The Devices of Politics
We have been considering until now the positive aspects of the personal. Our general subject has been ‘Persons in direct relation’. The justification for this lies in the general principle that the personal must be defined in its positive aspect, and its negative aspect then recognized as falling within and subordinated to the positive. In this chapter we must turn our attention to this negative aspect of the general theme, and consider persons in indirect relation. Broadly speaking, this negative aspect is economic. But it is the negative aspect of a society of persons, and is, therefore, intentional. It is an intentional co-operation in work, that is, action directed upon the world-as-means, to the corporate production and distribution of the means of personal life in society. This co-operation in work establishes a nexus of indirect relations between all the members of the co-operating group, irrespective of their personal relations, whether these are positive or negative or nonexistent. Such relations are not relations of persons as persons, but only as workers; they are relations of the functions which each person performs in the co-operative association; and if this aspect of the personal is abstracted, and considered in isolation, every person is identified with his function. He is a miner, or a tinsmith, or a doctor, or a teacher.
Now this economic aspect of the personal—the working life—is both intentional and for the sake of the personal life. As intentional, it is not mere matter of fact. It must be produced, maintained and developed by deliberate effort. As negative—being for the sake of the personal life to which it is the means—it requires to be justified by reference to the personal life which makes it possible. In itself, the economic nexus of relation is purely pragmatic. Its standard is efficiency, and its problematic is in terms of efficiency and inefficiency. Its aim is to deliver the goods, in the maximum quantity, quality and variety for a given expenditure of labour. From the economic point of view, every person is a potential source of energy and skill to be used with the maximum of efficiency in the mechanism of production. He is himself a means to an end, and this end is the production of the means of life. It is, therefore, not self-justifying; it must be judged as a whole by the place it plays in the personal lives of all the workers. An economic efficiency which is achieved at the expense of the personal life is self-condemned, and in the end self-frustrating. The mobility of labour, for example, is a good thing from the economic point of view. It is a condition of efficiency in the system of production. From the personal point of view, it is an evil, though it may be justified under special circumstances as the lesser of two evils. For the mobility of labour means a continuous breaking of the nexus of direct relations between persons and between a person and his natural environment; and it is on the continuity of these relations that the development of the personal life must depend. The more mobile the workers are, the more frequently they are cut off from their roots, and forced to grow new ones. The end result can only be the destruction of the family and the production of the ‘mass-man’. At the same time the economic field is, for all workers, a field of necessity, not of freedom. The work must go on, irrespective of the particular intentions and motives of the workers. Every worker must perform his allotted task, whether he wants to or not, either freely, because he likes doing it, or under constraint, because he is afraid of the consequences if he does not. Economic activity is in principle a routine of action which has to be maintained; which has to be adapted to the resources available, both material and technical; which has to be made as efficient as possible; and finally, which has to be subordinated and adjusted to the personal life of society as a whole, and to the personal lives of all its members. Necessity is for the sake of freedom: the economic is for the sake of the personal. This maintaining, improving and adjusting the indirect or economic relations of persons is the sphere of politics. Its institutional expression is the state, and its central function is the maintaining of justice.
Now justice is a moral idea. Yet when we consider its place in the system of moral ideas it exhibits a curious ambiguity. From one point of view justice is so meagre and universal a virtue that it seems hardly to be a virtue at all. It expresses the minimum of reciprocity and interest in the other in the personal relation—what can rightly be exacted from him if it is refused. We contrast it with mercy, with generosity, with benevolence, with all these moral qualities which express a positive readiness to sacrifice self-interest for the sake of others. I can demand justice for myself from others, and even enforce it, but not benevolence or generosity or affection. In such conditions justice seems essentially negative; a kind of zero or lower limit of moral behaviour. On the other hand, justice can appear as the very essence of morality without which the higher virtues lose their moral quality. To spend the money that should have paid my debts unselfishly upon those whose need touches my sympathy is positively immoral; and the mother who devotes her care and affection to one of her children at the expense of the others is a bad mother. The care for another which fails injustice loses its moral character, whatever other moral qualities it may display. From this point of view, justice seems to be the sine qua non of all morality, the very essence of righteousness, in a sense the whole of morality.
