Maarten Maartensz

Text Philosophy - Mill - Utilitarianism - Chapter V
 



Notes to Chapter V:
On the Connection between Justice and Utility.


Note on these notes

These notes date from december 2006 - january 2007, based on notes in my paper copy of "Utilitarianism" that date from 1977.

The format is that I quote the text of Mill that I comment in blue, and write my own notes in black, with a "Back" at the end of every note that moves the reader back - provided he or she is on line, or has downloaded the relevant files in similar directories, or uses a CD of my site - to the beginning of the quotation the note is concerned with. (See also the TOC.)

The result is that my quotations + my notes take more space than Mill's original text, but one advantage of the procedure I use is that the reader can read my quotations + my notes independently from the text, yet be moved thence - provisos as above - with a single click.


[1] Chapter V: On the Connection between Justice and Utility.

At this point one may believe that, after my remarks to the previous four chapters, there is little reason to continue my notes.

But I think Mill's opinions are also interesting if mistaken, and in this last chapter Mill tries to solve a problem that is clarified by a note of H.B. Acton:

"A major difficulty in the Utilitarian philosophy is that the general diminution of unhappiness and promotion of the general happiness seem to be compatible with a great deal of injustice. Can justice in the distribution of happiness be somehow derived from the Principle of Utility itself? Mill thinks it can be." (p. 421)

In any case, part of the difficulty will be similar to the difficulty tabulated in Note [1] to Chapter II, where I listed the four possible logical combinations of goodness and pleasure, which can be redrawn for the present case with resp. justice and happiness (a.k.a. utility, by utilitarians).      Back.


[2] IN ALL ages of speculation, one of the strongest obstacles to the reception of the doctrine that Utility or Happiness is the criterion of right and wrong, has been drawn from the idea of Justice.

And the main two reasons why should be obvious:

First, why assume that what pleases coincides with what is just, or indeed has much to do with it, in as much as everyone knows that what is deemed fair need not at all be pleasurable, and vice versa, and indeed the two are often contradictory.

And second, it would seem that a considerable part of justice, as it is practised, consists in punishing those who transgress the laws, and this seems quite incompatible with making them happy, since it amounts to hurting them in some way.       Back.


[3] That a feeling is bestowed on us by Nature, does not necessarily legitimate all its promptings.

Of course, and also if it is not "bestowed on us by Nature".       Back.


[4] Mankind are always predisposed to believe that any subjective feeling, not otherwise accounted for, is a revelation of some objective reality.

This I don't believe. Surely, it has been obvious to most for a very long time that "any subjective feeling" may have many different causes, and that what one calls a "subjective feeling" is so called because one tends to believe that it arises mainly or mostly from the person who has it?       Back.


[5] To throw light upon this question, it is necessary to attempt to ascertain what is the distinguishing character of justice, or of injustice: what is the quality, or whether there is any quality, attributed in common to all modes of conduct designated as unjust (for justice, like many other moral attributes, is best defined by its opposite), and distinguishing them from such modes of conduct as are disapproved, but without having that particular epithet of disapprobation applied to them.

This is indeed the right question to pose, though readers of Wittgenstein (who was born after Mill died) may insist that "justice" may be a concept like "game", for which there is no single adequate definition.        Back.


[6] To find the common attributes of a variety of objects, it is necessary to begin by surveying the objects themselves in the concrete. Let us therefore advert successively to the various modes of action, and arrangements of human affairs, which are classed, by universal or widely spread opinion, as Just or as Unjust.

Here Mill again follows the standard logical procedure to find out what a word means.     Back.


[7] In the first place, it is mostly considered unjust to deprive any one of his personal liberty, his property, or any other thing which belongs to him by law. Here, therefore, is one instance of the application of the terms just and unjust in a perfectly definite sense, namely, that it is just to respect, unjust to violate, the legal rights of any one. But this judgment admits of several exceptions (..)

Indeed, but Mill takes rather a lot for granted, namely that the system of law that is in place in fact does comprehend the protection of "his personal liberty, his property", and neither may be so, for example in a communist dictatorship.

Apart from that, Mill seems right: What people call "justice" is intimately connected to what they hold are or should be legal or moral rights. For moral rights, see [9].     Back.


[8] Among these diversities of opinion, it seems to be universally admitted that there may be unjust laws, and that law, consequently, is not the ultimate criterion of justice (..)

Indeed, and therefore it makes little sense to equalize justice and the law, even if in any given society those upholding the laws and those in government usually pretend so.    Back.


[9] When, however, a law is thought to be unjust, it seems always to be regarded as being so in the same way in which a breach of law is unjust, namely, by infringing somebody's right; which, as it cannot in this case be a legal right, receives a different appellation, and is called a moral right. We may say, therefore, that a second case of injustice consists in taking or withholding from any person that to which he has a moral right.

Indeed, and this is a useful and good point: Justice is relative to presumed rights, also if these presumed rights are not part of, or inconsistent with, the existing system of laws.

 

 

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[10] Thirdly, it is universally considered just that each person should obtain that (whether good or evil) which he deserves; and unjust that he should obtain a good, or be made to undergo an evil, which he does not deserve. This is, perhaps, the clearest and most emphatic form in which the idea of justice is conceived by the general mind. As it involves the notion of desert, the question arises, what constitutes desert? Speaking in a general way, a person is understood to deserve good if he does right, evil if he does wrong; and in a more particular sense, to deserve good from those to whom he does or has done good, and evil from those to whom he does or has done evil. The precept of returning good for evil has never been regarded as a case of the fulfilment of justice, but as one in which the claims of justice are waived, in obedience to other considerations.

