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they conceive of the division of labor between normative political conceptions on the one hand and basic psychological principles on the other. With a principle so general and abstract as that of utility, even as Mill understands it, a rather specific psychology seems required to get definite conclusions. Whereas it seems that the psychology of justice as fairness can perhaps be more general in ways to be explained later.
§2. Mill’s Account of Justice
1. In Chapter V, “On the Connection between Justice and Utility,” the long final chapter of Utilitarianism—it constitutes over a third of the essay— Mill gives his account of justice. He has saved this topic for a full treatment, as he thinks the apparent inconsistency between the principle of utility and our convictions and sentiments of justice is the only real difficulty in the utilitarian theory of morals (V: ¶38). As is evident at times from his replies, he thinks that the many other objections he examines are based on misunderstandings and worse. He now comes to what for him must have been a real problem. His wonderful discussion of this question must be the fruit of his own searching inquiries.
and equal persons as those who can play the role of fully cooperating members over a complete life. The normative and political conception of the person in justice as fairness is tied to persons’ capacities as citizens. They are free and equal, and have the two moral powers: (1) a capacity for a sense of justice (the ability to understand, apply, and act from the principles of political justice that specify the fair terms of cooperation); and (2) a capacity for a conception of the good (to have, revise, and rationally to pursue an ordered family of final ends and aims that specifies a person’s conception of what is of value in human life—normally set within a comprehensive religious, philosophical, or moral doctrine). They also have the powers of reason, inference, and judgment required to exercise the two moral powers.
They are equal in that they are all regarded as having, to the essential minimum degree, the moral powers necessary to engage in social cooperation over a complete life, and to take part in society as equal citizens. They are free in that they conceive of themselves and of one another as having the moral power to have a conception of the good, and the ability to revise and change it on reasonable and rational grounds if they so desire. There is no loss of their identity if they choose to do so. They are free also in that they consider themselves as self-authenticating sources of valid claims—as being entitled to make claims on their institutions so as to advance their conceptions of the good (Restatement, pp. 18– 23).
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My outline of Mill’s argument in Chapter V on justice is as follows:
First part: ¶¶1–3: Statement of the problem.
Second part: ¶¶4–10: Six kinds of just and unjust conduct. Third part: ¶¶11–15: Analysis of the Concept of Justice.
Fourth part: ¶¶16–25: (a) Sentiment of justice; and (b) Basis of rights in (latter in ¶¶24–25).
Fifth part: ¶¶26–31: Conflict of precepts of justice settled only by the principle of utility.
Sixth part: ¶¶32–38: Justice defined as the rules necessary for the essentials of human well-being.
2. Two general comments:
(a) In the first part of the argument, Mill states the problem for Chapter V as a whole as follows: The sentiment, or sense, of justice has great psychological intensity and it is also in apparent conflict with the principle of utility. So the question is: Can this sentiment nevertheless be accounted for in ways consistent with the principle of utility? What Mill wants to show is that it can. He argues that (a) given the kinds of things that we consider to be just and unjust (second part), and (b) given our psychological makeup, we can explain how our sense of justice arises and why it has the psychological intensity it does (fourth part). Mill states what he hopes to show in V: ¶3: “If, in everything which men are accustomed to characterize as just or unjust, some one common attribute or collection of attributes is always present, we may judge whether this particular attribute or combination of attributes would be capable of gathering around it a sentiment of that peculiar character and intensity by virtue of the general laws of our emotional constitution, or whether the sentiment is inexplicable, and requires to be regarded as a special provision of Nature.”
Mill will try to show, of course, that the first is true and that the intensity of the sense of injustice can be accounted for consistent both with the principle of utility and with our moral psychology. Mill sums up his argument in V: ¶23: “. . . the sentiment of justice appears to me to be the animal desire to repel or retaliate a hurt or damage to oneself, or to those with whom one sympathizes, widened so as to include all persons, by the human capacity of enlarged sympathy, and the human conception of intelligent self-interest. From the latter elements [enlarged sympathy and intelligent self-interest] the feeling derives its morality; from the former [the
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animal desire to repel hurt to oneself], its peculiar impressiveness, and energy of self-assertion.”
Thus, the sense of justice does not support an intuitionist view that justice is something sui generis. Rather, Mill holds that it fits perfectly with a utilitarian account of justice and a plausible psychological account of how that sentiment arises. Justice is not an independent and separate standard along side of and possibly having great weight contrary to the principle of utility. Instead, it is derivative from it.
(b) The last two parts of the argument, the fifth and sixth, exemplify the kind of justification Mill tried to give the principle of utility: namely, that although there are precepts and standards that apparently conflict with that principle, careful reflection shows that such is not the case. This supports the idea we noted before: namely, that in his justification of the principle of utility Mill claimed it is the only moral principle with sufficient generality and the appropriate content to serve as the first principle of a moral and political doctrine.