If we take both these aspects together, we have another example of the form of the personal. Justice is that negative aspect of morality which is necessary to the constitution of the positive, though subordinate within it. Morality can only be defined through its positive aspect, yet it can only be realized through its own negative. Without justice, morality becomes illusory and sentimental, the mere appearance of morality. The reason for this lies quite clearly in the fact that justice safeguards the inclusiveness of the moral reference, and so the unity of the Other. To be generous without being just is to be generous to some at the expense of others; and so to produce a minor mutuality which is hostile to the interests of the larger community. It is to create and defend a corporate self-interest, and this destroys the universality of the moral reference. To be more than just to some and less than just to the others is to be unjust to all.
Morality, we have seen, expresses the necessary and universal intention to maintain community, as the condition of freedom. But community can only be actual in direct personal relations, since we can only be actually in fellowship with those whom we know personally. Where relations are indirect it can only be potential; and this means that if we did come into direct relation with another person the relation would be positively motived. The full realization of the moral intention can only be reached in a relation between two persons in which each cares wholly for the other, and for himself only for the sake of the other. In such a relation, it would seem there is no place for justice. It would appear to be completely transcended by the abolition of self-interest. But this is not the case. Even in such an ideal, if it could be achieved, the negative aspect would still be present, though completely subordinated to the positive, and functioning as a differentiating force within it. In the relation of two agents, this means that each remains himself and differentiated from the other; there must be no self-identification of one with the other, or the reciprocity will be lost and the heterocentricity of the relation will be only apparent. There is, for instance, a kind of generosity which is completely self-interested. If in my relation with you I insist on behaving generously towards you and refuse to accept your generosity in return, I make myself the giver and you the recipient. This is unjust to you. I put you in my debt and refuse to let you repay the debt. In that case I make the relation an unequal one. You are to have continual cause to be grateful to me, but I am not to be grateful to you. This is the worst kind of tyranny, and is shockingly unfair to you. It destroys the mutuality of the personal by destroying the equality which is its negative aspect. To maintain equality of persons in relation is justice; and without it generosity becomes purely sentimental and wholly egocentric. My care for you is only moral if it includes the intention to preserve your freedom as an agent, which is your independence of me. Even if you wish to be dependent on me, it is my business, for your sake, to prevent it. This is the problematic of personal relations, and it is therefore a religious problematic in terms of the distinction between real and unreal. I can love another person either for his sake or for my own sake. In either case my feeling for the other is, qua feeling, the same. The question is whether I really love him or not. The verification of this problematic lies in the answer to another question. ‘If my love is not reciprocated, does it turn to resentment and hatred?’
But now, if the negative aspect of morality, which is justice, is considered by itself, it appears as the minimum requirement of morality in all personal relations, whether positive or negative, direct or indirect. If we are opponents, either in play or in earnest, you and I must play fair and fight fair. This is no more than the minimum required to recognize, in the intentionality of action, that you are also a person, and that the struggle is itself, however negative, a relation of persons. But the requirement of justice in our actions has a wider sweep; it is the bond, not of community indeed—because for community much more is required—but of society; of any form of co-operation which is a co-operation of persons. Wherever there is a de facto relation between myself and another person; wherever my activity and his activity are functionally related in the nexus of human cooperation, I am under a moral obligation to act in a way that is just and fair to him. For my freedom of action then depends on his, and I must not exercise my freedom at the expense of his. I cannot, indeed, do so without doing him an injury.
Now in my direct relations with others, whether these are personal or impersonal, I can hope to secure justice in my dealings with them by limiting my activities for the sake of their interests, provided they will do the same in their dealings with me. For I am in communication with them, and we can consult together and come to an agreement about what is fair to each of us, so far as our separate courses of action affect one another and impinge upon one another. This can be achieved by a common consent to general principles by reference to which each of us can determine what would or would not be fair to the other person if we did it. Such agreement is a contract between us, which presupposes the intention to secure justice and to act justly. It determines reciprocal rights and obligations which we engage ourselves to respect. It is a pragmatic device to secure justice in co-operation and to eliminate injustice. If we do not trust one another to keep the contract we shall need some further device to provide a pragmatic security against the danger that someone may break it. The contract will require a sanction, and this can only be someone with authority and power to enforce it.
