<%BANNER%>
HIDE
 Half Title
 Title Page
 Dedication
 Preface
 Table of Contents
 Preface
 Moral norms and human affairs
 The good
 The right
 Justice
 Power and punishment
 Epilogue
 Bibliography
 Index of names
 Index of subjects














PRIVATE ITEM
Digitization of this item is currently in progress.
Moral norms and moral order
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00100503/00001
 Material Information
Title: Moral norms and moral order the philosophy of human affairs
Physical Description: xiv, 112 p. : ; 23 cm.
Language: English
Creator: Banner, William Augustus
Publisher: University Presses of Florida
Place of Publication: Gainesville
Gainesville
Publication Date: c1981
Copyright Date: 1981
 Subjects
Subjects / Keywords: Ethics   ( lcsh )
Genre: bibliography   ( marcgt )
non-fiction   ( marcgt )
 Notes
Bibliography: Bibliography: p. 102-105.
Statement of Responsibility: William Augustus Banner.
General Note: "A University of Florida book."
General Note: Includes index.
 Record Information
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: oclc - 06861476
lccn - 80024206
isbn - 0813006619
Classification: lcc - BJ1012 .B363
ddc - 170
System ID: UF00100503:00001

Table of Contents
    Half Title
        Page i
        Page ii
    Title Page
        Page iii
        Page iv
    Dedication
        Page v
        Page vi
    Preface
        Page vii
        Page viii
    Table of Contents
        Page ix
        Page x
    Preface
        Page xi
        Page xii
        Page xiii
        Page xiv
    Moral norms and human affairs
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
    The good
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
    The right
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
    Justice
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
    Power and punishment
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
        Page 79
        Page 80
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
        Page 87
        Page 88
        Page 89
        Page 90
        Page 91
        Page 92
        Page 93
    Epilogue
        Page 94
        Page 95
        Page 96
        Page 97
        Page 98
        Page 99
        Page 100
        Page 101
    Bibliography
        Page 102
        Page 103
        Page 104
        Page 105
    Index of names
        Page 106
        Page 107
    Index of subjects
        Page 108
        Page 109
        Page 110
        Page 111
        Page 112
Full Text






Moral Norms and Moral Order















Moral Norms and Moral Order

The Philosophy of Human Affairs







William Augustus Banner












A University of Florida Book
University Presses of Florida
Gainesville




B3J
/ 0 / C ,I








University Presses of Florida is the central agency for scholarly
publishing of the State of Florida's university system. Its offices are
located at 15 NW 15th Street, Gainesville, FL 32603. Works pub-
lished by University Presses of Florida are evaluated and selected for
publication by a faculty editorial committee of any one of Florida's
nine public universities: Florida A&M University (Tallahassee),
Florida Atlantic University (Boca Raton), Florida International
University (Miami), Florida State University (Tallahassee), University
of Central Florida (Orlando), University of Florida (Gainesville),
University of North Florida (Jacksonville), University of South
Florida (Tampa), University of West Florida (Pensacola).








Library of Congress Cataloging in Publication Data
Banner, William Augustus.
Moral norms and moral order.
"A University of Florida book."
Includes bibliographical references and index.
1. Ethics. I. Title.
BJ1012.B363 170 80-24206
ISBN 0-8130-0661-9








Copyright 1981 by the Board of Regents of the State of Florida


PRINTED IN USA




















To Beatrice, Anne, and Perry






















Is Justice . variable or mutable? No; but the times, rather, which
Justice governs, are not like one another; for they are times.

St. Augustine, The Confessions, III, vii
















Contents












Preface, vii

Chapter 1: Moral Norms and Human Affairs, 1
Norm and Practice, 1
Reason and Sentiment in Morals, 6
Morality and Public Policy, 9

Chapter 2: The Good, 13
The Notion of Good, 13
Intrinsic Good and the Useful, 18
Intrinsic Good: The Good Man, 21
The Final Good and the Rights of Persons, 28

Chapter 3: The Right, 32
Actions and Consequences, 32
Actions and Intentions, 34
Right Actions and the Rights of Persons, 40

Chapter 4: Justice, 46
Morality and Law: The Historic Setting, 46
The Search for an Alternative to Positivism, 52
An Esquisse, 63

Chapter 5: Power and Punishment, 72
Introduction, 72
Punishment as Retaliation or Countersuffering, 75
ix





x Contents

Punishment as Correction, 77
Punishment as Deterrence, 78
Punishment as Restitution or Restoration, 83
Restitution and Responsibility, 90

Chapter 6: Epilogue, 94
Norms of Human Affairs, 94
The Rational Moral Order, 97

Selected Bibliography, 102

Index of Names, 106

Index of Subjects, 108











Preface


ARISTOTLE, in the concluding section of the Nicomachean
Ethics, speaks of his ethical theory as the philosophy of human
affairs (0 irepi rd avOpchnrwa ctXoaoo'a). In summarizing his
lengthy treatment of moral questions, Aristotle is satisfied that
adequate discussion has been given to happiness and virtue and
to friendship and pleasure as intrinsic goods. He recognizes at
the same time that virtue is something to be practiced as well as
possessed, and that attention must be given to the ways in
which the practice of virtue, which is always difficult, can be
supported against the allurement of passion. This brings Aris-
totle to speak of the function of law and public regulation in
the nurture of the good man, a matter to be pursued in a
separate treatise on politics. While there are individual writings
on ethics and politics, it is clear that Aristotle thought of the
two investigations as having the same task, namely, the elucida-
tion of moral nobility and justice (rd 6~ KaXcd Kai trd itata).
This book has been written in agreement with Aristotle's
inclusive view of human affairs as a subject embracing, as one
whole, matters that today would be regarded as properly
treated under separate headings of ethics, politics, and law.
Distinctions introduced into a complex subject matter are use-
xi