This form of argument is nicely displayed in the fifth part: ¶¶26–31, in which he argues that the conflict between the various precepts of justice can be resolved only by an appeal to a higher principle than any of those precepts. He thinks only the principle of utility can, in the end, serve this purpose. Thus, he says, for example, at V: ¶28 the following about those who agree that an action is unjust, but disagree with each other about their reasons for doing so: “. . . so long as the question is argued as one of justice simply, without going down to the principles which lie under justice and are the source of its authority, I am unable to see how any of these reasoners can be refuted.” The final ¶¶32 to 38 give the remaining parts of Mill’s justification for his principle of utility.
§3. The Place of Justice in Morality
1. In the third part of Chapter V, Mill surveys various kinds of actions and institutions that general moral opinion regards as just and unjust. Here he is, so to speak, describing the data: his account of justice as derived from utility and the principles of moral psychology must fit the points he makes in this survey.
Mill makes six points, summarized briefly as follows:
(a) It is commonly thought unjust to violate, and just to respect, peo-
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ple’s legal rights (V: ¶5). (Here it is implicitly assumed that the law is not unjust.)
(b)But since some laws may be unjust, people sometimes have been given legal rights they ought not to have; and they are sometimes denied legal rights they ought to have. Thus a second kind of injustice is taking or withholding from people that to which they have a moral right (V: ¶6).
(c)It is just that people should have that which they deserve, whether it be good or evil, and unjust that they have what they don’t deserve—again, good or evil (V: ¶7).
(d)It is unjust to break faith or to violate agreements; as well as to disappoint legitimate expectations (V: ¶8).
(e)When rights are concerned, it is unjust to be partial, that is, to be influenced by considerations that ought not to bear on the case at hand. Im- partiality—being influenced exclusively by the relevant considerations—is an obligation of justice on persons such as judges, preceptors, and parents who have a judicial capacity (V: ¶9).
(f ) Closely allied to impartiality is equality in the sense of natural justice: that is, of giving equal protection to the rights of all (V: ¶10).
2. Following this survey of the data, Mill locates where the concept of justice falls within his doctrine of utilitarianism as a whole. Consider the schema in Figure 6.
The evaluative point of view is my term—not Mill’s—for the most general concept of value: all forms of value that Mill recognizes, moral and non-moral, fall under it. Mill’s classification is not carefully presented. Still it serves his purpose of distinguishing morality (right and wrong) from the enjoyable and the admirable and the opportune, or expedient; and then, under morality, of distinguishing justice from charity and benevolence.
Mill’s definition of morality, of right and wrong, goes like this. Right ac-
Figure 6. Mill: The evaluative point of view.
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tions are actions that ought to be done, and wrong actions are actions that ought not to be done, and regarding which the failure to act appropriately ought to be punished in some way. They may be punished either by law, or by public disapprobation (moral opinion), or by reproaches of conscience. Here there are three very different kinds of sanctions. Considerations of utility settle whether an action ought to be done or ought not to be done. They also settle which sanction it is best to apply in different kinds of cases. Here “reproaches of conscience” refers indirectly to moral education. Some actions are best sanctioned by educating people so that their consciences reproach them for doing those actions.
Thus to summarize Mill’s idea: an action is wrong, say, if it is a kind of action that not only has bad consequences when generally done, but its consequences are so bad that it increases overall social utility to establish the appropriate sanctions to ensure a certain degree of compliance (not necessarily perfect compliance, as this might require draconian measures). Now setting up these sanctions is always costly in utility terms. It involves the costs of the police, law courts, and prisons. The sanctions of public moral opinion and of conscience also involve disutilities, although less obvious ones. Nevertheless, the gain, on balance, in the case of wrong actions is judged sufficient to justify imposing them.
3. Mill thinks that what distinguishes the just and the unjust within the wider category of rights and wrongs, e.g. from charity or beneficence and the lack of it, is the idea of a personal right. He says: “Justice implies something which it is not only right to do, and wrong not to do, but which some individual [some assignable] person can claim from us as his moral right” (V: ¶15). By contrast, no individual, assignable person has a moral right to our beneficence or charity. The “perfect” duties of justice have correlative rights in some assignable persons; and these persons have a valid claim against society that their rights be guaranteed. Mill says later: “When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion. If he has what we consider a sufficient claim, on whatever account, to have something guaranteed to him by society, we say that he has a right to it” (V: ¶24). “To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. If the objector goes on to ask why it ought, I can give him no other reason than general utility” (V: ¶25).
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