Yes, and there is a question that is related to "what constitutes desert?", namely: Who has the right (!) to decide that someone does have "desert", or merit, or whatever it is called, and what that merit entitles somebody who has it to?

The rest of what Mill says seems to be true as far as it goes, but he forgets to mention that many people - like the Athenians in conflict with other Greek city-states, for which see Thucydides - had very local and relative  conceptions of what "justice" is: Justice is what serves our community; injustice what goes against it. And indeed the same holds in other cases: "Justice" and its related terms often are used to refer to what the speaker desires.       Back.


[11] Fourthly, it is confessedly unjust to break faith with any one: to violate an engagement, either express or implied, or disappoint expectations raised by our conduct, at least if we have raised those expectations knowingly and voluntarily. Like the other obligations of justice already spoken of, this one is not regarded as absolute, but as capable of being overruled by a stronger obligation of justice on the other side (..)

Indeed, and this reflects the fact that without kept promises and fulfilled contracts there can be hardly any human society.       Back.


[12] Fifthly, it is, by universal admission, inconsistent with justice to be partial; to show favour or preference to one person over another, in matters to which favour and preference do not properly apply. Impartiality, however, does not seem to be regarded as a duty in itself, but rather as instrumental to some other duty; for it is admitted that favour and preference are not always censurable (..)

See under [14] for impartiality.     Back.


[13] A person would be more likely to be blamed than applauded for giving his family or friends no superiority in good offices over strangers, when he could do so without violating any other duty (..)

Indeed, this seems to be the dominant feeling in countries with much corruption: That it is unfair, unjust, immoral, not right, if someone who has a position of power does not use this position to help his family and friends profit from it as well.    Back.


[14] Impartiality, in short, as an obligation of justice, may be said to mean, being exclusively influenced by the considerations which it is supposed ought to influence the particular case in hand (..)

This has the difficulty that it involves "ought", and so makes Mill's explanation seem to be per obscurum. It seems more sensible to say that impartiality as regards justice involves, even if a judge or jury is supposed to decide for or against a defendant, that all parties in a legal case have equal opportunities to make their case and to present evidence, and that the judge and the jury are free from special bias for or against the defendant.      Back.


[15] Nearly allied to the idea of impartiality is that of equality; which often enters as a component part both into the conception of justice and into the practice of it, and, in the eyes of many persons, constitutes its essence. But in this, still more than in any other case, the notion of justice varies in different persons, and always conforms in its variations to their notion of utility. Each person maintains that equality is the dictate of justice, except where he thinks that expediency requires inequality. The justice of giving equal protection to the rights of all, is maintained by those who support the most outrageous inequality in the rights themselves. Even in slave countries it is theoretically admitted that the rights of the slave, such as they are, ought to be as sacred as those of the master (..)

Here I am mainly concerned with insisting that "impartiality" and "equality" are logically quite distinct, and need not be allied at all, as indeed also emerges from Mill's example of "the rights of the slave" - as he might have first read about in Plato's "Eutyphro".

In brief: Justice may be meeted out with great "impartiality" also under a caste system, where there is no "equality" at all.       Back.


[16] Those who think that utility requires distinctions of rank, do not consider it unjust that riches and social privileges should be unequally dispensed (..)

Indeed, and it should be noted in the present context that while there is much to complain of in most "distinctions of rank", even extreme levellers, communists and anarchists rarely disagree if they get privileges, e.g. because they are such exemplary levellers, communists or anarchists.

Also, if there are differences in merit of people, it seems just that there are differences in rewards between people, depending on merit, and indeed more specifically just in that if one reward is greater than another it is because its associated merit is greater.

 

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[17] Whoever thinks that government is necessary, sees no injustice in as much inequality as is constituted by giving to the magistrate powers not granted to other people. Even among those who hold levelling doctrines, there are as many questions of justice as there are differences of opinion about expediency.

Indeed, and it should be noted - also see ... - that "the magistrate" of justice does his job mainly by hurting people who broke the law.      Back.


[18] Some Communists consider it unjust that the produce of the labour of the community should be shared on any other principle than that of exact equality; others think it just that those should receive most whose wants are greatest; while others hold that those who work harder, or who produce more, or whose services are more valuable to the community, may justly claim a larger quota in the division of the produce. And the sense of natural justice may be plausibly appealed to in behalf of every one of these opinions.

Indeed, and it is noteworthy that "The Communist Manifesto", by Marx and Engels, was published in 1848, some 15 years before Mill published his "Utilitarianism", and also that Mill, at least later in his life, was rather sympathetic to the idea of socialism, without ever agreeing completely to it.

Here Mill is right in, effectively, insisting that opposing standards for what is just may be appealed to in the name of justice, and he might have added that in any case general moral principles often require considerable casuistry to be fairly, or justly, applied to cases they nominally apply to.       Back.


[19] Among so many diverse applications of the term justice, which yet is not regarded as ambiguous, it is a matter of some difficulty to seize the mental link which holds them together (..)

This is quite true, and Mill does now start an interesting list of marks of justice.     Back.


[20] In most, if not in all, languages, the etymology of the word which corresponds to Just, points distinctly to an origin connected with the ordinances of law. Justum is a form of jussum, that which has been ordered. Jus is of the same origin. Dikaion comes directly from dike, a suit at law. Originally, indeed, it meant only the mode or manner of doing things, but it early came to mean the prescribed manner; that which the recognised authorities, patriarchical, judicial, or political, would enforce. Recht, from which came right and righteous, is synonymous with law.

