§1. We have seen that in delineating the outline of duty, as intuitively recognised, we have to attempt to give to common terms a definite and precise meaning. This process of definition always requires some reflection and care, and is sometimes one of considerable difficulty. But there is no case where the difficulty is greater, or the result more disputed, than when we try to define Justice.
Before making the attempt, it may be as well to remind the reader what it is that we have to do. We have not to inquire into the derivation of the notion of Justice, as we are not now studying the history of our ethical thought, but its actual condition. Nor can we profess to furnish a definition which will correspond to every part of the common usage of the term; for many persons are undoubtedly vague and loose in their application of current moral notions. But it is an assumption of the Intuitional method that the term `justice' denotes a quality which it is ultimately desirable to realise in the conduct and social relations of men; and that a definition may be given of this which will be accepted by all competent judges as presenting, in a clear and explicit form, what they have always meant by the term, though perhaps implicitly and vaguely. In seeking such a definition we may, so to speak, clip the ragged edge of common usage, but we must not make excision of any considerable portion.[2]
Perhaps the first point that strikes us when we reflect upon our notion of Justice is its connexion with Law. There is no doubt that just conduct is to a great extent determined by Law, and in certain applications the two terms seem interchangeable. Thus we speak indifferently of `Law Courts' and `Courts of Justice' and when a private citizen demands Justice, or his just rights, he commonly means to demand that Law should be carried into effect. Still reflection shows that we do not mean by Justice merely conformity to Law. For first, we do not always call the violators of law unjust, but only of some Laws: not, for example, duellists or gamblers. And secondly, we often judge that Law as it exists does not completely realise Justice; our notion of Justice furnishes a standard with which we compare actual laws, and pronounce them just or unjust. And, thirdly, there is a part of just conduct which lies outside the sphere even of Law as it ought to be; for example, we think that a father may be just or unjust to his children in matters where the law leaves (and ought to leave) him free.
We must then distinguish Justice from what has been called the virtue or duty of Order, or Law-observance: and perhaps, if we examine the points of divergence just mentioned, we shall be led to the true definition of Justice.
Let us therefore first ask, Of what kind of laws is the observance generally thought to be a realisation of Justice? In most cases they might be described as laws which define and secure the interests of assignable individuals. But this description is not complete, as Justice is admittedly concerned in the apportionment of adequate punishment to each offender; though we should not say that a man had an interest in the adequacy of his punishment. Let us say, then, that the laws in which Justice is or ought to be realised, are laws which distribute and allot to individuals either objects of desire, liberties and privileges, or burdens and restraints, or even pains as such. These latter, however, are only allotted by law to persons who have broken other laws. And as all law is enforced by penalties, we see how the administration of law generally may be viewed as the administration of Justice, in accordance with this definition: not because all laws are primarily and in their first intention distributive, but because the execution of law generally involves the due allotment of pains and losses and restraints to the persons who violate it. Or, more precisely, we should say that this legal distribution ought to realise Justice, for we have seen that it may fail to do so. We have next to ask, therefore, What conditions must laws fulfil in order that they may be just in their distributive effects?
Here, however, it may seem that we are transgressing the limit which divides Ethics from Polities: for Ethics is primarily concerned with the rules which ought to govern the private conduct of individuals. and it is commonly thought that private persons ought to obey even laws that they regard as unjust, if established by lawful authority. Still, this is doubted in the case of laws that seem extremely unjust: as (e.g.) the Fugitive Slave law in the United States before the rebellion. At any rate it seems desirable that we should here digress somewhat into political discussion; partly in order to elucidate the notion of Justice, which seems to be essentially the same in both regions, and partly because it is of great practical importance to individuals, in regulating private conduct beyond the range of Law-observance, to know whether the laws and established order of the society in which they live are just or unjust.
Now perhaps the most obvious and commonly recognised characteristic of just laws is that they are Equal: and in some departments of legislation, at least, the common notion of Justice seems to be exhaustively expressed by that of Equality. It is commonly thought, for example, that a system of taxation would be perfectly just if it imposed exactly equal burdens upon all:[3] and though this notion of 'equal burden' is itself somewhat difficult to define with the precision required for practical application, still we may say that Justice here is thought to resolve itself into a kind of equality. However, we cannot affirm generally that all laws ought to affect all persons equally, for this would leave no place for any laws allotting special privileges and burdens to special classes of the community; but we do not think all such laws necessarily unjust: e.g. we think it not unjust that only persons appointed in a certain way should share in legislation, and that men should be forced to fight for their country but not women. Hence some have said that the only sense in which justice requires a law to be equal is that its execution must affect equally all the individuals belonging to any of the classes specified in the law. And no doubt this rule excludes a very real kind of injustice: it is of the highest importance that judges and administrators should never be persuaded by money or otherwise to show `respect of persons'. So much equality, however, is involved in the very notion of a law, if it be couched in general terms: and it is plain that laws may be equally executed and yet unjust: for example, we should consider a law unjust which compelled only red-haired men to serve in the army, even though it were applied with the strictest impartiality to all red-haired men. We must therefore conclude, that, in laying down the law no less than in carrying it out, all inequality affecting the interests of individuals which appears arbitrary, and for which no sufficient reason can be given, is held to be unjust. But we have still to ask, what kind of reasons for inequality Justice admits and from what general principle (or principles) all such reasons are to be deduced?