Such a nexus of social relationship, unqualified and generalized without limit, is Hobbes's Leviathan. But clearly the qualification ‘if we do not trust one another’ cannot be ignored; and the generalization without limit is inadmissible. The possibility of the State depends upon an existing habit of co-operation which needs no enforcement; upon the existence of a society in which people do trust one another for the most part, though not under every condition or in all cases. The power of the State, as Hobbes himself admits, is derived from its citizens. In the end it rests upon this, that where their own interests are not involved people will see to it that the peace is kept and that injustice is not permitted. When we act unjustly we make an exception in our own favour. But we will not make the exception in favour of other people whose interests are not our own. Provided a customary social co-operation exists, provided we do in practice trust the majority of people to do in most circumstances what is expected of them, it is possible to devise mechanisms for dealing with the exceptions; to set up judges and kings and other officials; to provide them with police to take care of these things for us. Otherwise it is not possible. The power of any government rests upon the sanction of public opinion; upon the universal and necessary intention to maintain social co-operation. Once a system of government has itself become a social habit, the universal need for peaceful co-operation is so strong a sanction that misgovernment must be very flagrant and very widespread before any society will withdraw the consent to the operations in which its power consists.
This habit of co-operation in society is a presupposition of the possibility of politics; and in the end even of tyrannical politics. But this habit itself must be established and maintained. In its turn it rests upon the existence of community—in particular upon the family—as a group of people who love one another. It was in the family that society originated; and it is in the family that the habit of social co-operation is learned afresh by every new generation. Thus the state depends upon society and society depends upon community.
So long as a society is small enough for all its members to know one another, there is no need for the State, or for legislation. The custom of life is sufficient to provide the rules that are necessary, and the sanction of public opinion is enough to see that they are kept. Religion, on the one hand, and education on the other are the primary needs: the one is the business of the family, to hand on the customary way of life from one generation to the next; the other is the means of extending the spirit of the family beyond its boundaries to the society as a whole. The necessity for the State and for politics arises with the breakdown of the customary community of direct personal relations; and in our own European history we can read the story of the transition to a wider society of indirect relations in the literature of ancient Greece. Politics, in fact and in conception, emerged with the breakdown of the self-sufficiency of the city-state (as we misleadingly call it) through the introduction of coined money, a market economy and overseas trade. For this produced a nexus of economic co-operation which linked the members of these small communities with one another and with the barbarian world beyond their borders. It was this growth of a system of indirect personal relations, superimposed upon the direct relations within the separate communities, which made politics a necessity; because by making the cities economically interdependent it created a tension of interests within each city and a struggle of parties for the control of the city. Law began to differentiate itself from custom; individual interest from the interest of society. The city could only be maintained by law backed by force. How transitional the Greek experience was can be seen in this, that for Plato the problem of justice has become the inclusive problem of life, for the individual and for society alike; while for Aristotle morality has become a department of politics.
Yet though in this way economic development created politics and the germinal form of the State, it created them in a form which could not solve the problem. The nexus of indirect relationship was not coincident with the limits of political control. The Greek cities found themselves in a situation very like our own; a situation in which a multiplicity of independent and exclusive societies must each seek to control, in its own interests, and adjust to its own needs, an economic nexus of relations of which it constituted only a fragment. The whole Greek way of life was doomed; and the emergence of politics could only hasten the breakdown which it sought to prevent. A political unification of the Greek world might have saved the situation, and a movement for federal union did arise. But, like all Greek political conceptions, it was too idealistic to succeed. What was required was a pragmatic device which could keep the peace between communities which were culturally heterogeneous, and which would prove effective over the whole field of economic interdependence. The possibility was ended by the battle of Chaeronea; and the era of the small community gave place to the age of empire. But the problem of keeping the peace within a political society of heterogeneous groups in indirect and competitive relations was only solved by the Romans, and not effectively by them until Augustus Caesar imposed the Roman peace upon the Mediterranean world.
Our question, however, is not historical, but philosophical. How can justice, as a universal moral obligation upon all persons in relation, be discharged when their relations are indirect? The answer must lie in the invention of a mechanism which will automatically adjust the relations between the individuals concerned in such a fashion that the activities of each do not injure the others. This mechanism is the law, conceived as the Romans conceived it, as a device for keeping the peace. Since it is a means to an end, its value is pragmatic; it must be judged by reference to its efficiency. The problematic of law might be expressed by defining it as the minimum of interference with the practical freedom of the individual which is necessary to keep the peace. Too little interference, equally with too much, will make the law inefficient for its purpose; for in either case it will provide a motive for a breach of the peace. This motive is the sense of injustice; the feeling in individuals or groups that they are being unfairly restricted relative to others.