This seems mostly correct etymology, and Mill is quite right to list it.       Back.


[21] The courts of justice, the administration of justice, are the courts and the administration of law. La Justice, in French, is the established term for judicature. I am not committing the fallacy imputed with some show of truth to Horne Tooke, of assuming that a word must still continue to mean what it originally meant. Etymology is slight evidence of what the idea now signified is, but the very best evidence of how it sprang up. There can, I think, be no doubt that the idée mère, the primitive element, in the formation of the notion of justice, was conformity to law.

First, an editorial note. It seems that in the paper edition I use - see the TOC for its details - the two sentences between "judicature." and "There" are completely missing, and indeed the only place in its index where Horne Tooke is mentioned refers to a page where his name does not occur.

Second, it seems Mill is right in his last statement in the quotation: "the idée mère, the primitive element, in the formation of the notion of justice, was conformity to law".       Back.


[22] And hence the sentiment of injustice came to be attached, not to all violations of law, but only to violations of such laws as ought to exist, including such as ought to exist, but do not; and to laws themselves, if supposed to be contrary to what ought to be law.

Indeed, and here there is the English term "right", as in "judicial or moral right".      Back.


[23] It is true that mankind consider the idea of justice and its obligations as applicable to many things which neither are, nor is it desired that they should be, regulated by law.

Yes, and here there is another latin term for the wider conception of duty and obligation, namely "mores", say "moral habits", to combine two meanings of the word into one. (Dutch: "zeden"; German: "Sitten").     Back.


[24] Thus the idea of legal constraint is still the generating idea of the notion of justice, though undergoing several transformations (..)

I think here one can be more precise:

It seems everybody who has thought about it at all in a minimally rational fashion, has agreed that any human society can endure only if rules of behavior are agreed on or imposed, that lay down what the members of the society should and should not do in certain circumstances, and that these rules should serve at least two ends: To help the society endure, and to assure that its members treat each other in accordance with these rules, whatever they are.

Furthermore, the rules of behavior that are part of the law - understood as: published rules of behavior, maintained by special social institutions - are maintained mostly by punishments or threats of punishments, and not by rewards.       Back.


[25] The above is, I think, a true account, as far as it goes, of the origin and progressive growth of the idea of justice. But we must observe, that it contains, as yet, nothing to distinguish that obligation from moral obligation in general. For the truth is, that the idea of penal sanction, which is the essence of law, enters not only into the conception of injustice, but into that of any kind of wrong. We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow-creatures; if not by opinion, by the reproaches of his own conscience. This seems the real turning point of the distinction between morality and simple expediency. It is a part of the notion of Duty in every one of its forms, that a person may rightfully be compelled to fulfil it. Duty is a thing which may be exacted from a person, as one exacts a debt. Unless we think that it may be exacted from him, we do not call it his duty.

Yes, this seems to me to be true: Rights and duties are correlatives, in the sense that, in a given society, a right is what others in society must do for one or give one legally because of one's position in the society, and a duty is what one must legally or morally do for others in a society one belongs to because of one's own and their position in the society.

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[26] There are other things, on the contrary, which we wish that people should do, which we like or admire them for doing, perhaps dislike or despise them for not doing, but yet admit that they are not bound to do; it is not a case of moral obligation; we do not blame them, that is, we do not think that they are proper objects of punishment. How we come by these ideas of deserving and not deserving punishment, will appear, perhaps, in the sequel; but I think there is no doubt that this distinction lies at the bottom of the notions of right and wrong (..)

Indeed, and here Mill touches on a distinction that can be drawn in terms of legal rules (that one must conform to, on threat of punishment) and moral rules (that one should conform to, and is rewarded or admired for if done).

This distinction in those terms is correct as far as it goes, though often a considerable part of the moral rules that are not upheld in law are nevertheless maintained in a society by kinds of punishments.       Back.


[27] This, therefore, being the characteristic difference which marks off, not justice, but morality in general, from the remaining provinces of Expediency and Worthiness; the character is still to be sought which distinguishes justice from other branches of morality.

Indeed, though we have a clue: Justice seems to refer to - practically, and extensionally - those rules of behavior which are maintained by a government (authority, leadership), and which come with a punishment for not abiding by these rules, if they apply to one. But then one may ask again what this is or may be due to, and Mill is going to answer that question.       Back.


[28] Now it is known that ethical writers divide moral duties into two classes, denoted by the ill-chosen expressions, duties of perfect and of imperfect obligation; the latter being those in which, though the act is obligatory, the particular occasions of performing it are left to our choice, as in the case of charity or beneficence (..)

This is a good distinction, indeed drawn with an unfortunate terminology. In everyday terms it comes to this: What is morally good to do (independent from a particular system of morals, mostly) comes in two forms, namely what one must do in order to be good, and what is good to do without it being necessary in order to be good.       Back.


[29] In the more precise language of philosophic jurists, duties of perfect obligation are those duties in virtue of which a correlative right resides in some person or persons; duties of imperfect obligation are those moral obligations which do not give birth to any right.

Yes, apart from "do not give birth", which should have been replaced by "are not based on".       Back.


[30] In our survey of the various popular acceptations of justice, the term appeared generally to involve the idea of a personal right - a claim on the part of one or more individuals, like that which the law gives when it confers a proprietary or other legal right. Whether the injustice consists in depriving a person of a possession, or in breaking faith with him, or in treating him worse than he deserves, or worse than other people who have no greater claims, in each case the supposition implies two things - a wrong done, and some assignable person who is wronged.

