[219] The reader will find an interesting illustration of the perplexity of Common Sense on this point in Mr. O. W. Holmes, Junior’s, book on _The Common Law_, chap. iii., where the author gives a penetrating discussion of the struggle, in the development of the doctrine of torts in English Law, between two opposing views: (1) that “the risk of a man’s conduct is thrown upon him as the result of some moral short-coming,” and (2) that “a man acts at his peril always, and wholly irrespective of the state of his consciousness upon the matter.” The former is the view that has in the main prevailed in English Law; and this seems to me certainly in harmony with the Common Sense of mankind, so far as legal liability is concerned; but I do not think that the case is equally clear as regards moral obligation. [220] Cf. _post_, pp. 292-3. It may be added that there is often a further difficulty in ascertaining the amount of compensation due: for this frequently involves a comparison of things essentially disparate, and there are some kinds of harm which it seems impossible to compensate. [221] In the earlier stage of moral development, referred to in the preceding paragraph, retribution inflicted on the wrongdoer was regarded as the normal mode of reparation to the person injured. But this view is contrary to the moral Common Sense of Christian Societies. [222] I think the term “merit” often blends the two notions, as when we speak of “promotion by merit.” By moralists, however, “merit” is generally used as exactly equivalent to what I have called “desert.” [223] The only tenable Determinist interpretation of Desert is, in my opinion, the Utilitarian: according to which, when a man is said to deserve reward for any services to society, the meaning is that it is expedient to reward him, in order that he and others may be induced to render similar services by the expectation of similar rewards. Cf. _post_, Book iv. chap. iii. § 4. [224] Perhaps we may partly attribute to the difficulties above discussed, that the notion of Desert has sometimes dropped out of the ideal of Utopian reconstructors of society, and ‘Equality of Happiness’ has seemed to be the only end. Justice, it has been thought, prescribes simply that each should have an equal share of happiness, as far as happiness depends on the action of others. But there seems to be much difficulty in working this out: for (apart from the considerations of Fitness above mentioned) equal happiness is not to be attained by equal distribution of objects of desire. For some require more and some less to be equally happy. Hence, it seems, we must take differences of _needs_ into consideration. But if merely mental needs are included (as seems reasonable) we should have to give less to cheerful, contented, self-sacrificing people than to those who are naturally moody and _exigeant_, as the former can be made happy with less. And this is too paradoxical to recommend itself to Common Sense.