When we talk of the law, in this sense, we are not thinking merely of a set of rules or principles, but of the whole set of devices which are necessary to make the laws operative for their purpose. The law has to be determined, formulated, amended and adapted to changing circumstances. It has to be interpreted and applied to particular cases; it has to be administered and enforced. The whole apparatus for the promulgation, interpretation and administration of law is the State. The State is power in the service of law; and law is the means to justice in the indirect relations of the members of an association of persons cooperating for the production and distribution of the means of personal life.
We may now turn to consider the grounds of political obligation. The question is often put in the form, ‘Why ought I to obey the law?’ But in this form the question is too imprecise to be answered without qualification. For firstly, it is metaphorical. Strictly speaking, I cannot obey a law, but only a person; and in a derivative sense, a command addressed to me by a person. But I am not under an obligation to obey the commands of any legal functionary except in so far as he is acting within the authority with which the law invests him. If a policeman were to order me to hand over my watch and pocket book to him I should be under no obligation to obey him, unless he could show legal authority for the demand* We must amend the question, and ask, ‘Why ought I to conform to the law?’ But again, this question cannot be answered without qualification. The law does not require an unqualified conformity. Suppose that I am the eldest of three brothers, and that my father dies intestate in a society in which the law of inheritance gives me the right to be his sole heir. If I get my three brothers together and say to them, ‘Let us divide our father's property into four equal parts and each take one share’, I do not conform to the law, yet the law does not object. I am free to act as I please, provided all the persons affected are satisfied. It is indeed quite common for a legal officer to suggest to the parties to a legal dispute that they would be well advised to settle their dispute out of court. It is important to recognize that the law does not act automatically, but only if a complaint has been laid; even if, in certain types of case, the State makes it the duty of one of its functionaries to see that a complaint is laid. It is clear, then, that we are not under an unconditional obligation to conform our actions to the law.
We must go farther, however. If it should happen that conformity to the law would involve me in acting immorally, or even in doing something which to the best of my judgment would be immoral, I am under a moral obligation to refuse to conform to the law. Whatever obligation I may have in respect of the law, it certainly cannot take precedence of a moral obligation.
Does this mean that there are two kinds of obligation, one moral, the other political, and that political obligation is binding on me provided it is compatible with my moral obligation? Such a separation of moral and political obligation could only be maintained theoretically. It is impossible in practice to divide my activities into two kinds—those which are to be judged morally and those which are to be judged politically. Even if political obligation does not cover the whole field of my behaviour, morality certainly does. We cannot just distinguish morals and politics, and leave it at that; we must know their relation to one another, even if only to enable us to devise laws which will not come into conflict with the requirements of morality.
The proper answer, if our earlier analysis is correct, must be that political obligation is a derivative and indirect moral obligation. We have a moral obligation to be just, to act always in a manner that is fair to all those persons who are affected by our actions. In our direct dealings with other people we can discharge this obligation directly, so far as an agreement exists or can be reached between us. But where our actions affect the fortunes of people whom we do not know; where the effect of our actions upon them is unknown to us; where our practical relations are indirect, we cannot act justly on our own judgment, however much we may wish to do so. In this field the justice of our actions depends upon a system of law which automatically achieves the adjustment which we require. The moral obligation to act justly then carries with it a derivative obligation to maintain the means to justice, and this is a system of effective law. We have, therefore, a moral obligation to maintain the law as the necessary means to justice. Here, if anywhere, to will the end is to will the means to it.
This moral obligation is not discharged simply by refraining from transgressing the particular laws which are enforced by the state. There may, on occasion, be an obligation to refuse to conform to a law. In that case, however, the obligation must be to act in a way which is compatible with maintaining the system of law and which aims at its amendment, not its abrogation; in a way that makes law not less but more effective. In general, this must mean that in refusing to conform to the law I recognize the law, and the duty of the State to apply the law; and that I am prepared to accept whatever penalty the courts may decide to enforce against me. In so doing I do not recognize that the law is just, only that the law is the law, and that the law is a necessary means to justice. What I may not do is to make myself judge in my own case; and the reason for this is that justice refers to my indirect relations to other persons. The claim to be treated justly does indeed refer to my private interests, but not in themselves; rather in relation to those of all others who are affected by my actions. The claim to justice is a claim to have my interests considered equally with those of all the others, and this can only be settled by a general rule which is external to the particular claim I make. My case must be subsumed under a general principle which is the same for all like cases. This is the significance of ‘equality before the law’; of the principle that each must count for one and nobody for more than one. It is the negative aspect of personal equality. Its negativity lies in this, that it concerns the relations of individuals who co-operate without being in direct personal relation to one another. The effect of the behaviour of one of us upon the others is in such cases purely de facto, and not matter of intention. What makes these relations personal, though indirect, is that each of us intends to maintain the system of co-operation in general. The relation between any two persons in such a system is indirectly intentional; it is a relation of their functions in the system rather than of themselves as persons.