Moral Norms and Moral Order


ful, particularly in enabling a careful and tidy consideration of
compartmentalized problems. But such distinctions need not
be allowed to break up a genuine unity of experience and mean-
ing. Human existence being naturally social, the moral life has
the unity of the norm or norms that govern at once both per-
sonal and public affairs. What an individual determines to make
of his life is of course a personal matter; in carrying out this
effort, what an individual requires of resources not his own is a
public matter. Both the personal and the public pertain to the
quality of individual life. The concerns of individuals as citizens
involve simply the translation of human aspiration into public
policies, which prescribe the duties of organized effort. Politi-
cal life is the activity of persons in the collective pursuit of
individual well-being. Ethics and politics are thus concerned
with the same realm of existence and with the same principal
notions, namely, the good, the right, and the just.
Aristotle speaks of law as a rule of reason that has compul-
sory force. This view of law as rational moral governance, di-
rected to the common good, has been opposed by the general
argument that law is independent of morality and that law is
validated by its own norm of legitimacy. Despite the preten-
sions of its advocates to present only what is cogent and rigor-
ous, the latter position is clearly incompatible not only with
the recognition of the rights of persons but also with the recog-
nition that the means of control and coercion must be such as
reasonable individuals would devise in their own interest.
One of the most perplexing problems of morality is the treat-
ment of individuals who inflict injury upon others. In respect
for the rights of persons, attention must be given to wrong-
doing and to punishment as accountability for wrongdoing.
The moral ordering of punishment has for a long time been
hampered by confusions concerning the power of society or of
the state over its members, particularly those members who are
identified as wrongdoers. It is the task of ethical discussion, in
correction of these confusions, to reach a determination of
punishment that is in conformity with what is both fair and
humane. What is defended in these pages is the idea of punish-
ment as restoration or restitution, as an alternative to the theo-


xii





Preface xiii

ries of retaliation (counter-suffering), correction, and deter-
rence.
On public questions in general, this book presents an alter-
native to two positions that have had wide influence in the
contemporary world, namely, legal positivism and utilitarian-
ism. It is believed, on the one side, that the concern of the legal
positivist is too narrow to treat adequately of pressing social
questions, inasmuch as the positivist's attention is given to the
consideration of 'law' or 'social policy' as it is. Such a consider-
ation subtracts from the character of justice as a moral norm
that embraces the guarantees that citizens owe to one another
in the imposition of compensation for injuries, in the exchange
of goods and services, and in the preservation of the social order
itself.
One finds, on the other side, that the views of the utilitarian
are too vague to provide a basis for an order of 'reciprocal
freedom' or for the reform of an existing order where freedom
does not obtain. Utilitarianism, in a word, sets forth the maxi-
mizing of good (as pleasure, satisfaction, enjoyment, 'true good
for the world as a whole') as the social end to be sought, just as
it sets forth 'conduciveness to good' as the standard by which
conduct is to be appraised as right or wrong. While one can
hardly quarrel with the idea of enlightened interest directed
toward maximum human felicity, one looks in vain for the
pattern of good or goods to be generated for 'the greatest num-
ber' through action guided by benevolence. It is chiefly with
respect to the content of justice that utilitarian ideas about the
promotion of human good are disappointing, a weakness of
utilitarianism more apparent in some writers than in others.
It is recognized that the issues discussed in this book are
broad and difficult. It is intended that the treatment of these
matters will contribute to the resolution of some difficulties.
The question at bottom is that of the rights and duties of the
individual in an organized society. If it is not tolerable for
individuals in society to have simply what they wish or to do
simply as they please, it is important and necessary to know
what one is justified in having without depriving others and
what one can do without injuring others.





xiv Moral Norms and Moral Order

There is always the hope that what one has written will find
acceptance, especially with those individuals who have been
one's mentors over a period of many years. A work worthy of
such acceptance would settle in some measure a debt to persons
whose qualities of mind and spirit exemplified a pattern of
"plain living and high thinking" and affirmed the greatness and
usefulness of teaching. Beyond this, I wish to say a word of
thanks to the editors of University Presses of Florida for their
consideration and helpfulness. To my wife, Beatrice, I express
my gratitude for support in this task as in all other things.
Washington, D. C. / January, 1980 W. A. B.










J Moral Norms and
Human Affairs











Norm and Practice
A norm is a canon, or standard, of measure or estimation. The
carpenter's norm is a fixed device for ascertaining an angle of
ninety degrees. The norm of the carpenter, as a device, must be
said to indicate rather than to establish what in carpentry is
taken to be 'square', or 'true'. One is not likely to say that the
'rightness' of the carpenter's joint derives from the rightness or
right use of the carpenter's rule. Rather, one would say that the
norm represents what is indeed a right angle as distinct from
any and all appearances of rightness which may mislead the
carpenter in his work. A right angle is simply what it is, and the
carpenter's norm exhibits for the practical purposes of carpen-
try what a right angle is just as a correct map exhibits the
contour of the land or the contour of the road. Similarly, a
moral norm is a standard by which human activity and action
can be judged to be approximations in one degree or another to
what is actual.
There are, of course, many uses of the term 'norm' which do
not appear to enjoy the simplicity and straightforwardness of
coincidence with what obtains independently as the actual. In
many cases, in speaking of norms of human behavior, it would
appear that the norm does establish rather than indicate what is
1





Moral Norms and Moral Order


optimum in possibility. It is perhaps in this respect that one
thinks of a norm such as 'the representative firm' or 'the repre-
sentative college'. A firm may be representative simply as the
firm whose business practices or merchandising techniques
have dominated in a certain trade and have been imitated by
other firms in the same trade and in other trades. One may
imagine that other firms might have set themselves up or been
accepted as 'representative' institutions under other circum-
stances or in other situations. Thus the status of the representa-
tive firm as a 'norm' would seem to indicate nothing beyond
the process or processes by which performance or success or
prominence was made possible. And it would be believed, ac-
cordingly, that there is no 'correct' or 'actual' way (in the
normative sense) of doing business that the representative firm
models,1 just as there is no correct or actual way of teaching
that the representative college exemplifies.
This view may well be extended to the whole of human
affairs, so as to maintain that there is no correct or optimal way
of doing anything. Such presumably was the position on hu-
man affairs of the ancient Sophists, who gave attention to how
it is, as social or political process, that moral and legal norms are
established and overthrown. On this view, of course, normative
considerations are merely part of the considerations of the
mechanics of success and power.2
One may, however, go beyond the description of how any
given practice came to exist and to prevail and argue that in
some way 'the representative firm' does exhibit 'correctness' or

1. Cf. Neill W. Chamberlain, The Firm: Micro-Economic Planning and
Action (New York: McGraw-Hill Book Company, 1962), p. 407: "There
is no 'logically objective' standard by which a company may judge itself.
... Even after making ... comparisons, it has no basis for asserting that its
performance (or that of any of its reference companies) is good or poor in
a definitive sense. It has no way of determining a theoretical or hypo-
thetical standard of excellence with which it may compare itself. ...
Experience constitutes the only basis for judging the quality of perfor-
mance, and the use of experience as a guide necessitates comparison with
others, and with one's own past."
2. Cf. W. K. C. Guthrie, The Sophists (Cambridge: Cambridge Univer-
sity Press, 1971), pp. 27-54, 164-75.





