let us suppose that nature has bestowed on the human race such profuse ABUNDANCE of all EXTERNAL conveniencies, that, without any uncertainty in the event, without any care or industry on our part, every individual finds himself fully provided with whatever his most voracious appetites can want, or luxurious imagination wish or desire.

His natural beauty, we shall suppose, surpasses all acquired ornaments= the perpetual clemency of the seasons renders useless all clothes or covering= the raw herbage affords him the most delicious fare; the clear fountain, the richest beverage. No laborious occupation required= no tillage= no navigation. Music, poetry, and contemplation form his sole business= conversation, mirth, and friendship his sole amusement.

In such a happy state, every other social virtue would flourish, and increase tenfold. But the cautious, jealous virtue of justice would never once have been dreamed of.

Why would we need to divide goods if everyone has more than enough? Why create property when no one is threatened by loss?

Why call this object MINE, when upon the seizing of it by another, I need but stretch out my hand to possess myself to what is equally valuable?

In those cases, justice becomes totally useless and would just be for ceremony.

We see, even in the present necessitous condition of mankind, that, wherever any benefit is bestowed by nature in an unlimited abundance. , we leave it always in common among the whole human race, and make no subdivisions of right and property.

Water and air are the most necessary of all objects. No one makes a property of them. No one commits injustice by lavishly drinking water and breathing so much air.

In large, fertile countries with few people, land is seen in the same way. The defenders of the liberty of the seas cite the wideness of the oceans.

Some countries might establish property on water and not on land. But in such a case it is the water-areas that are scarce.

Imagine all humans filled with friendship and generosity that everyone has perfect fellow-feeling. In such a case, justice would be suspended by benevolence and property and obligatory contracts would not be thought of.

an extensive benevolence, nor would the divisions and barriers of property and obligation have ever been thought of.

Why should I bind another, by a deed or promise, to do something for me when he is always working towards my happiness?

Why raise fences between my neighbour’s field and mine, when we have a united interest and share everything?

In this case, every man is a second self to another. He would trust all his interests to the discretion of every man without jealousy, partition, or distinction.

The whole human race would form only one family where everything would be common property and be used freely and cautiously with a regard to the necessities of each individual.

In the present disposition of the human heart, it would, perhaps, be difficult to find complete instances of such enlarged affections; but still we may observe, that the case of families approaches towards it;

The stronger the mutual benevolence is among the individuals, the nearer it approaches; till all distinction of property be, in a great measure, lost and confounded among them. Between married persons, the cement of friendship is by the laws supposed so strong as to abolish all division of possessions; and has often, in reality, the force ascribed to it.

During the ardour of new enthusiasms, when every principle is inflamed into extravagance, the community of goods has frequently been attempted; and nothing but experience of its inconveniencies, from the returning or disguised selfishness of men, could make the imprudent fanatics adopt anew the ideas of justice and of separate property. So true is it, that this virtue derives its existence entirely from its necessary USE to the intercourse and social state of mankind.

To make this truth more evident, let us reverse the foregoing suppositions; and carrying everything to the opposite extreme, consider what would be the effect of these new situations.

Imagine society fall into a lack of all common necessities that the utmost frugality and industry cannot save the majority from perishing and everyone from extreme misery. The strict laws of justice then will be suspended to give way to the stronger motives of necessity and self-preservation.

Is it a crime for a shipwrecked people to seize whatever instrument of safety that they can get, and ignore the former limitations of property?

Or if a city besieged were perishing with hunger; can we imagine, that men will see any means of preservation before them, and lose their lives, from a scrupulous regard to what, in other situations, would be the rules of equity and justice?

The use and tendency of that virtue is to procure happiness and security, by preserving order in society= but where the society is ready to perish from extreme necessity, no greater evil can be dreaded from violence and injustice; and every man may now provide for himself by all the means, which prudence can dictate, or humanity permit.

The public, even in less urgent necessities, opens granaries, without the consent of proprietors; as justly supposing, that the authority of magistracy may, consistent with equity, extend so far= but were any number of men to assemble, without the tie of laws or civil jurisdiction; would an equal partition of bread in a famine, though effected by power and even violence, be regarded as criminal or injurious?

Suppose likewise, that it should be a virtuous man’s fate to fall into the society of ruffians, remote from the protection of laws and government; what conduct must he embrace in that melancholy situation?