It would not serve our formal purpose to elaborate the treatment of this issue farther, in spite of the many interesting questions which it raises. The central point is that law, and the structure of the State which law requires, is a system of devices. The State, as the legal organization of society, is essentially pragmatic: it is the technological aspect of society. Consequently, its only value lies in its efficiency: it is a means, not an end, and has no intrinsic value in itself. It is therefore a radical error to treat the law, or the State which is the creature of law, as if it were self-justifying or had any raison d'être other than its usefulness. The State is a public utility, and should be treated and judged as such. It is a dangerous error to personalize the State and to attribute it to characters or qualities which belong only to human beings. Above all, to feel for the State the kind of reverence, for the law the sort of respect, that is appropriate to persons, is an emotional unreason, the very essence of superstition. To worship the State is to indulge in idolatry. To personify the State is to pervert it, so that it tends to the destruction of society, not to its preservation.
I say this advisedly, weighing my words. For if I am not mistaken, we live in a society which is becoming increasingly a prey to this superstition, at a point in history where the destruction of personal values to which it must lead is likely to be swift and catastrophic. The root of the error is to be found in the illusions of the romantic movement, and it consists in assigning religious functions to the State; in looking to political organization to create community amongst men. ‘Liberty, equality and fraternity’ do, as we have recognized, constitute community. For this very reason they cannot be achieved by organization; yet the democratic revolutions proclaimed them as the goal of politics. To create community is to make friendship the form of all personal relations. This is a religious task, which can only be performed through the transformation of the motives of our behaviour. Rousseau proposed to ‘take men as they are, and States as they ought to be’, proclaiming thereby that there is no need to change men, but only to provide the political institutions which will allow their natural goodness to express itself. But the modern abolition of sin is only one form of the idealistic illusion that we can abolish facts by refusing to take account of them. Having deceived ourselves in this fashion, we can see no harm in assigning a religious function to the politician or in looking to the State for the salvation of the world. To do this is to pervert the State and to ensure failure and frustration.
Law then is a technological device, and the State is a set of technical devices for the development and maintenance of law. Now the value of any device lies wholly in its efficiency. To personalize the State, to assign it the religious function of creating community, to make it an end in itself and ascribe to it an intrinsic value, is, in fact, to value efficiency for its own sake. It is to make power the supreme good, and personal life a struggle for power. This is the height of unreason. For power is merely a general term for the means of action. To make power an end is to invert the logical relation between means and end. This is indeed possible, and in certain circumstances justifiable. For there are types of power which are general, in the sense that they can be used as a means to a number of different ends. Consequently, it is possible to intend the accumulation of power without deciding in advance what end it shall be used to secure. The accumulation of wealth, the accumulation of knowledge, the accumulation of territory and many other general means of action can be pursued for their own sake, simply by postponing the question of the use to be made of them in the long run. But if the question is not postponed but ignored, there arises a conception of power as an absolute end, and corresponding to it a way of life which consists in the exploitation of power for its own sake. The right thing to do becomes whatever the available manes makes possible.
The State is a device, we have said; but we must now add that it is a necessary device which cannot be dispensed with or exchanged for any other, so soon at least as the necessary cooperation in society requires an adjustment of indirect human relations. Both Aristotle and Rousseau recognized that the condition of the free society which was their ideal depends upon all its members being able to meet together in one assembly and so to be in direct relation with one another. A mere extension of numbers to the point where this becomes physically impossible makes law enforced by the State the only means of escaping anarchy; the only way in which the peace can be kept. This necessity for politics gives the State a special character as a device. It is a device which is necessary beyond an early stage of social development for the very possibility of civilized human existence. This invests the State with an absolute character which other devices do not possess, and which gives it a claim upon us which they cannot have. Without justice, social co-operation is impossible, without law, justice is impossible and without power law is futile and ineffective, a mere ideal. We have therefore a moral obligation to maintain the law and to secure its efficiency.