Moral Norms and Human Affairs 3

completeness of economic operation as the carpenter's rule
exhibits the 'rightness' of the right angle. Such correctness
would obtain in what may be referred to as "efficiency of
operation," "reliability of product," "reliability of service," or
"integrity of contract." And the suggestion would be that such
correctness should obtain for any firm or enterprise coming
forward to provide certain goods or services. The representative
firm would indicate, accordingly, what is actual or excellent in
human activity rather than reflect merely the energies of re-
sourceful and clever entrepreneurs.
If one follows this approach in human affairs, one would be
concerned not with the how of human practice but with the
wherefore. One would want to know on what basis a given
practice is commended as 'good practice'. One would ask, for
example, what case can be made for the relationship that ob-
tained between lords and serfs under manorial tenure, the con-
dition of serfs being described as follows:
... their characteristic disabilities were first, their ab-
sence of right of appeal to the king for justice, and sec-
ond, their absence of right over their own chattels and
holdings. Both disabilities made them helpless victims of
fiscal exploitation. A lord could tallage his villeins at his
will: he could exact fines from them, by reason of
their unfreedom.3
Doubtless a close knowledge of social conditions and social
exigencies would inform us as to certain causes or occasions of

3. Marion Gibbs, Feudal Order (New York: Henry Schuman, 1963),
pp. 90-91. Cf. Walter Ullman, The Individual and Society in the Middle
Ages (Baltimore: The Johns Hopkins Press, 1966), pp. 15, 17: "The
inequality of the members of society showed itself most manifestly in the
unequal treatment before the law, for the superior was treated differently
from an inferior. . subjects were not entitled to invoke the help of a law
court against a superior. .. those members of society who had no office
not only stood at the very bottom of the social ladder but also were
without public rights. The individual's standing within society was based
upon his office or his official function: the greater it was, the more scope
it had, the weightier it was, the more rights the individual had. As a mere
subject the individual was no more than a recipient of orders, of com-
mands, of the law. .. ."





Moral Norms and Moral Order


the practices of manorial tenure. It may be argued, accordingly,
that always some fact or facts of origin must be accepted as the
reason or reasons for the emergence of a rule or practice, and
that knowledge of such fact or facts of origin is the only empiri-
cal index of the 'good sense' or 'soundness' of a rule or practice.
But to be satisfied with this would be to allow that in a given
context there can be only one conceivable mode of life or
manner of conduct in support of some interest or in satisfac-
tion of some need. And this would be tantamount to saying
that, in a given situation, a particular direction in human affairs
can never be a mistake. What would be ignored, of course, is the
possibility that the prevailing rule or practice owes its being to
contingencies of decision and action that actually favored the
'worse' practice over the 'better'. One can recognize that a
prevailing rule or practice, as an ordering, is a social or political
phenomenon having a particular social or political genesis; one
can also recognize that a rule or practice, when viewed as one
among many possible orderings, involves a moral claim which
requires justification through moral intuition or moral argu-
ment.4
It is seen, accordingly, that the moral consideration of a rule
or practice involves a consideration of end as well as means,
that is, a consideration of what is fitting and preferable as a
human condition for all individuals to whom the rule or prac-
tice applies. A rule as an ordering is always an ordering of a
particular something; that is, an ordering supporting some spe-
cific end or ends rather than others and employing some partic-

4. Cf. William James, The Principles of Psychology (New York: Henry
Holt and Company, 1918), 2:672: "The moral principles which our men-
tal structure engenders are quite as little explicable in toto by habitual
experiences having bred inner cohesions. Rightness is not mere usualness,
wrongness not mere oddity, however numerous the facts which might be
invoked to prove such identity. Nor are the moral judgments those most
invariably and emphatically impressed on us by public opinion. The most
characteristically and peculiarly moral judgments that a man is ever called
on to make are in unprecedented cases and lonely emergencies, where no
popular rhetorical maxims can avail, and the hidden oracle alone can
speak; and it speaks often in favor of conduct quite unusual, and suicidal
as far as gaining popular approbation goes."





Moral Norms and Human Affairs


ular means rather than others to this end or ends. 'Order' and
'what is ordered' are distinguishable although inseparable
things, and one need not allow that any order whatsoever is
better than anarchy. What is ordered is a content that must be
appraised in terms of what is beneficial or harmful to particular
individuals or to individuals as members of a particular group or
class.
It is in considering the 'wherefore' rather than the 'how' of
any given rule or practice that one is able to see that a rule
cannot by its mere existence establish a norm in the moral
sense. A rule that is 'in effect' has only the status of what is
operative, that is, the status of 'what is made to work' through
sanctions of one sort or another. Of course, the student of
society or of law and government can confine himself to the
treatment of a rule as merely what is commanded or ordered,
and he can maintain, accordingly, that any presumed moral
deficiency of the rule does not affect its status and validity as
something that is to be obeyed. But this does not mean, as it has
been believed by some, that moral justification is extraneous to
the consideration of the validity of the rule.5 A rule may de-
serve to be disobeyed and the reasons for such disobedience
would presumably be forthcoming.
It is not at all instructive to say that a rule as social or legal
fact is something to be obeyed. The power or sanction that
enjoins obedience to a rule is really extrinsic to the rule itself.
What is often involved in talk about 'obedience' is a convenient
shift from what is to be obeyed (that is, what is ordered or
commanded) to obeying as the act of conforming to a 'valid'
law or rule. When Hans Kelsen, for example, speaks of the
Grundnorm as the standard that sets up and authorizes valid
rules,6 he is speaking of the elemental competence and effec-
tiveness that elicit obedience but do not provide, in moral
terms at least, justification for obedience. Kelsen, then, is really
confusing the issue in obtruding matters of efficacy and sanc-
tion upon the consideration of matters of justice and fairness,
under the guise of freeing the treatment of law and justice from

