§2. Perhaps we shall find it easier to answer this question, if we examine the notion of Justice as applied to that part of private conduct which lies beyond the sphere of law. Here, again, we may observe that the notion of Justice always involves allotment of something considered as advantageous or disadvantageous: whether it be money or other material means of happiness; or praise, or affection, or other immaterial good, or some merited pain or loss. Hence I should answer the question raised in the preceding chapter (§3), as to the classification of the duties there discussed under the heads of Justice and Benevolence respectively, by saying that the fulfilment of any duty of the affections, considered by itself, does not exemplify Justice: but that when we come to compare the obligations arising out of different affectionate relations, and to consider the right allotment of love and kind services, the notion of Justice becomes applicable. In order to arrange this allotment properly we have to inquire what is Just. What then do we mean by a just man in matters where law-observance does not enter? It is natural to reply that we mean an impartial man, one who seeks with equal care to satisfy all claims which he recognises as valid and does not let himself be unduly influenced by personal preferences. And this seems an adequate account of the virtue of justice so far as we consider it merely subjectively, and independently of the intellectual insight required for the realisation of objective justice in action: if we neglect to give due consideration to any claim which we regard as reasonable, our action cannot be just in intention. This definition suffices to exclude wilful injustice: but it is obvious that it does not give us a sufficient criterion of just acts, any more than the absence of arbitrary inequality was found to be a sufficient criterion of just laws. We want to know what are reasonable claims.
Well, of these the most important---apart from the claims discussed in the preceding chapter---seems to be that resulting from contract. This is to a certain extent enforced by law: but it is clear to us that a just man will keep engagements generally, even when there may be no legal penalty attached to their violation. The exact definition of this duty, and its commonly admitted qualifications, will be discussed in the next chapter: but of its general bindingness Common Sense has no doubt.
Further, we include under the idea of binding engagements not merely verbal promises, but also what are called `implied contracts' or `tacit understandings'. But this latter term is a difficult one to keep precise: and, in fact, is often used to include not only the case where A has in some way positively implied a pledge to B, but also the case where B has certain expectations of which A is aware. Here, however, the obligation is not so clear: for it would hardly be said that a man is bound to dispel all erroneous expectations that he may know to be formed respecting his conduct, at the risk of being required to fulfil them. Still, if the expectation was such as most persons would form under the circumstances, there seems to be some sort of moral obligation to fulfil it, if it does not conflict with other duties, though the obligation seems less definite and stringent than that arising out of contract. Indeed I think we may Bay that Justice is generally, though somewhat vaguely, held to prescribe the fulfilment of all such expectations (of services, etc.) as arise naturally and normally out of the relations, voluntary or involuntary, in which we stand towards other human beings. But the discussions in the preceding chapter have shown the difficulty of defining even those duties of this kind which, in an indefinite form, seemed certain and indisputable: while others are only defined by customs which to reflection appear arbitrary. And though while these customs persist, the expectations springing from them are in a certain sense natural, so that a just man seems to be under a kind of obligation to fulfil them, this obligation cannot be regarded as clear or complete, for two reasons that were given in the last chapter; first, because customs are continually varying, and as long as any one is in a state of variation, growing or decaying, the validity of the customary claim is obviously doubtful; and Secondly, because it does not seem right that an irrational and inexpedient custom should last for ever, and yet it can only be abolished by being ``more honoured in the breach than in the observance''.
This line of reflection therefore has landed us in a real perplexity respecting the department of duty which we are at present examining. Justice is something that we conceive to be intrinsically capable of perfectly definite determination: a scrupulously just man, we think, must be very exact and precise in his conduct. But when we consider that part of Justice which consists in satisfying such natural and customary claims as arise independently of contract, it seems impossible to estimate these claims with any exactness. The attempt to map out the region of Justice reveals to us a sort of margin or dim borderland, tenanted by expectations which are not quite claims and with regard to which we do not feel sure whether Justice does or does not require us to satisfy them. For the ordinary actions of men proceed on the expectation that the future will resemble the past: hence it seems natural to expect that any particular man will do as others do in similar circumstances, and, still more, that he will continue to do whatever he has hitherto been in the habit of doing; accordingly his fellow-men are inclined to think themselves wronged by his suddenly omitting any customary or habitual act, if the omission causes them loss or inconvenience. [2] On the other hand, if a man has given no pledge to maintain a custom or habit, it seems hard that he should be bound by the unwarranted expectations of others. In this perplexity, common sense often appears to decide differently cases similar in all respects, except in the quantity of disappointment caused by the change. For instance, if a poor man were to leave one tradesman and deal with another because the first had turned Quaker, we should hardly call it an act of injustice, however unreasonable we might think it: but if a rich country gentleman were to act similarly towards a poor neighbour, many persons would say that it was unjust persecution.
The difficulty just pointed out extends equally to the duties of kindness---even to the specially stringent and sacred duties of the domestic affections and gratitude---discussed in the previous chapter. We cannot get any new principle for settling any conflict that may present itself among such duties, by asking `what Justice requires of us': the application of the notion of Justice only leads us to view the problem in a new aspect---as a question of the right distribution of kind services---it does not help us to solve it. Had we clear and precise intuitive principles for determining the claims (e.g.) of parents on children, children on parents, benefactors on the recipients of their benefits, we might say exactly at what point or to what extent the satisfaction of one of these claims ought in justice to be postponed to the satisfaction of another, or to any worthy aim of a different kind: but I know no method of determining a problem of this kind which is not either implicitly utilitarian, or arbitrarily dogmatic, and unsupported by Common Sense.