But the necessity of law, even its absolute necessity, makes no difference to its pragmatic character; it tends rather to make the misuse of law more dangerous. For if the apperception of any society becomes predominantly pragmatic; if power becomes the end rather than the means, then the power of the State becomes absolute, since it is the power which determines, through law, the exercise of all power. The will to power necessarily results in the apotheosis of the State: for it makes the State the author of society and society the creature of the State. Law becomes not the means to justice but the criterion of justice. Morality becomes the system of actions which maintain and increase the power of the State; and this the State alone can determine. Moreover, the indirect or economic relations of persons then become their defining characters; every man is a centre of power at the command of the State, and the use to which he is put is for the State to decide. If the State has no use for him then he has no value, and therefore no right to live. This is the genesis of great Leviathan, ‘that mortal God’, as Hobbes calls it, to which we owe our being and our defence. But we do not need to turn back to Hobbes to recognize the beast, accurate though Hobbes's description of him is. We ourselves, in our generation, have assisted at his rebirth.
Leviathan is not merely a monster, but a fabulous monster; the creature of a terrified imagination. If we track the State to its lair, what shall we find? Merely a collection of overworked and worried gentlemen, not at all unlike ourselves, doing their best to keep the machinery of government working as well as may be, and hard put to it to keep up appearances. They are, like ourselves, subject to the illusion of power. If we expect them to work miracles, we flatter them, and tempt them to think they are supermen. If we insist that it is their business to make peace on earth and hand us the millennium on a platter, what will happen? Those of them who are wise enough to know their limitations, and to be immune to the gross adulation of their fellows, will resign; and government will be carried on only by megalomaniacs, who are capable of believing themselves possessed of superhuman attributes and whose lust for power is the measure of their weakness. There is no need to wonder how it comes about that a neurotic visionary like Hitler can come to control the destinies of a great nation, nor that he uses his power in a mad fury of meaningless destruction. We know quite well that this is how fear works in human relations. We have discussed already, in considering the relation of mother and child, that interplay of love and fear that generates hatred, and finds its natural expression in destructive fury. What we forget is that the State is merely a set of devices to make law and to make it effective, and that law is a device for securing justice. Like any device it can be misused. It can be used to perpetuate or to extend injustice. The problematic of politics works in terms of the antithesis of ‘just’ and ‘unjust’. The problem is to see that the devices of government are used only for the purpose for which they are designed.
So we are brought back to the question of justice. What is justice? we ask. How are we to know what is just and what is unjust in human relations? Can there be any other standard of justice than the law itself? This is a proper question indeed, yet it is not the primary question. The really important question is, ‘Do we intend justice or not?’ Justice is an aspect of morality; it is a restriction which I impose on my own power for the sake of others. To be fair in my dealings with others means that I do not exploit their weakness to my own advantage. To intend justice is to intend that my own claim shall not take precedence of the claims of others. Justice is an obligation that each of us has to other people. I cannot be just to myself except in a strained and metaphorical sense. My political obligation to maintain the law is derived from this moral obligation. It rests upon an intention to see to it that my freedom of action does not directly or indirectly injure anyone who is affected by it. Now the law is a mere device. It has neither hands nor feet. To be effective it must be operated; and the power which operates it is derived from all those against whom it operates as a restriction on their freedom. If the power of the State is not to be misused, then those whose power maintains it—that is, the society whose law it is—must intend justice. So far as a society intends justice, the law will be properly used; so far as this is not the general intention law will inevitably be misused. It will be used to maintain a special advantage—to secure a privileged position—of one person or group or nation in relation to others; and so as a device for denying justice.
The primary presupposition of law is then the will to justice in society. The second presupposition is a sense of what is just and what is unjust. This sense of justice implies an actual society in which a norm of co-operation has already been established, and which has become habitual. The fact that it works without outcry from people who feel unjustly treated is sufficient guarantee that it is felt to be generally fair and reasonably just. Thus the State presupposes society as an accepted system of cooperation which is ‘the custom’. Custom, as a working system of social habits, is simply what is considered just in the indirect relations of persons. The immediate presupposition of any law is, then, custom; and from this point of view law begins as a device for fixing and formulating the custom of a society.