5. Cf. Hans Kelsen, Reine Recbtslehre (Vienna, 1960), pp. 67-71.
6. Kelsen, Reine Rechtslebre, p. 197.





Moral Norms and Moral Order


extraneous moral concerns. But if 'law' is always an 'ordering'
(as an arranging of means with respect to ends), the situation is
really the reverse as regards what is extraneous. And one must
say, then, that the concerns of the legal scientist or legal positiv-
ist rather than the concerns of the moral philosopher are pe-
ripheral if not alien to the determination of the validity of
rules and practices in a society.7

Reason and Sentiment in Morals
It is not uncommon in situations of conflict of interests to
appeal to what is a reasonable end to pursue or what is the
reasonable thing to do. This suggests that there is an appraisal
of purposes and a determination of the good and the right that
are independent of attitude and passion. This suggests also that
two or more individuals can recognize what is reasonable as the
genuine expression of their interests, if only after a long and
difficult process of discussion and debate. Bishop Butler, in the
eighteenth century, called attention to the place of reflection
in the moral life:
There is a principle of reflection in men, by which they
distinguish between, approve and disapprove their own
actions. We are plainly constituted such creatures as to
reflect upon our own nature. The mind can take a view of
what passes within itself, its propensions, aversions, pas-
sions, affections, as respecting such objects, and in such
degrees; and of the several actions consequent thereupon.
... And that this faculty tends to restrain men from doing
mischief to each other, and leads them to do good, is too
manifest to need being insisted upon. ... It is needless to
compare the respect [the principle of reflection] has to
private good, with the respect it has to public good; since
it plainly tends as much to the latter as to the former, and
is commonly thought to tend chiefly to the latter.8

7. Cf. Gustav Radbruch, Rechtsphilosophie, 6th ed. (Stuttgart: K. F.
Koehler, 1963), pp. 180-83.
8. Joseph Butler, Sermons on Human Nature, no. 1, inBritishMoral-
ists, ed. L. A. Selby-Bigge (Indianapolis: The Bobbs-Merrill Company,
Inc., 1964), 1:201-2.





Moral Norms and Human Affairs


Butler affirms the capacity of reason to indicate "how liable
we are to be led wrong by passion and private interest" and he
goes on to speak of the bearing of "reasonable good-will, and
the right behavior toward our fellow-creatures" upon the at-
tainment of the greatest public good.9 One is aware, of course,
that many social and legal scientists would be quick to say that
it is precisely the lack of agreement as to what is 'reasonable' in
behavior and the lack of hope of reaching agreement through
moral reflection that have inspired and supported efforts to
free all discussion of public rules from considerations of right-
ness and wrongness, of justice and injustice. And these social
and legal scientists would be joined by many moral philos-
ophers. As a matter of fact, the situation in moral philosophy
involves much more than attention to the variation and relativ-
ity of moral judgment. Contemporary moralists in impressive
numbers have adopted a skeptical posture, holding that moral
judgment in the very nature of the case cannot be cognitive.
Recent theories of moral valuation that have been influ-
enced by psychological and sociological analyses and 'findings'
have, on the one side, represented moral norms (and all moral
predicates such as 'good' and 'right') as projections of interests,
feelings, and attitudes peculiar to the individual or to groups of
individuals. This is the development that has come to be known
as ethical naturalism. 10 On the other side are the views of those
who have wished to avoid the somewhat harsh position of the
naturalists and to hold that there is something distinctly ethical
about moral judgments. The latter theorists have wished to
maintain, at the same time, that moral judgments are ascriptive
rather than cognitive." Thus one is left with a choice between
the naturalists who insist that the moralist must speak as a
behavioral scientist and those noncognitivists who concede

9. Butler, Sermons on Human Nature, no. 12, in British Moralists,
1:241-42.
10. Cf. C. D. Broad, Five Types of Ethical Theory (London: Rout-
ledge and Kegan Paul, Ltd., 1951), pp. 259-64. See also A. C. Ewing, The
Definition of Good (New York: The Macmillan Company, 1947), pp.
36-77.
11. Cf. George C. Kerner, The Revolution in Ethical Theory (New
York: Oxford University Press, 1966), pp. 40-96.





Moral Norms and Moral Order


that the moralist can speak as a moralist inasmuch as he wishes
only to inform us of his moral feelings or dispositions and
perhaps to move us to feel as he does.
It should be clear that it is impossible to inquire about the
correctness of rules and practices if the only accessible 'norms'
are those involved or associated with the interests and tastes of
individuals or groups of individuals. If moral judgment cannot
stand as an independent reckoning of what is good or right,
then prevailing practice as the expression of what certain indi-
viduals find pleasing or advantageous must be accepted as the
only real program of human affairs-and for as long as these
individuals find such practice to be to their pleasure or advan-
tage. One must say, then, either that the ethical is a domain of
cognition and truth or that the conduct of human affairs is
arbitrary and beyond discussion. And if the latter, then moral-
ity (as justice) is indeed the advantage of the stronger in-
dividual.
It is doubtful, however, that anyone concerned about his
interests in contest with the interests of others is prepared to
accept the elimination of reflection and debate from the realm
of morals. The situations in which individuals find themselves,
at any given time, are either better or worse for such individuals
than recognizable or conceivable alternatives. It would be a
tedious evasion of the most immediate issues of human life to
contend, for example, that an individual's views about 'free-
dom' are without public significance in the defense of his free-
dom against his unfreedom.
A discussion concerning moral alternatives is a genuine dis-
cussion or debate about human situations, even if one should
grant that the alternatives are, in some respects at least, in-
volved with expressions of feeling and attitude. In giving atten-
tion to the affective accompaniments of moral judgments,
there is always the temptation to think that such judgments are
merely or largely subjective, that is, that they are peculiar to
one individual or another and indicative of moral dispositions
rather than moral situations. But one must be reminded that a
judgment is always about something which is discriminable
through the terms of the judgment. Where forms of speech are





Moral Norms and Human Affairs


joined in declarative sentences, there is an involvement through
language in a common world of assertion and designation in
agreement or disagreement with other individuals. Anything
which can be mentioned can become a matter of discussion
within the rules of grammar and logic. It is certainly not ap-
parent that we cannot speak clearly and critically in moral
terms about persons, about the dignity of persons, and about
the rights and duties of persons in society as we speak clearly
and critically in appropriate terms about other subjects.