He sees such a desperate rapaciousness prevail; such a disregard to equity, such contempt of order, such stupid blindness to future consequences, as must immediately have the most tragical conclusion, and must terminate in destruction to the greater number, and in a total dissolution of society to the rest.

He, meanwhile, can have no other expedient than to arm himself, to whomever the sword he seizes, or the buckler, may belong= To make provision of all means of defence and security= And his particular regard to justice being no longer of use to his own safety or that of others, he must consult the dictates of self-preservation alone, without concern for those who no longer merit his care and attention.

When any man, even in political society, renders himself by his crimes, obnoxious to the public, he is punished by the laws in his goods and person; that is, the ordinary rules of justice are, with regard to him, suspended for a moment, and it becomes equitable to inflict on him, for the BENEFIT of society, what otherwise he could not suffer without wrong or injury.

The rage and violence of public war; what is it but a suspension of justice among the warring parties, who perceive, that this virtue is now no longer of any USE or advantage to them? The laws of war, which then succeed to those of equity and justice, are rules calculated for the ADVANTAGE and UTILITY of that particular state, in which men are now placed. And were a civilized nation engaged with barbarians, who observed no rules even of war, the former must also suspend their observance of them, where they no longer serve to any purpose; and must render every action or recounter as bloody and pernicious as possible to the first aggressors.

Thus, the rules of equity or justice depend entirely on the particular state and condition in which men are placed, and owe their origin and existence to that utility, which results to the public from their strict and regular observance. Reverse, in any considerable circumstance, the condition of men= Produce extreme abundance or extreme necessity= Implant in the human breast perfect moderation and humanity, or perfect rapaciousness and malice= By rendering justice totally USELESS, you thereby totally destroy its essence, and suspend its obligation upon mankind.

The common situation of society is a medium amidst all these extremes. We are naturally partial to ourselves, and to our friends; but are capable of learning the advantage resulting from a more equitable conduct. Few enjoyments are given us from the open and liberal hand of nature; but by art, labour, and industry, we can extract them in great abundance. Hence the ideas of property become necessary in all civil society= Hence justice derives its usefulness to the public= And hence alone arises its merit and moral obligation.

These conclusions are so natural and obvious, that they have not escaped even the poets, in their descriptions of the felicity attending the golden age or the reign of Saturn.

The seasons, in that first period of nature, were so temperate, if we credit these agreeable fictions, that there was no necessity for men to provide themselves with clothes and houses, as a security against the violence of heat and cold= The rivers flowed with wine and milk= The oaks yielded honey; and nature spontaneously produced her greatest delicacies. Nor were these the chief advantages of that happy age. Tempests were not alone removed from nature; but those more furious tempests were unknown to human breasts, which now cause such uproar, and engender such confusion. Avarice, ambition, cruelty, selfishness, were never heard of= Cordial affection, compassion, sympathy, were the only movements with which the mind was yet acquainted. Even the punctilious distinction of MINE and THINE was banished from among the happy race of mortals, and carried with it the very notion of property and obligation, justice and injustice.

This POETICAL fiction of the GOLDEN AGE, is in some respects, of a piece with the PHILOSOPHICAL fiction of the STATE OF NATURE; only that the former is represented as the most charming and most peaceable condition, which can possibly be imagined; whereas the latter is painted out as a state of mutual war and violence, attended with the most extreme necessity. On the first origin of mankind, we are told, their ignorance and savage nature were so prevalent, that they could give no mutual trust, but must each depend upon himself and his own force or cunning for protection and security. No law was heard of= No rule of justice known= No distinction of property regarded= Power was the only measure of right; and a perpetual war of all against all was the result of men’s untamed selfishness and barbarity.

[Footnote= This fiction of a state of nature, as a state of war, was not first started by Mr. Hobbes, as is commonly imagined. Plato endeavours to refute an hypothesis very like it in the second, third, and fourth books de republica. Cicero, on the contrary, supposes it certain and universally acknowledged in the following passage. ‘Quis enim vestrum, judices, ignorat, ita naturam rerum tulisse, ut quodam tempore homines, nondum neque naturali neque civili jure descripto, fusi per agros ac dispersi vagarentur tantumque haberent quantum manu ac viribus, per caedem ac vulnera, aut eripere aut retinere potuissent?

