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Practical significance of realistic theories of justice

sovereign, and the sovereign as that agent of the state who is invested with the supreme power, unrestrained by human law and subject only to the dictates of its own reason. Such a sovereign may be a single person, which Hobbes urged as the most convenient and serviceable form of sovereignty, or any number of persons. In any case sovereignty must be founded upon power, and power may be resolved into the forces from which it is generated. Thus the task of justifying the law becomes that of vindicating the authority of the interests behind the law. The interests behind the law may be those of the few or of the many, of the rich or of the poor, of the intelligent or of the ignorant, of the strong or of the weak. Such theories of justice may be termed realistic, because the will of the state, which is the source of justice, is the will of a real person or group of persons within the state.

These realistic theories of justice have a tendency to establish right by fact. In the words of Pope:

And spite of pride, in erring reason's spite,
One truth is clear, Whatever is, is right.

Hobbes sought to vindicate the rule of the strong, because
power seemed to him the essence of the state, and the
stability of the state essential to the successful pursuit of
happiness. Spencer also sought to vindicate the rule of
the strong, but the exigencies of his times constrained him
to a theory of government directly contrary to that of
Hobbes. Absolutism in the nineteenth century no longer
appeared mainly in the form of absolute monarchy. Since
the French Revolution there has always been the alterna-
tive of absolute democracy. The latter form seemed to
Spencer full of menace to the interests of the strong, that
is, those most fit physically and mentally for success in a
comparatively unregulated struggle for existence, because
it enabled the weak by force of numbers to overpower

those who, upon Spencer's principles, were fitted for survival. He wished to limit political justice by natural justice. Hence, in flat contradiction to Hobbes, he was constrained to devise a theory of sovereignty which would confine the supreme power in the state, that is, the authority of the governing class, within certain narrow limits. Nietzsche, indeed, would have narrowed those limits to the point where political authority was reduced to nothing. There would be no political justice, but only natural justice. The result was to be the same: the strong were to be in a position to advance their own interests at the cost of the weak. Justice meant the sacrifice of the interests of the many for those of the favored few.

cation of

with the


of a part

of the


The original program of the empirical Utilitarians Identifiseemed calculated to produce a contrary effect. The many justice were to be in a position to advance their interests at the cost of the few. These terms, few and many, strong and weak, may be translated into others which will express more accurately at a given time and place the real situation. We may substitute intelligent and ignorant, or rich and poor, and the effect is the same. It is that the interests of a part of the whole body of people who constitute the state are preferred, or at least are in a position to be preferred, to those of the whole body. Justice becomes identical with the interests of that part. In a militarist state it becomes identical with the interests of the powerful; in a capitalist state, with those of the rich; in a proletarian state, with those of the poor; in a nationalist state, with those of the dominant national group;

ecclesiastical state, with those of the church. But willful and deliberate preference for the interests of a privileged class is commonly called injustice, not justice.

This is the fundamental fault of every realistic theory of justice. The expression of the will of the state, if the form of government is consistent with the theory of justice,


tion of all realistic

is controlled by the opinion of a real person or group of persons, and there is nothing in the nature of the idea of theories of justice to prevent these persons from using their power justice exclusively in their own interest. Such a theory of justice furnishes no answer to the revolutionist who repeats after Rousseau: "If I considered only force and the results that proceed from it, I should say that so long as a people is compelled to obey and does obey, it does well; but that, so soon as it can shake off the yoke and does shake it off, it does better; for, if men recover their freedom by virtue of the same right by which it was taken away, either they are justified in resuming it, or there was no justification for depriving them of it." These theories, however pleasing they may be to those in any state who enjoy or expect to enjoy the possession of power, cannot satisfy those who are discontented with the established law and order. Rousseau pointed out in his inimitable way the practical difficulty with such theories, when he said that "a juster method might be employed, but none more favorable to tyrants.'

Rousseau and the idealistic theory of justice



Rousseau was, in fact, the man who did most to introduce in modern times a more satisfactory theory of justice. He was a facile and graceful as well as a prolific writer, and exercised an extraordinay influence, not so much on account of the originality of his ideas as on account of the clearness with which he visualized the cardinal problem of politics and the force with which he stated his proposals for its solution. Like many writers to whom writing is easy, Rousseau wrote too much and not a little of this is written too well. Had it been more difficult for him to write, he might have expressed his thought more exactly;

1 The Social Contract, Book 1, Chapter 1.
2 Ibid. Book 1, Chapter 2.

and if he had written less, he certainly would have avoided many inconsistencies. His earlier writings, the Discourse on the Progress of the Arts and Sciences, and the Discourse on the Origin and Basis of Inequality among Men, are badly infected with the romantic sentimentality which pervades so much of the political literature of the eighteenth century. As Dunning has aptly said: "He was himself the free and noble savage whom he pictured so pleasingly in his works. The Confessions . . . contain scarcely more of his intellectual autobiography than can be found in his Discourses and other political writings."1

But the reality was much less pleasing than the romance, and Rousseau's manner of living does not tend to inspire confidence in the sanity of his outlook on life or in the soundness of his judgment. Moreover, he was a superficial student of political science; he was ignorant of practical politics and very largely ignorant of history. Nevertheless, his later writings, notably the Considerations on the Government of Poland and those also on that of Corsica, written in response to requests for advice from patriotic admirers in ill-ordered foreign lands to which his fame had penetrated, reveal genuinely broad human sympathies and no inconsiderable acuteness in the analysis of practical problems and in the elaboration of remedies. But his forte was not practical statesmanship. He himself candidly confessed: "If I were a prince or a legislator I should not waste my time in saying what ought to be done; I should do it or remain silent." He never could have been a legislator, and what he said should be done by legislators proved to be of much less value to such persons than to the downtrodden and oppressed.

Rousseau's most influential book The Social Contract, was devoted, as the subtitle indicates, to the elucidation of the principles of political justice. He saw that the cardinal

1 William A. Dunning, The History of Political Theories, Vol. ш, p. 3.

Identification of

of all the

people of the state

problem of politics is that of obedience. He was not justice with concerned so much with the fact, as with its justification. the interests Most men live in servitude, voluntary or involuntary, to a comparatively few. What, he inquired, can make such servitude not only legitimate but also just? "Man is born free, and everywhere he is in chains. . . . How has this change come about? I do not know. What can render it legitimate? I believe that I can settle this question." By these celebrated opening sentences he seems to have meant that all government is of human contrivance and that the then existing governments were unjust contrivances. His solution of the problem is simple enough in theory. Just laws can be found only in a state where political authority rests upon the force of opinion which is truly public and general, and not merely the opinion of a person or group of persons constituting but a part of the state. If public opinion be regarded as the expression of the will of a state, in which justice is to prevail, then that will must be not only real, but also general. This general will he declared to be the only true sovereign of a state which is founded upon justice. Since by its nature it must be directed toward ends which are in the interest of all the members of the state, it can never be wrong, and whatever it commands must be just. Justice, therefore, is identical with the interests, not of any part of the state, but of the whole body of people.

Practical significance of idealistic theory of justice

There are many difficulties in the way of those who would reduce this idea of justice to practice. How shall the general will be ascertained in concrete cases? Shall any body be recognized as the authoritative interpreter of the general will? If so, who shall judge between this body and the rest of the people, when the latter dissent from the official interpretation of the general will? But if there is no special interpreter of the general will, can there be any just action in the state except by unanimous

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