Yes, but it should be stressed that "the idea of a personal right" that is involved is a moral right (see [9]) that need not be part of the law, and that even may be in contradiction with the current laws.

And it should also be remarked that there need not be "some assignable person who is wronged", for example in case driving too fast without hurting anyone, or in case of the rights of future generations on an earth that is not polluted.

But in general terms Mill seems right: Ordinarily, talk of "justice" presupposes a supposed right of some person or persons, and a correlative duty of other persons to assure that right can be reasonably exercised by the person or persons.       Back.


[31] It seems to me that this feature in the case - a right in some person, correlative to the moral obligation - constitutes the specific difference between justice, and generosity or beneficence. Justice implies something which it is not only right to do, and wrong not to do, but which some individual person can claim from us as his moral right. No one has a moral right to our generosity or beneficence, because we are not morally bound to practise those virtues towards any given individual.

Yes, but with the qualification that the person who judges that something is or should be a matter of "justice", agrees with the implied or supposed rights. Also, with regards to Mill's last statement, it may be doubted whether this is moral for a utilitarian, if utilitarians are morally bound to seek for the greatest happiness of the greatest number.

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[32] Wherever there is right, the case is one of justice, and not of the virtue of beneficence: and whoever does not place the distinction between justice and morality in general, where we have now placed it, will be found to make no distinction between them at all, but to merge all morality in justice.

Yes, with the addition that there also are quite a few, especially among the rich and powerful, who attempt to merge all justice in morality, and who should like to see all the justice that they meet out not as a duty but as a beneficence on their part (that they may claim later is in need of repayment, on a quid pro quo schema).       Back.


[33] We have seen that the two essential ingredients in the sentiment of justice are, the desire to punish a person who has done harm, and the knowledge or belief that there is some definite individual or individuals to whom harm has been done. Now it appears to me, that the desire to punish a person who has done harm to some individual is a spontaneous outgrowth from two sentiments, both in the highest degree natural, and which either are or resemble instincts; the impulse of self-defence, and the feeling of sympathy.

Yes, and it pleases me that Mill here seems to be quite realistic about punishment and the desire for punishment, wholly apart from moral considerations.       Back.


[34] It is natural to resent, and to repel or retaliate, any harm done or attempted against ourselves, or against those with whom we sympathise. The origin of this sentiment it is not necessary here to discuss. Whether it be an instinct or a result of intelligence, it is, we know, common to all animal nature for every animal tries to hurt those who have hurt, or who it thinks are about to hurt, itself or its young.

Indeed, and part of my reasons to excerpt this and the previous remark is that I live in a country (Holland) where this has been denied by very many for at least 25 years: The desire for punishment and retaliation was deemed by many Dutch intellectuals, mostly of real or pretended leftist convictions, to be bad in itself, reprehensible, and somehow not properly human - whereas Mill is quite right that, apart from moral ideals, this desire to harm those we believe to have harmed us is very natural for many mammals, including the animals called human.       Back.


[35] Human beings, on this point, only differ from other animals in two particulars. First, in being capable of sympathising, not solely with their offspring, or, like some of the more noble animals, with some superior animal who is kind to them, but with all human, and even with all sentient, beings. Secondly, in having a more developed intelligence, which gives a wider range to the whole of their sentiments, whether self-regarding or sympathetic.

Actually, I think this is somewhat mistaken or at least incomplete, and it is important to state in which way:

It seems to me that human moral and ethical ideas and values for the largest part, even if they are also based on characteristics, needs and sentiments other socially living animals that take care of their young share in some sense, are typically human, namely in so far as they depend on and require linguistic abilities, and the intellect these require.

 

 

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[36] The same superiority of intelligence joined to the power of sympathising with human beings generally, enables him to attach himself to the collective idea of his tribe, his country, or mankind, in such a manner that any act hurtful to them, raises his instinct of sympathy, and urges him to resistance.

Yes, but as I argued before - see [5n] remark D in Chapter II - the rights and duties to one's self, friends or family, "his tribe, his country, or mankind", are actually, if only for practical and emotional reasons, four different kinds of rights and duties.     Back.


[37] The sentiment of justice, in that one of its elements which consists of the desire to punish, is thus, I conceive, the natural feeling of retaliation or vengeance, rendered by intellect and sympathy applicable to those injuries, that is, to those hurts, which wound us through, or in common with, society at large. This sentiment, in itself, has nothing moral in it; what is moral is, the exclusive subordination of it to the social sympathies, so as to wait on and obey their call. For the natural feeling would make us resent indiscriminately whatever any one does that is disagreeable to us; but when moralised by the social feeling, it only acts in the directions conformable to the general good (..)

This seems to me mistaken in at least two points.

First, concerning the first sentence, which is about the "sentiment of justice": I don't think that this is wholly based on "the natural feeling of retaliation or vengeance".

This "natural feeling" seems involved, but there also seems to be another "natural feeling" involved, even if that is more human and humane, namely that of equity or fairness or fair sharing, which has to do with making no difference without special reason. A simple example of this is that even small toddlers find it acceptable and intuitively fair and honest if k cookies of the same kind are divided over k toddlers of the same kind by giving each toddler one cookie.

Second, it is very necessary to note about the last sentence of the quoted passage that the sentiment of justice "when moralised by the social feeling, it only acts in the directions conformable to" what in the society this happens in is accepted to be "the general good" - which very well may be to hurt, abuse, exploit or exterminate people not belonging to that society.

