§5. When we pass to consider that element of Justice which presented itself as Gratitude universalised, the same difficulty recurs in a more complicated form. For here, too, we have to ask whether the Requital of Good Desert ought to be proportioned to the benefit rendered, or to the effort made to render it. And if we scrutinise closely the common moral notion of Retributive Justice, it appears, strictly taken, to imply the metaphysical doctrine of Free Will; since, according to this conception, the reasonableness of rewarding merit is considered solely in relation to the past, without regard to the future bad consequences to be expected from leaving merit without encouragement: and if every excellence in any one's actions or productions seems referable ultimately to causes other than himself, the individual's claim to requital, from this point of view, appears to vanish. On the other hand it is obviously paradoxical in estimating Desert to omit the moral excellences due to hereditary transmission and education: or even intellectual excellences, since good intention without foresight is commonly held to constitute a very imperfect merit. Even if we cut through this speculative difficulty by leaving the ultimate reward of real Desert to Divine Justice, we still seem unable to find any clear principles for framing a scale of merit. And much the same may be said, mutatis mutandis, of the scale of Demerit which Criminal Justice seems to require.
And even if these difficulties were overcome, we should still be only at the commencement of the perplexities in which the practical determination of Justice on self-evident principles is involved. For the examination of the contents of this notion, which we conducted in chap. v., furnished us not with a single definite principle, but with a whole swarm of principles, which are, unfortunately liable to come into conflict with each other; and of which even those that when singly contemplated have the air of being self-evident truths, do not certainly carry with them any intuitively ascertainable definition of their mutual boundaries and relations. Thus, for example, in constructing an ideally perfect distribution of the means of happiness, it seems necessary to take into account the notion (as I called it) of Fitness, which, though often confounded with Desert, seems essentially distinct from it. For the social `distribuend' includes not merely the means of obtaining pleasurable passive feelings, but also functions and instruments, which are important sources of happiness, but which it is obviously reasonable to give to those who can perform and use them. And even as regards the material means of comfort and luxury---wealth, in short---we do not find that the same amount produces the same result of happiness in every case: and it seems reasonable that the means of refined and varied pleasure should be allotted to those who have the corresponding capacities for enjoyment. And yet these may not be the most deserving, so that this principle may clearly conflict with that of requiting Desert.
And either principle, as we saw, is liable to come into collision with the widely-accepted doctrine that the proper ultimate end of Law is to secure the greatest possible Freedom of action to all members of the community: and that all that any individual, strictly speaking, owes to any other is noninterference, except so far as he has further bound himself by free contract. But further, when we come to examine this principle in its turn, we find that, in order to be capable at all of affording a practical basis for social construction, it needs limitations and qualifications which make it look less like an independent principle than a ``middle axiom'' of Utilitarianism; and that it cannot without a palpable strain be made to cover the most important rights which Positive Law secures. For example, the justification of permanent appropriation is surely rather that it supplies the only adequate motive for labour than that it, strictly speaking, realises Freedom: nor can the questions that arise in determining the limits of the right of property---such as whether it includes the right of bequest---be settled by any deductions from this supposed fundamental principle. Nor again, can even the enforcement of contracts be fairly said to be a realisation of Freedom; for a man seems, strictly speaking, freer when no one of his volitions is allowed to cause an external control of any other. And if we disregard this as a paradoxical subtlety, we are met on the opposite side by the perplexity that if abstract Freedom is consistent with any engagement of future services, it must on the same grounds be consistent with such as are perpetual and unqualified, and so even with actual slavery. And this question becomes especially important when we consider that the duty of obeying positive laws has by many been reconciled with the abstract right of Freedom, by supposing a `tacit compact' or understanding between each individual and the rest of his community. This Compact, however, seems on examination too clearly fictitious to be put forward as a basis of moral duty: as is further evident from the indefinitely various qualifications and reservations with which the `understanding' has by different thinkers been supposed to be understood. Hence many who maintain the `Birthright of Freedom' consider that the only abstractedly justifiable social order is one in which no laws are imposed without the express consent of those who are to obey them. But we found it impossible really to construct society upon this basis: and such Representative Governments as have actually been established only appear to realise this idea by means of sweeping limitations and transparent fictions. It was manifest, too, that the maximum of what may be called Constitutional Freedom---i.e. the most perfect conformity between the action of a government and the wishes of the majority of its subjects---need by no means result in the realisation of the maximum of Civil Freedom in the society so governed.
But even if we could delineate to our satisfaction an ideal social order, including an ideal form of government, we have still to reconcile the duty of realising this with the conformity due to the actual order of society. For we have a strong conviction that positive laws ought, generally speaking, to be obeyed: and, again, our notion of Justice seemed to include a general duty of satisfying the expectations generated by custom and precedent. Yet if the actual order of society deviates very much from what we think ought to exist, the duty of conforming to it seems to become obscure and doubtful. And apart from this we cannot say that Common Sense regards it as an axiom that Laws ought to be obeyed. Indeed, all are agreed that they ought to be disobeyed when they command what is wrong: though we do not seem able to elicit any clear general view as to what remains wrong after it has been commanded by the sovereign. And, again, the positive laws that ought to be obeyed as such must be the commands issued by a (morally) rightful authority: and though these will ordinarily coincide with the commands legally enforced, we cannot say that this is always the case for the courts may be temporarily subservient to a usurper; or, again, the sovereign hitherto habitually obeyed may be one against whom it has become right to rebel (since it is generally admitted that this is sometimes right). We require, then, principles for determining when usurpation becomes legitimate and when rebellion is justifiable: and we do not seem able to elicit these from Common Sense---except so far as it may be fairly said that on this whole subject Common Sense inclines more to the Utilitarian method than it does in matters of private morality.
Still less can we state the general duty of satisfying `natural expectations'---i.e. such expectations as an average man would form under given circumstances---in the form of a clear and precise moral axiom. No doubt a just man will generally satisfy customary claims: but it can hardly be maintained that the mere existence of a custom renders it clearly obligatory that any one should conform to it who has not already promised to do so; especially since bad customs can only be abolished by individuals venturing to disregard them.