Morality and Public Policy
It would seem that it is necessary above all to bring public
policy and practice and moral judgment and analysis together
in the same forum. What is ordered under public policy has a
moral content that is separable from its imperative expression.
To declare the policy 'Loitering is forbidden' and then to en-
force it is to deny to some persons what they may well take to
be pleasant and advantageous behavior. Under this ordering,
the individual who is bent upon loitering is either mistaken
about his own advantage or he is being prevented from pursuing
what is indeed good. The proscription of loitering thus raises
substantive moral questions concerning what is good and what
is or is not a claim of the individual upon the social resources of
freedom.
One recognizes, accordingly, that public policy, as a norm
which is valid for persons as members of a community, is
more than public quiet. The confusion between public quiet
and good order is a constant threat to the freedom of the
individual. Aristotle has made the point that public policy de-
pends for its content and authority upon what is morally justi-
fiable. The purpose of the laws, in agreement with the conclu-
sions of ethics, is to make people better. Social authority can
do what the individual cannot always do on his own behalf,
namely, support and maintain good habits in the face of the
dispositions to passion and indulgence.12 Legislation-that is,
just law-is a moral instrument that embraces the two elements


12. Aristotle, Nicomachean Ethics, 10. 9. 6-9.





Moral Norms and Moral Order


of compulsive power and right order. Law, in its essential char-
acter or ethical pretension, is a rule of reason, "a rule proceed-
ing from a sort of practical reason or wisdom.""3
The view of Aristotle, namely, that the foundation and valid-
ity of just law lie within moral philosophy, stands opposed in
recent times by theories that have affirmed the separation of
law from morals, either explicitly as in the legal positivism of
Hans Kelsen14 or implicitly as in the ethical relativism of Gus-
tav Radbruch. The intellectual career of Radbruch is in many
ways illustrative of the dimensions of the modern conflict be-
tween morality and law. In his important work, Rechtsphilo-
sophie, published first in 1914, Radbruch expressed the view
that the correctness of "ultimate ought statements" (letzten
Sollenssdtze) cannot be established and that there can be no
rational decision between opposing value propositions.'5 While
in the ordering of means to ends law does have an ethical con-
tent, this content cannot be justified through rational argu-
ment. Ethical relativism is inescapable inasmuch as the relativ-
ity of moral judgment is irresolvable. In later writings, pub-
lished between 1945 and 1949, Radbruch repudiated his earlier
relativism, observing that this position left the legal theorist
defenseless against arbitrary and in some cases criminal enact-
ment.16
There is clearly a continuing need for the exposition and
application of moral rules that are regulative of the whole of
human affairs. In the modern world we have had the distinc-

13. Aristotle, Nicomachean Ethics, 10. 9. 12.
14. Cf. Kelsen, Reine Rechtslehre, pp. 65-69.
15. Radbruch, Rechtsphilosophie, pp. 102-3: "Die hier dargelegte
Methode nennt sich Relativismus, weil sie die Richtigkeit jedes Wertur-
teils nur in Beziehung zu einem bestimmten obersten Werturteil, nur in
Rahmen einer bestimmten Wert- und Weltanschauung, nicht aber die
Richtigkeit dieses Werturteils, dieser Wert- und Weltanschauung selbst
festzustellen sich zur Aufgabe macht."
16. Radbruch, Rechtsphilosophie, appendix, pp. 352-53: "Der Positi-
vismus hat in der Tat mit seiner Ueberzeugung 'Gesetz ist Gesetz' den
deutschen Juristenstand wehrlos gemacht gegen Gesetze willkiirlichen
und verbrecherischen Inhalts.... Denn man kann Recht, auch positives
Recht, gar nicht anders definieren denn als eine Ordnung und Satzung, die
ihrem Sinn nach bestimmt ist, der Gerechtigkeit zu dienen."


10





Moral Norms and Human Affairs


tion, within the public realm, of autonomous departments of
activity, each with its own 'canons' of 'correctness'. With ad-
vances in commerce and industry, for example, has come the
projection of economic 'laws' which purport to express the
mechanisms of wealth-getting quite apart from any moral
norms governing the acquisition and distribution of divisible
goods. With the rise of the modern state has come the projec-
tion of ideas of the legitimacy of the prevailing order and of the
validity of its rules or laws, quite apart from or in disregard of
the natural rights of the governed.
One consequence of these developments has been the reduc-
tion of moral norms to self-justifying interests of one sort or
another. One encounters a crisis in value, inasmuch as there
remains no way of appraising particular interests apart from
their vitality and force and the viability of the operations that
the pursuit of such interests entails. Such a crisis in value in-
volves a crisis in culture, as there is no way of determining what
is better or worse, as social policy, for the members of society
as a whole. If moral analysis leads only to the discrimination of
self-justifying interests, there is obviously no place for the com-
mon assessment of the objects of interest, with respect to their
worth and their subordination one to another in a hierarchy of
intrinsic and instrumental goods.
What is required is an ontology of morals,17 in the sense of
an affirmation of human values as realities, or actualities, that
are the ground rather than the reflection of interests and atti-
tudes. Moral philosophy, as distinct from social science, must
encompass the pattern of human striving in relation to the
pattern of human well-being as being. The many dimensions of
human activity must be viewed under norms that set forth what
an individual can become as a complete being in a community
of peers. The technical or compartmental considerations of
human affairs, as matters of interest to the social scientist,
concern merely the operations that apply precise means to
ends. Moral considerations, on the other hand, pertain to the

17. For this expression, I am indebted, in recent literature, to Henry
B. Veatch's book, For an Ontology of Morals (Evanston: Northwestern
University Press, 1971).


11





12 Moral Norms and Moral Order

validity or justification of the ends themselves and to the ade-
quacy or fitness of the means committed thereto. It is to ex-
ploration of the realm of morals, particularly in elucidation of
the relation of moral nobility to justice, that the following
chapters are devoted.