And this is again a difficulty in Mill's views of the kind mentioned under [36].

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[38] (..) a person whose resentment is really a moral feeling, that is, who considers whether an act is blamable before he allows himself to resent it (..)

Such a person seems rather saintly to me, and it also seems to me that moral persons may be excused if they merely are such as to seriously investigate whether what they resent is indeed morally blameable by their own norms.       Back.


[39] If he is not feeling this - if he is regarding the act solely as it affects him individually - he is not consciously just; he is not concerning himself about the justice of his actions.

It seems that many can be deluded or dishonest in this respect, in as much as it seems very normal for persons to complain that behavior of others that affects themselves negatively "therefore" and "thereby" is immoral and unjust.

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[40] To recapitulate: the idea of justice supposes two things; a rule of conduct, and a sentiment which sanctions the rule. The first must be supposed common to all mankind, and intended for their good. The other (the sentiment) is a desire that punishment may be suffered by those who infringe the rule. There is involved, in addition, the conception of some definite person who suffers by the infringement (..)

For my part it seems that "the idea of justice" seems to involve reference to the following five things:

- some conception of human nature
- some ideas and ideals of human society
- some conceptions of rights and correlative duties
- some institution or authority to maintain rights and duties
- some basic ideas of rewards, punishments and fairness 

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[41] And the sentiment of justice appears to me to be, the animal desire to repel or retaliate a hurt or damage to oneself, or to those with whom one sympathises, widened so as to include all persons, by the human capacity of enlarged sympathy, and the human conception of intelligent self-interest. From the latter elements, the feeling derives its morality; from the former, its peculiar impressiveness, and energy of self-assertion.

Here Mill seems to try to be realistic, especially at the start of the selection, but he does not very well succeed in the rest.

First, while I agree a desire for relatiation and revenge seem to form a considerable part of "the sentiment of justice", this need not be so in principle, for in principle all that is needed is the true belief that people are strongly motivated by pain, and that therefore one strong motive for them to abide by the law, whatever it is, is to hurt them if they break the law.

Second, as I noted under [37], "the sentiment of justice" is not restricted, in humans, to vengeance or retaliation, but also to some basic ideas and feelings about fair sharing, that are connected with the human propensity to attribute similar feelings, needs, capacities and a mentality of their own to other human beings. 

Third, the main problem is again that widening "so as to include all persons" as mentioned in [36] and outlined in [5n] remark D in Chapter II.

 

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[42] I have, throughout, treated the idea of a right residing in the injured person, and violated by the injury, not as a separate element in the composition of the idea and sentiment, but as one of the forms in which the other two elements clothe themselves. These elements are, a hurt to some assignable person or persons on the one hand, and a demand for punishment on the other.

This may be psychologically correct, but it seems to me that for human beings more is involved in the notion of rights. See under [40].

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[43] When we call anything a person's right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion. If he has what we consider a sufficient claim, on whatever account, to have something guaranteed to him by society, we say that he has a right to it. If we desire to prove that anything does not belong to him by right, we think this done as soon as it is admitted that society ought not to take measures for securing it to him, but should leave him to chance, or to his own exertions.

Yes, but with an addition to the last statement: Or to the beneficence of others. (See ....)        Back.


[44] To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. If the objector goes on to ask, why it ought? I can give him no other reason than general utility.

Mill's reason is of course wholly in line with his utilitarianism, but it should be noted, again, that a consideranly better reason than Mill gives at this point, even for those of utilitarian ethical convictions, is not "no other reason than general utility" but rather "because that society exists to maintain these rights for those people".

This reason is far more realistic; generally true; and the sort of answer most intelligent people will eventually arrive at. And then the utilitarians are free to insist that rights and society exist in order to help the members of the society to realize their interests and to become happy, if possible, whereas non-utilitarians can give other reasons.     Back.


[45] If that expression does not seem to convey a sufficient feeling of the strength of the obligation, nor to account for the peculiar energy of the feeling, it is because there goes to the composition of the sentiment, not a rational only, but also an animal element, the thirst for retaliation; and this thirst derives its intensity, as well as its moral justification, from the extraordinarily important and impressive kind of utility which is concerned. The interest involved is that of security, to every one's feelings the most vital of all interests. All other earthly benefits are needed by one person, not needed by another; and many of them can, if necessary, be cheerfully foregone, or replaced by something else; but security no human being can possibly do without on it we depend for all our immunity from evil, and for the whole value of all and every good, beyond the passing moment; since nothing but the gratification of the instant could be of any worth to us, if we could be deprived of anything the next instant by whoever was momentarily stronger than ourselves.

This is true and important, and indeed I can continue my note to the previous selection, namely as follows:

Since human society exists, in so far as it is a conscious creation or is consciously maintained, to to help the members of the society to realize their interests by mutual cooperation and mutual protection, the first and basic right in any society is that its members be protected from harm, and can live in the security that, as long as their society exists in an orderly fashion, they will be protected from all illegitimate violence and threats.

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[46] Our notion, therefore, of the claim we have on our fellow-creatures to join in making safe for us the very groundwork of our existence, gathers feelings around it so much more intense than those concerned in any of the more common cases of utility, that the difference in degree (as is often the case in psychology) becomes a real difference in kind. The claim assumes that character of absoluteness, that apparent infinity, and incommensurability with all other considerations, which constitute the distinction between the feeling of right and wrong and that of ordinary expediency and inexpediency. The feelings concerned are so powerful, and we count so positively on finding a responsive feeling in others (all being alike interested), that ought and should grow into must, and recognised indispensability becomes a moral necessity, analogous to physical, and often not inferior to it in binding force.