Qui igitur primi virtute & consilio praestanti extiterunt, ii perspecto genere humanae docilitatis atque ingenii, dissipatos unum in locum congregarunt, eosque ex feritate illa ad justitiam ac mansuetudinem transduxerunt. Tum res ad communem utilitatem, quas publicas appellamus, tum conventicula hominum, quae postea civitates nominatae sunt, tum domicilia conjuncta, quas urbes dicamus, invento & divino & humano jure moenibus sepserunt. Atque inter hanc vitam, perpolitam humanitate, & llam immanem, nihil tam interest quam JUS atque VIS. Horum utro utinolimus, altero est utendum. Vim volumus extingui. Jus valeat necesse est, idi est, judicia, quibus omne jus continetur. Judicia displicent, ant nulla sunt. Vis dominetur necesse est. Haec vident omnes.’ Pro Sext. sec. 42.]

Whether such a condition of human nature could ever exist, or if it did, could continue so long as to merit the appellation of a STATE, may justly be doubted. Men are necessarily born in a family-society, at least; and are trained up by their parents to some rule of conduct and behaviour. But this must be admitted, that, if such a state of mutual war and violence was ever real, the suspension of all laws of justice, from their absolute inutility, is a necessary and infallible consequence.

The more we vary our views of human life, and the newer and more unusual the lights are in which we survey it, the more shall we be convinced, that the origin here assigned for the virtue of justice is real and satisfactory.

Were there a species of creatures intermingled with men, which, though rational, were possessed of such inferior strength, both of body and mind, that they were incapable of all resistance, and could never, upon the highest provocation, make us feel the effects of their resentment; the necessary consequence, I think, is that we should be bound by the laws of humanity to give gentle usage to these creatures, but should not, properly speaking, lie under any restraint of justice with regard to them, nor could they possess any right or property, exclusive of such arbitrary lords. Our intercourse with them could not be called society, which supposes a degree of equality; but absolute command on the one side, and servile obedience on the other. Whatever we covet, they must instantly resign= Our permission is the only tenure, by which they hold their possessions= Our compassion and kindness the only check, by which they curb our lawless will= And as no inconvenience ever results from the exercise of a power, so firmly established in nature, the restraints of justice and property, being totally USELESS, would never have place in so unequal a confederacy.

This is plainly the situation of men, with regard to animals; and how far these may be said to possess reason, I leave it to others to determine. The great superiority of civilized Europeans above barbarous Indians, tempted us to imagine ourselves on the same footing with regard to them, and made us throw off all restraints of justice, and even of humanity, in our treatment of them. In many nations, the female sex are reduced to like slavery, and are rendered incapable of all property, in opposition to their lordly masters. But though the males, when united, have in all countries bodily force sufficient to maintain this severe tyranny, yet such are the insinuation, address, and charms of their fair companions, that women are commonly able to break the confederacy, and share with the other sex in all the rights and privileges of society.

Were the human species so framed by nature as that each individual possessed within himself every faculty, requisite both for his own preservation and for the propagation of his kind= Were all society and intercourse cut off between man and man, by the primary intention of the supreme Creator= It seems evident, that so solitary a being would be as much incapable of justice, as of social discourse and conversation. Where mutual regards and forbearance serve to no manner of purpose, they would never direct the conduct of any reasonable man. The headlong course of the passions would be checked by no reflection on future consequences. And as each man is here supposed to love himself alone, and to depend only on himself and his own activity for safety and happiness, he would, on every occasion, to the utmost of his power, challenge the preference above every other being, to none of which he is bound by any ties, either of nature or of interest. But suppose the conjunction of the sexes to be established in nature, a family immediately arises; and particular rules being found requisite for its subsistence, these are immediately embraced; though without comprehending the rest of mankind within their prescriptions. Suppose that several families unite together into one society, which is totally disjoined from all others, the rules, which preserve peace and order, enlarge themselves to the utmost extent of that society; but becoming then entirely useless, lose their force when carried one step farther. But again suppose, that several distinct societies maintain a kind of intercourse for mutual convenience and advantage, the boundaries of justice still grow larger, in proportion to the largeness of men’s views, and the force of their mutual connexions. History, experience, reason sufficiently instruct us in this natural progress of human sentiments, and in the gradual enlargement of our regards to justice, in proportion as we become acquainted with the extensive utility of that virtue.

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