SThe Good












The Notion of Good
Aristotle observed in the ancient world that the term 'good'
is used in many senses in accordance with the many kinds of
things that are distinguished as good.1 The diversity of good
things clearly defies a very useful grouping of goods as in-
trinsic and instrumental, inasmuch as many things that are
sought for their own sake (such as honor, wisdom, and plea-
sure) are really distinct and not of the same kind. What Aris-
totle proposes in a passing remark is that diverse things have
in common a relationship, as good, to differing things, that is,
as sight is good in the body, so intelligence is good in the
soul.2 Thus, by an analogy of proportionality, diversity is
embraced under common meaning and usage. Although uni-
vocal meaning cannot be achieved, the disaster of equivocal
meaning is avoided.
Aristotle offers yet another clue to the meaning and use of
the term 'good' in defining the good as that at which all
things aim (rdT'aOdv ob rcivr' eierat) or that for the sake of
1. Aristotle, Nicomachean Ethics, 1. 6. 3.
2. Aristotle, Nicomachean Ethics, 1. 6. 12.
13





Moral Norms and Moral Order


which everything else is done (ob xapw rd Xo7r 7rpdrrerat).
Aristotle is apparently thinking of the sense in which, in com-
mon usage, 'good' as a term indicates the completion of the
natural tendency of a thing or the completion of the purpose of
some instrument or device. Such a locution defines 'good'
but not in the sense of exposing the genus to which goodness
belongs and the differentia by which goodness is distin-
guished from other species of the same genus. This is because
good is not a kind of thing as horse or man is a kind of thing,
or a highest kind (category) such as substance or quality. If
many diverse things are good, as Aristotle holds in agreement
with common sense, then 'good' or 'goodness' is compatible
with these things (with pleasure and virtue, for example)
without being essentially what these things are. This can be
so only if good is an attribute of being as a supervenient qual-
ity and is not being itself or a kind of being.
It is not surprising, therefore, that Aristotle, in trying to
indicate what 'good' is, comes around one way or another to
analogies drawn from the arts (reXva). Wherever there is
completion, Aristotle is prepared to recognize goodness; and,
accordingly, where there is aiming (eiLeoaat), what is 'aimed
at' is recognizable as good. Every art, whether medicine,
strategy, or harp playing, aims at some precise end, namely,
health, victory in combat, or excellence in harp playing itself.
The teleology of the arts becomes for Aristotle an analogue
of the teleology of existence itself, particularly where the
good is precisely human good and indeed good within human
reach.3 The clue to man's good is the aiming of man, that is,
of the individual. The moral philosopher must simply carry
out the job of analysis in order to discover the intention or
thrust of human existing, its aiming toward completion or ex-
cellence, as one discovers the thrust or aiming of the harp
player.
In not considering 'good' as a biologist would consider and
classify a living thing, Aristotle makes an approach to the na-
ture of good to which many objections can be raised. It may be
said, for example, that Aristotle really confuses 'good' with
3. Aristotle, Nicomachean Ethics, 1. 6. 13.


14







'being' and in so doing really reduces good to being and thus
commits in his own way what G. E. Moore has called the natu-
ralistic fallacy.4 The question here is whether 'good' when con-
sidered in terms of completion or fulfillment becomes inter-
changeable with 'being'. In a certain sense this is so, inasmuch
as the virtuous, or good, man for Aristotle is one who has
reached his entelechy, that is, his final form or full being. But in
a more strict sense, 'good' is not interchangeable with 'being'.
The virtuous man is not naturally good: a man can be without
being a good man, as there can be harp playing without excel-
lence of harp playing. Whereas one cannot think of what was
completed without thinking of what was to be completed, one
can certainly think of what is occurring without thinking of
what is being completed.
With Aristotle, the term 'good' is applied to being which is
actual and designates, at least in man and in other living
things, activities of completeness (evepyeta rob rereXeaOel -
vov), which are accordingly unhindered activities (evep'yeta
avelrd6torot).5 The use of 'good' in this sense is not trivial
or redundant, inasmuch as completion may be frustrated if a
thing is diverted by circumstances from the full exercise of its
powers and from such satisfaction as accompanies the full exer-
cise of its powers.6 If 'good' is interchangeable with 'being', it is
only so with 'being' in the normative sense, that is, with 'being'
in the sense of 'actual'. It is in this sense of 'what ought to be'
that 'good' as a term designates the norm or norms that are
discovered or discoverable in the nature of things. And thus it is
as inquiry directed to such discovery that ethics or moral phi-
losophy has a foundation as a normative science, a science of
discoverable norms of human activity and action.
As observed earlier, one stumbling block of modern ethical
discussion has been the recognition of and preoccupation with
the psychological circumstances that attend the use of moral
terms. The occasions of the use of the term 'good' are also

4. G. E. Moore, Principia Ethica (Cambridge: Cambridge University
Press, 1954), p. 176.
5. Aristotle, Nicomachean Ethics, 7. 13. 2.
6. Aristotle, Nicomachean Ethics, 10. 4. 5.


The Good


15





Moral Norms and Moral Order


occasions of the involvement of the individual with interests
(desires) and affections (feelings). This involvement may be
taken to suggest that the use of 'good' is only brought about by
experiences of excitement and feeling as precise dispositions of
particular individuals. Moral investigation may be thought,
then, to begin and end with the investigation of excitement and
feeling as part of the study of consciousness itself, which we
know as psychological inquiry.
It should be clear that the restriction of the meaning of
moral terms to the expression of excitement and feeling is
tantamount to the elimination of ethical discussion and the
cancellation of ethical problems. For it is evident that all inter-
ests and affections, as data of consciousness, are equally gen-
uine-if not equally fascinating to the student of human be-
havior. Moral distinctions such as 'good' and 'bad', as used only
in the articulation of experiences of desiring and feeling, could
involve nothing more than a verbal game, which individuals
carry on within themselves or carry on outside of themselves in
seeking to delight, offend, or otherwise move other individuals.
Any attempt to speak of an 'object' of desire or feeling as a
good or bad object would be inconsistent or incompatible with
the restriction of the 'realm' of morals to excitements and
affections,7 as would also be any attempt to resolve conflicts of
'view' about things taken to be 'good' and 'bad'.
It is true, of course, that the individual often reports his
experience as though there are moral distinctions within con-
sciousness, as in speaking of feelings of pride and shame. But
clearly the attention here is to something other than conscious-
ness itself; it is to the referent or referents of consciousness.8

7. Cf. Thomas Hobbes, Leviathan, ed. Michael Oakeshott (Oxford:
Basil Blackwell, 1960), chap. 6, pp. 32-33: ". .. these words of good, evil,
and contemptible, are ever used with relation to the person that useth
them: there being nothing simply and absolutely so; nor any common rule
of good and evil, to be taken from the nature of the objects themselves;
but from the person of the man, where there is no commonwealth; or, in a
commonwealth, from the person that representeth it; or from an arbitra-
tor or judge, whom men disagreeing shall by consent set up, and make his
sentence the rule thereof."
8. Cf. R. B. Perry, Realms of Value (Cambridge, Mass.: Harvard Uni-