Mill argues here in a psychological way, which is all right as far as it goes, but I believe that my note under [45] is more to the point: "the claim we have on our fellow-creatures to join in making safe for us the very groundwork of our existence" is simply the basis of what human society is for, and the necessary condition for benefitting from the chances it gives for mutual cooperation.       Back.


[47] If the preceding analysis, or something resembling it, be not the correct account of the notion of justice; if justice be totally independent of utility, and be a standard per se, which the mind can recognise by simple introspection of itself; it is hard to understand why that internal oracle is so ambiguous and why so many things appear either just or unjust, according to the light in which they are regarded.

Indeed - but then the same question may be asked about utilitarianism: If that is so obvious a system of morality, then why have so many disagreed with it?

The general answer to this question is simple, and one that is difficult to harmonize with utilitarianism: Because different people may have different values or different ends or different priorities, or all of these at once.

And furthermore, even those who agree with Mill that the main concern of human society is, or should be, the well-being or happiness of its members, or at least their protection from harm, pain and suffering, have disagreed much about how to bring this about, and what this would consist in.

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[48] One would suppose from this that on questions of justice there could be no controversy; that if we take that for our rule, its application to any given case could leave us in as little doubt as a mathematical demonstration. So far is this from being the fact, that there is as much difference of opinion, and as much discussion, about what is just, as about what is useful to society. Not only have different nations and individuals different notions of justice, but in the mind of one and the same individual, justice is not some one rule, principle, or maxim, but many (..)

See under [44], [45], [46] and [47] for my own answer.       Back.


[49] Again, when the legitimacy of inflicting punishment is admitted, how many conflicting conceptions of justice come to light in discussing the proper apportionment of punishments to offences. No rule on the subject recommends itself so strongly to the primitive and spontaneous sentiment of justice, as the lex talionis, an eye for an eye and a tooth for a tooth. Though this principle of the Jewish and of the Mahometan law has been generally abandoned in Europe as a practical maxim, there is, I suspect, in most minds, a secret hankering after it (..)

Indeed - which incidentally also shows that the happiness of others is often not much of a human consideration, and certainly not if the others are supposed to have hurt us, or those we sympathize with.        Back.


[50] With many, the test of justice in penal infliction is that the punishment should be proportioned to the offence; meaning that it should be exactly measured by the moral guilt of the culprit (whatever be their standard for measuring moral guilt): the consideration, what amount of punishment is necessary to deter from the offence, having nothing to do with the question of justice, in their estimation: while there are others to whom that consideration is all in all (..)

These are indeed two ends of the law: Punishment and deterrence. Whether the one or the other should be the end of the law has been much discussed, it seems with little profit, since both ends seem to be involved usually, and in either case my note [41] applies. Also, in practice it seems to usually to come to: One punishes in order to deter, and one can often only effectively deter by punishing.       Back.


[51] How many, again, and how irreconcilable, are the standards of justice to which reference is made in discussing the repartition of taxation.

True, and the main reason for this fact is one that Mill has not at all discussed properly, although it is very important for morals and ethics: That different people have different interests, different ends, and different priorities, which they all seek to satisfy and uphold in the one common world they all live in, for which reason the happiness of one person or group is quite often opposed to or incompatible with the happiness of another person or group.

Here it is also relevant to observe the following:

Much of what human beings desire gets distributed on the basis of the principle of zero-sum games: You win what I loose, and vice versa. And this is often not compatible with fairness, equality, equity or other principles of justice or moral rightness.       Back.


[52] While I dispute the pretensions of any theory which sets up an imaginary standard of justice not grounded on utility, I account the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality. Justice is a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life; and the notion which we have found to be of the essence of the idea of justice, that of a right residing in an individual implies and testifies to this more binding obligation.

Well, I have disagreed with the claim formulated in the first of Mill's statements in the quoted statement, but will leave this, and only refer the reader to the TOC and my notes to the first four chapters.

 

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[53] The moral rules which forbid mankind to hurt one another (in which we must never forget to include wrongful interference with each other's freedom) are more vital to human well-being than any maxims, however important, which only point out the best mode of managing some department of human affairs. They have also the peculiarity, that they are the main element in determining the whole of the social feelings of mankind. It is their observance which alone preserves peace among human beings: if obedience to them were not the rule, and disobedience the exception, every one would see in every one else an enemy, against whom he must be perpetually guarding himself.

 

 

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[54] Thus the moralities which protect every individual from being harmed by others, either directly or by being hindered in his freedom of pursuing his own good, are at once those which he himself has most at heart, and those which he has the strongest interest in publishing and enforcing by word and deed. It is by a person's observance of these that his fitness to exist as one of the fellowship of human beings is tested and decided; for on that depends his being a nuisance or not to those with whom he is in contact.

Yes, but with this rather important qualification that this would be so in a mostly just society, where most are mostly free to do and say as they please, and to work for their own interests, while they are protected from harm, discrimination or arbitraty arrest.

For people who live(d) in a socialist or fascist dictatorship this is quite different, and comes with the additional complication that in such states many ordinary moral, legal and political terms get redefined, so that in practice they mean the opposite of what they would mean in other kinds of society.

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[55] The most marked cases of injustice, and those which give the tone to the feeling of repugnance which characterises the sentiment, are acts of wrongful aggression, or wrongful exercise of power over some one; the next are those which consist in wrongfully withholding from him something which is his due; in both cases, inflicting on him a positive hurt, either in the form of direct suffering, or of the privation of some good which he had reasonable ground, either of a physical or of a social kind, for counting upon.

