Social Rights And Duties: Addresses to Ethical Societies. Vol 1 [of 2]Stephen, Leslie
Philosophy
Social Rights And Duties: Addresses to Ethical Societies. Vol 1 [of 2]
Stephen, Leslie
Ethics, Evolutionary; Social ethics
and then, tried to put together some ostensible pretext for an answer.
What, let us ask, is the true relation between justice and equality? A
judge, to take the typical case, is perfectly just when he ascertains
the facts by logical inferences from the evidence, and then applies the
law in the spirit of a scientific reasoner. Given the facts, what is
the rule under which they come? To answer that question, generally
speaking, is his whole duty. In other words, he has to exclude all
irrelevant considerations, such as his own private interests or
affections. The parties are to be to him merely A and B, and he has to
work out the result as an arithmetician works out a sum. Among the
irrelevant considerations are frequently some moral aspects of the
case. A judge, for example, decides a will to be valid or invalid
without asking whether the testator acted justly or unjustly in a moral
sense, but simply whether his action was legal or illegal. He cannot go
behind the law, even from motives of benevolence or general maxims of
justice, without being an unjust judge. Cases may arise, indeed, as I
must say in passing, in which this is hardly true. A law may be so
flagrantly unjust that a virtuous judge would refuse to administer it.
One striking case was that of the fugitive slave law in the United
States, where a man had to choose between acting legally and outraging
humanity. So we consider a parent unjust who does not leave his fortune
equally among his children. Unless there should be some special reason
to the contrary, we shall hold him to be unfair for making distinctions
out of mere preference of one child to another. Yet in the case of
primogeniture our opinion would have to be modified. Supposing, for
example, a state of society in which primogeniture was generally
recognised as desirable for public interests, we could hardly call a
man unjust for leaving his estates to his eldest son. If, in such a
state, a man breaks the general rule, our judgment of his conduct would
be determined perhaps by considering whether he was before or behind
his age, whether he was acting from a keener perception of the evils of
inequality or actuated by spite or regardless of the public interests
which he believed to be concerned. A parent treats his children equally
in his will in regard to money; but he does not, unless he is a fool,
give the same training or the same opening to all his children, whether
they are stupid or clever, industrious or idle. But what I wish to
insist upon is, that justice implies essentially indifference to
irrelevant considerations, and therefore, in many cases, equality in
the treatment of the persons concerned. A judge has to decide without
reference to bribes, and not be biassed by the position of an accused
person. In that sense he treats the men equally, but of course he does
not give equal treatment to the criminal and innocent, to the rightful
and wrongful claimant.
Public-domain text, read in full here on John Shaqi.
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