16







The normative character that Hume accords to the moral feel-
ings (for example, sympathy9) and that J. S. Mill accords to the
"conscientious feelings"10 really involves the objects of these
affections as these objects are responded to and approved by
the individual.
It must be said, accordingly, that ethical investigation in its
attention to what is desired or approved is not merely verbal
but involves the consideration of the character of the things
that are taken to be good.n This can be said simply because the
presumption in the use of the term 'good' is the recognition of
something that is good, as in speaking of the good harp player
or the good citizen. Whether the harp player or the citizen is
indeed good can be determined only through the clear sense of
what goodness is or of what is required for anything to be
recognized as good. The responses that are aroused by or asso-
ciated with good things are themselves distinguishable from
such good things, as any response is necessarily distinguishable
from that to which it is a response. Thus it is that the language
of moral designation cannot be reduced to the language of


versity Press, 1954), p. 122: "The datum of feeling may be taken to
signify the state or act of feeling; or it may be taken to signify what is felt.
... in the second case, it is the object of the feeling which is observed, and
the feeling is the observing."
9. Cf. David Hume, A Treatise of Human Nature, ed. L. A. Selby-
Bigge (Oxford: The Clarendon Press, 1958), bk. 3, pt. 3, sec. 1, pp.
577-78: ". .. it appears, that sympathy is a very powerful principle in
human nature, that it has a great influence on our taste of beauty, and that
it produces our sentiment of morals in all the artificial virtues. From
thence we may presume, that it also gives rise to many of the other virtues;
and that qualities acquire our approbation, because of their tendency to
the good of mankind. This presumption must become a certainty, when
we find that most of those qualities which we naturally approve of, have
actually that tendency, and render a man a proper member of society.

10. Cf. J. S. Mill, Utilitarianism, chap. 3, in The Utilitarians (Garden
City, N.Y.: Dolphin Books, 1961), pp. 432-33.
11. Cf. R. M. Hare, Freedom and Reason (Oxford: The Clarendon
Press, 1963), p. 23: "... typical moral disputes are not purely verbal, as
on a naturalist account they would be, provided the non-verbal facts were
agreed."


The Good


17





Moral Norms and Moral Order


moral disposition. The point here is that the intention, in the
use of the term 'good', must be what exists as good or appears
to be good. The term 'good', in its use or application, is simply
more pervasive than most common terms and is predicated in
all of the categories or kinds of being.

Intrinsic Good and the Useful
The recognition that the term 'good' is used in many senses
may prompt one to prepare a lexicon of uses that will be both
precise and exhaustive.12 At the same time, one may be
prompted to give attention to what would be considered the
primary use of 'good', upon which all other uses of the term
depend. While Aristotle proposes that many things are called
good "by way of a proportion," he also proposes that some
things are called good in that "they all contribute to one
good."'3 And with respect to the latter proposal, Aristotle con-
siders the utility of the distinction between things good for
their own sake (intrinsic goods) and things good for the sake of
other things (instrumental goods). One sees, of course, that this
distinction gives trouble, not only because intrinsic goods turn
out to be of many kinds but also because a thing may at one
time be regarded as an intrinsic good and at another time as an
instrumental good. One thinks here of such a thing as a book of
poetry which is prized for its own sake but which may at times
be useful as a paperweight on one's desk or as an item in ex-
change for another book of poetry.
Nevertheless, there is warrant for the priority of intrinsic
good over instrumental good. The prizing of the surgeon's scal-
pel is inferior to the prizing of the surgeon's skill, as the prizing
of the skill of healing is inferior to the prizing of health itself.
There are, as a matter of fact, things such as health and pleasure
that are prized and sought for their own sake, whereas there are
other things that are sought merely as instruments to the pro-
duction or maintenance of things sought for their own sake.
There is a distinction to be made, in any means-to-end relation-

12. Cf. Georg Henrik von Wright, The Varieties of Goodness (Lon-
don: Routledge and Kegan Paul, Ltd., 1963), pp. 8-18.
13. Aristotle, Nicomachean Ethics, 1. 6. 12.


18






ship, between the useful and that with respect to which some-
thing is useful. One can, accordingly, think of a good such as
pleasure that is supported by one or many things but that itself
is not instrumental to anything.
There is, however, the problem of determining in what pre-
cise way the goodness of what is useful differs from the good-
ness of what is prized or esteemed for its own sake. It may be
thought that what is intrinsically good is indeed good whereas
what is useful is ethically neutral until some use is made of it.
The value neutrality of useful things is suggested by the various
uses to which the same things are or can be put. The good
scalpel can become a good weapon in the hands of an enraged
medical assistant. Clearly many things that are regarded as good
in the sense of useful come in time to be regarded as not good.
It may be thought, accordingly, that the designation of some-
thing as useful is merely a 'way of speaking' about what is of
interest to someone for some purpose and for some period of
time. The idea of 'interest' as introduced here may be extend-
ed, of course, to things regarded as intrinsically good so as to
suggest that all things of 'value' are in themselves ethically
neutral. There comes to mind, in this connection, the following
passage from Spinoza's Ethics:
With regard to good and evil, these terms indicate nothing
positive in things considered in themselves, nor are they
anything else than modes of thought, or notions which we
form from the comparison of one thing with another. For
one and the same thing may at the same time be both good
and evil or indifferent. Music, for example, is good to a
melancholy person, bad to one mourning, while to a deaf
man it is neither good nor bad.14
It should be said, first, that it is doubtful that any moral term
is used, even by analogy, in a nonmoral sense or in place of a
nonmoral term. If an individual speaks, for example, of a good
knife, can it really be said that this expression is replaceable by

14. Baruch de Spinoza, Ethics, pt. 4, preface, trans. W. H. White in
Spinoza Selections, ed. John Wild (New York: Charles Scribner's Sons,
1930), p. 285.