Indeed.

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[56] The same powerful motives which command the observance of these primary moralities, enjoin the punishment of those who violate them; and as the impulses of self-defence, of defence of others, and of vengeance, are all called forth against such persons, retribution, or evil for evil, becomes closely connected with the sentiment of justice, and is universally included in the idea. Good for good is also one of the dictates of justice; and this, though its social utility is evident, and though it carries with it a natural human feeling, has not at first sight that obvious connection with hurt or injury, which, existing in the most elementary cases of just and unjust, is the source of the characteristic intensity of the sentiment. But the connection, though less obvious, is not less real.

Well, perhaps - but see [41] and note that the maintenance of the law....

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[57] He who accepts benefits, and denies a return of them when needed, inflicts a real hurt, by disappointing one of the most natural and reasonable of expectations, and one which he must at least tacitly have encouraged, otherwise the benefits would seldom have been conferred. The important rank, among human evils and wrongs, of the disappointment of expectation, is shown in the fact that it constitutes the principal criminality of two such highly immoral acts as a breach of friendship and a breach of promise. Few hurts which human beings can sustain are greater, and none wound more, than when that on which they habitually and with full assurance relied, fails them in the hour of need; and few wrongs are greater than this mere withholding of good; none excite more resentment (..)

Yes, this seems mostly correct, though I have two qualifications:

First, in most situations where one person really loves another, whether it is a partner or a child, there is no real matter of a quid pro quo, and one helps those whom one loves because one loves them, and not because one hopes or expects to be eventually helped by them, in a kind of repayment, though this may happen, and indeed may be fair, decent or just.

Second, it is also true that the fact I just mentioned often gets abused: People pretend love, or pretend more love than they feel, in order to reap the benefits of those who love them. (Being a man myself, I am familiar with this treatment from at least one woman I've mistakenly loved, believing her to be quite other than she really was.)      Back.


[58] The principle, therefore, of giving to each what they deserve, that is, good for good as well as evil for evil, is not only included within the idea of justice as we have defined it, but is a proper object of that intensity of sentiment, which places the just, in human estimation, above the simply Expedient.

Of course, Mill wrote this with the classic "definition" of justice in mind: Suum cuique = To each his own, in the sense of the rights or punishments he deserves.      Back.


[59] That a person is only responsible for what he has done voluntarily, or could voluntarily have avoided; that it is unjust to condemn any person unheard; that the punishment ought to be proportioned to the offence, and the like, are maxims intended to prevent the just principle of evil for evil from being perverted to the infliction of evil without that justification.

Yes, that seems true, and Mill is also right in speaking of "the just principle of evil for evil", which tends to be often forgotten:

The justice that is aimed for by the law and its institutions, irrespective of the issue whether the laws themselves are right or just, is maintained mostly by threats and punishments, and therefore by the frightening and hurting of people, supposedly for the good that abiding by the laws would do.

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[60] That first of judicial virtues, impartiality, is an obligation of justice, partly for the reason last mentioned; as being a necessary condition of the fulfilment of the other obligations of justice. But this is not the only source of the exalted rank, among human obligations, of those maxims of equality and impartiality, which, both in popular estimation and in that of the most enlightened, are included among the precepts of justice.

For impartiality, see under [14].       Back.


[61] If it is a duty to do to each according to his deserts, returning good for good as well as repressing evil by evil, it necessarily follows that we should treat all equally well (when no higher duty forbids) who have deserved equally well of us, and that society should treat all equally well who have deserved equally well of it (..)

Indeed, and this seems a reasonable formulation of much of what is involved in the ideas of fairness and equity, but it should be remarked that for most, and possibly - excepting real saints - all, more than this is involved as soon as love and hate start playing a role. Incidentally, this is one reason why it is wise to have conflicts between people mediated by impartial others.    Back.


[62] This is the highest abstract standard of social and distributive justice; towards which all institutions, and the efforts of all virtuous citizens, should be made in the utmost possible degree to converge. But this great moral duty rests upon a still deeper foundation, being a direct emanation from the first principle of morals, and not a mere logical corollary from secondary or derivative doctrines. It is involved in the very meaning of Utility, or the Greatest Happiness Principle. That principle is a mere form of words without rational signification, unless one person's happiness, supposed equal in degree (with the proper allowance made for kind), is counted for exactly as much as another's. Those conditions being supplied, Bentham's dictum, "everybody to count for one, nobody for more than one," might be written under the principle of utility as an explanatory commentary.

Here the logic of Mill's argument, such as it is, seems to be as follows:

The "highest abstract standard of social and distributive justice" is the principle of justice described in the previous excerpt as "to do to each according to his deserts"; how justice is related to utility is Mill's concern in this chapter; "the very meaning of Utility, or the Greatest Happiness Principle" requires that "one person's happiness" "is counted for exactly as much as another's"; and therefore - somehow - justice is implied by utility.

However, all I can see that really follows, perhaps, is that all have an equal right on happiness, ceteris paribus at least, and in any case I cannot convince myself at all that Mill's main contention in this passage, namely that "Utility, or the Greatest Happiness Principle" "is a mere form of words without rational signification, unless one person's happiness, supposed equal in degree (with the proper allowance made for kind), is counted for exactly as much as another's" makes logical sense.