But on the other hand there would be no need for this device unless the custom was uncertain or under criticism. If the custom needs to be formulated and enforced it must be under practical criticism at least, in the sense that some section of the society is abandoning the established habits of social cooperation. Now habits can only be changed deliberately; and for any change in habit there must be a reason, whether good or bad. The change itself is therefore a claim that the custom is to that extent unjust. Law, then, comes into existence when justice has become problematic. There is a claim that injustice is being done. It is the business of a court of law to arbitrate this claim, and to make any necessary adjustment. The law, from this point of view, is an instrument for the modification of custom in the interest of justice.
These two aspects of the law seem to be in contradiction. How can law be at once the description of custom and a device for changing it? The answer lies in the nature of custom. Habit is only the negative aspect of action, necessary to its support. The conditions of co-operation may change, and the traditional habits may be ineffective in the new conditions. Any substantial change in the economic system is always liable to enforce a change in habits of co-operation. To maintain justice it is not enough to enforce the old habits in the new situation. The formulation of custom is therefore the necessary means to its modification; and the overriding condition of such a modification is that it must maintain effective co-operation even while modifying it. So far as a modification of law intends a modification of social behaviour it is ineffective unless the new mode of behaviour becomes habitual. The law is not a command. This is already a personification which tends to pervert the function of law. Law is, in this aspect, a device for replacing old habits by new habits, without destroying the system of social habit in the process, that is to say, the adjustment of indirect personal relations which has been already secured.
If the law is a device, if the State is a pragmatic construction, it requires justification, and it can only be justified by reference to the end for which it is constructed. It is not an end in itself, nor is it intrinsically good. It cannot rightfully claim autonomy. The question to be asked is always, ‘How far does the State succeed in achieving and maintaining justice in the indirect or economic relations of men?’ This question cannot be answered by the law or by its officers. The appeal must be to the sense of justice of all those affected, and the pragmatic evidence of this is a common consent; that there is absence of complaint; that the peace is kept and co-operation is maintained smoothly and without compulsion. The sense of justice in a society may, of course, be confused, insensitive and poorly developed. But it is the only pragmatic standard available. This, it may be said, cannot guarantee absolute justice. But is such a concept as ‘absolute justice’ ever meaningful, any more than a concept of absolute mercy would be? If all parties to a bargain are satisfied with their bargain then the arrangement is fair to them all. Justice, after all, is the negative aspect of morality only, the minimum of morality which can be demanded as necessary to the co-operation of free agents; the negative of habitual rightness in action without which all the positive aspects of morality lose their rightness.
Law may be misused, as we have seen. But it may also be inadequate as an instrument for its purpose. One aspect of this inadequacy is of special significance at the present time. The presupposition of law is an economic nexus of indirect relations which constitutes a de facto unity of co-operation. For this reason law will be inadequate to its purpose unless all the persons whose actions affect one another, and so may give rise to injustice, come within the scope of a single system of law. Where trade develops between independent States to a point at which their citizens become interdependent in a settled system of economic relations, there is created a society without a common law to secure justice between its members. The various independent systems of law are then incapable of securing full justice even within the territories which determine their limits. Each separate State must seek to use its power to control the whole economy of which it is only a part in the interests of its own citizens. So law is perverted into an instrument for the defence of privilege, and for the perpetuation of injustice. Unless the independent States can unite, by common consent, under one system of effective law, they must destroy one another in a struggle for power. This happened in ancient Greece; and destroyed the Greek way of life. It is happening today on a scale that involves the whole world.
The principle which governs such a situation is this. Without justice, co-operation becomes impossible. If the co-operation is compulsory it must then become a co-operation in mutual self-destruction. This is merely a restatement on a large scale of the principles of personal motivation which we discovered in the relation of mother and child. The dominance of negative motivation in the relation of persons destroys the possibility of friendship and finds its ultimate and natural expression in an effort to destroy the other. In the political field the condition of avoiding this catastrophe depends upon intending justice: and this is incompatible with the worship of the State, which is the worship of power. The symbol of this worship is the personification of the State, and for this reason it is all important that we should treat the law, and the State which is the creature of law, for no less but also for no more than it is—a necessary system of devices for achieving and maintaining justice. If we do this, we will then realize that justice itself is not enough. For justice is only the negative aspect of morality, and itself is for the sake of friendship.