For one thing, one may sincerely hold "the Greatest Happiness Principle", but not in the sense Mill just has given to it, but in the more normal sense of "for me and those I love or like" (et sans nous ou après nous le déluge); for another thing, one may sincerely hold the principle without feeling able to measure and compare "one person's happiness" with another's; again one may hold the principle and insist that it is impossible for the vast majority of human beings, as they are and have been, to count the "happiness" of arbitrary others "for exactly as much" as one's own, or as that of those one likes or loves.

And then one may for various reasons reject, doubt or qualify Mill's " Greatest Happiness Principle", as I have done in my notes to the previous chapters.

Finally, and apart from everything else, I am one of those who rejects "Bentham's dictum, "everybody to count for one, nobody for more than one"" since I don't feel so at all about everyone anyone could name; I don't think it is just (Eichmann and Einstein neither are equals nor should count as equals, for example); and also this dictum seems to me to go against the principle of justice Mill claims to be able to derive from it, for one cannot "do to each according to his deserts" if he counts for the same as anybody else to start with.       Back.


[63n] (..) for what is the principle of utility, if it be not that "happiness" and "desirable" are synonymous terms?

First, see under [3] in Chapter IV.

Consequently, it seems that "the principle of utility", logically speaking, comes to nought, since it is based on contradictions.     Back.


[64] The equal claim of everybody to happiness in the estimation of the moralist and the legislator, involves an equal claim to all the means of happiness, except in so far as the inevitable conditions of human life, and the general interest, in which that of every individual is included, set limits to the maxim; and those limits ought to be strictly construed.

Here Mill undoubtedly meant to uphold the "equal claim of everybody to happiness" by his argument in [62], which I have rejected.

And indeed, I would say that most justified claims of equality or demands for equal treatment seem to me based not on a positive proof that the parties involved are equal in any sense, but on the reason that there is no relevant difference between them for the case at hand.

Furthermore, as I have argued before (see ...), one may well reject any "claim of everybody to happiness" and reject also the "equal claim to all the means of happiness" on the ground that there is no realistic right on happiness, that others have the duty to guarantee, simply because this is humanly impossible, irrealistic, and mistaken, since all one can justly demand from a properly run and just society is that one is protected from harm and suffering that others in the society are also free of, so that with that protection everybody is free to try to find that personal happiness he desires, in so far as this does not limit the freedom of other on the same.       Back.


[65] All persons are deemed to have a right to equality of treatment, except when some recognised social expediency requires the reverse. And hence all social inequalities which have ceased to be considered expedient, assume the character not of simple inexpediency, but of injustice, and appear so tyrannical, that people are apt to wonder how they ever could have been tolerated; forgetful that they themselves perhaps tolerate other inequalities under an equally mistaken notion of expediency (..)

No. It seems just to me that all (adults) have the same rights, but not just that all get "equality of treatment", simply because all are not equal (for - logically speaking - if all were equal there would be at most one), and it does seem just that those with greater merits are better rewarded than those with lesser merits, as long as all are guaranteed an income they can live decently on, and have equal rights to improve their own condition.     Back.


[66] The entire history of social improvement has been a series of transitions, by which one custom or institution after another, from being a supposed primary necessity of social existence, has passed into the rank of a universally stigmatised injustice and tyranny. So it has been with the distinctions of slaves and freemen, nobles and serfs, patricians and plebeians; and so it will be, and in part already is, with the aristocracies of colour, race, and sex.

This seems to be in the tradition of "there is moral progress in human history", namely from less towards more equality, or perhaps better, from more inequality toward less inequality.

Possibly there is such a tendency, but if there is it seems to be mostly based on two facts: First, it is in the interest of most if most freely cooperate, and this happens best and most productively if most feel free to cooperate, and have equal rights with most. Second, what undeniably has progress in human history are science and technology, and indeed the better the technology the more there is produced than can be shared.

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[67] It appears from what has been said, that justice is a name for certain moral requirements, which, regarded collectively, stand higher in the scale of social utility, and are therefore of more paramount obligation, than any others; though particular cases may occur in which some other social duty is so important, as to overrule any one of the general maxims of justice. Thus, to save a life, it may not only be allowable, but a duty, to steal, or take by force, the necessary food or medicine, or to kidnap, and compel to officiate, the only qualified medical practitioner. In such cases, as we do not call anything justice which is not a virtue, we usually say, not that justice must give way to some other moral principle, but that what is just in ordinary cases is, by reason of that other principle, not just in the particular case. By this useful accommodation of language, the character of indefeasibility attributed to justice is kept up (..)

- Justice is concerned with the rights and duties that belong to a particular human society
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[68] The considerations which have now been adduced resolve, I conceive, the only real difficulty in the utilitarian theory of morals.

What Mill - very optimistically - means by "the only real difficulty in the utilitarian theory of morals" is the subject of this chapter, namely effectively how one can explain justice on the basis of "the utilitarian theory of morals".

Since I have rejected that theory, for reasons given in my notes to the first four chapters, I do not believe Mill solved this difficulty, but it is true that I found a considerable amount I agree with, even though I am not a utilitarian, and indeed it seems this chapter is an interesting contribution to the problem of what justice means and involves.     Back.


[69] Justice remains the appropriate name for certain social utilities which are vastly more important, and therefore more absolute and imperative, than any others are as a class (though not more so than others may be in particular cases); and which, therefore, ought to be, as well as naturally are, guarded by a sentiment not only different in degree, but also in kind; distinguished from the milder feeling which attaches to the mere idea of promoting human pleasure or convenience, at once by the more definite nature of its commands, and by the sterner character of its sanctions.

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