The Good


19





Moral Norms and Moral Order


"sharp knife" or "stainless steel knife" or "durable knife" in
the way that "sharp," "stainless steel," and "durable" are un-
derstood by the cutler or metallurgist? It is doubtful that a
person who speaks of a good knife regularly considers its sharp-
ness or stainlessness or durability apart from the operations in
which the knife is involved or the ends to which the knife is
applied. And this is precisely the point in the recognition of
what is good in the sense of useful. 'Useful' signifies "being
effective for .. ." and the goodness of a good knife involves its
effectiveness (by virtue of its sharpness or whatever other prop-
erty or properties) as a means to an end. is
In understanding that the term 'useful' always indicates a
relation of means to an end, one recognizes the priority of final
causes or ends over intrinsic causes or properties ('good-
making' properties), which involve merely "hypothetical ne-
cessity."16 If it is the relation of the scalpel to the purposes of
the surgeon that indicates the scalpel's usefulness, then it is the
use of the scalpel that indicates in turn the necessary properties
of a good scalpel and not certain properties (sharpness, stain-
lessness, durability) that indicate use or effective use. In other
words, the appraisal of things as useful involves directly the
uses in which these things are effective and only indirectly the
properties that these things possess. To think of a knife is to
think of a kind of thing, either contrived to be used in one or
many ways or adapted to be so used. A knife is thus distinct

15. A word must be said about the distinction between a 'knife' and a
'good knife'. There is a sense in which it is redundant to speak of a 'good
knife'. It would be said that a knife in its definition is an instrument and
therefore something which is good in the sense of useful. In recognition of
this, and in order to avoid redundancy, one must mean by 'good knife'
what is superior to other knives in utility or usefulness or what is the "best
of its kind." When one speaks, accordingly, of a 'bad knife' one must
mean what is ineffective in a certain operation or in relation to a certain
purpose while being at the same time a thing which is intended to be used
in this operation or for this purpose. One finds in a 'bad knife' a privation
of effectiveness, either through fault in production or deterioration in
use.
16. Cf. Aristotle, Parts ofAnimals, 1. 1, trans. A. L. Peck (Cambridge,
Mass.: Harvard University Press, 1961), pp. 57-59.


20







from a stone, whose definition does not involve any relation to
an extrinsic end (although, of course, one can speak of a key-
stone or cornerstone, whose definition does involve a relation
to an extrinsic end). Every useful thing has its precise goodness
as usefulness in virtue of its relation to some extrinsic end or
purpose and not in virtue simply of its intrinsic properties. An
end or purpose ("that for the sake of which"), whether as
something good for its own sake or something good as a means
to a further end, always enters into the determination of the
precise usefulness of a particular thing.
There remains, however, the problem of the use of the terms
'good' and 'bad' by different individuals with respect to the
same thing or by one individual with respect to the same thing
under different circumstances. Such uses may seem to support
the contention that moral terms represent subjective appraisals
imposed upon a nonmoral realm. It is true, of course, that the
same thing can be regarded as useful in different ways and that
the thing believed to be good or useful in one situation may be
viewed as useless in another situation. There is clearly a relativ-
ity in the usefulness of things, but this does not involve any
difficulty for the intentionality and objectivity of moral judg-
ments. There is no conflict or contradiction in offering differ-
ent judgments concerning things as they stand in different rela-
tionships. A thing is useful or useless as determined with re-
spect to a precise end and quite apart from a relation to any
other end. Each judgment concerning what is useful is a matter
of effectiveness of means to an end and is, accordingly, ajudg-
ment that is either correct or mistaken.

Intrinsic Good: The Good Man
The distinction between instrumental good and intrinsic good
is carried in the distinction between the attributive, or adjunc-
tive, use and the predicative use of the word 'good' (that is,
"good in a certain respect" and "good simply or absolutely").
This distinction does not involve degrees of goodness. Clearly,
anything that is good as a means can be taken as an end in itself,
while most things that are good as ends are also good as means.
A fine clock is recognizable as both useful in telling the hours of


The Good


21





Moral Norms and Moral Order


the day and as something to be prized as the "best of its kind."
It is in the recognition of the intrinsic value of things, often
useful things, that moral experience is most akin to aesthetic
experience. A beautiful thing can be thought of simply as pleas-
ing to see or to hear or to smell, where there is no involvement
of desire and there is no impulse to possess the thing. A useful
thing in its very completeness or perfection may also be pleas-
ing and fascinating, although there would be an involvement of
desire and there would be an impulse to acquire or to hold the
thing as something both useful and worth having for its own
sake. The completeness of the fine clock is the completeness of
a useful thing as the "best of its kind." It is the consideration of
the usefulness of the thing that brings about the appreciation of
the thing for its own sake. It is the fine clock in its completeness
as a clock that comes to be desired for itself. It is often the case
that one recognizes the goodness of a fine timepiece without
direct concern about the use of the timepiece to tell the hours
of the day, as one recognizes the goodness of a fine violin or
flute without any direct concern to use the instrument to play a
tune.
There are, of course, intrinsic goods that are not completions
or perfections of making but completions or perfections of
activity or doing. One thinks, for example, of health as an
intrinsic good which is final: it is a good which does not project
beyond itself to any ulterior object. Health, of course, is 'use-
ful' to the individual in relation to the numerous activities of
daily life, but in itself or in its idea health does not embrace an
extrinsic end. Health, like pleasure and moral virtue, can be
thought about and cherished apart from any operation to be
furthered or any purpose to be served.
Insofar as involvement with good things is an involvement
with ends and with means, one may ask whether there is an end
that is final and complete, an end that is neither a means to any
good beyond itself nor merely a part of some composite good.
It may be doubted at the outset that there is any object that can
be both the beginning of desire or interest and its termination.
And one may hold that all ends, with their appropriate means,
are simply stages or steps to further ends in an open series of


22







transient satisfactions. Thomas Hobbes has spoken of the suc-
cession of ends and of the transiency of satisfaction:
... the felicity of this life, consisteth not in the repose of a
mind satisfied. For there is no suchfinus ultimus, utmost
aim, nor summum bonum, greatest good, as is spoken of
in the books of the old moral philosophers. ... Felicity is
a continual progress of the desire, from one object to
another;. .17

The "old moral philosophers" whom Hobbes had in mind
doubtless included Aristotle, who contended that if there
were no final and complete good (rd & 'ptro) desiring would
involve an infinite regress and would indeed be "futile and
vain." It must be granted, of course, that desiring is always a
desiring of something and that what is desired is in some way
a terminus of appetite. The question is whether there is any-
thing that can be the terminus of desire and that is, accord-
ingly, the genuine and ultimate object of all interests of what-
ever sort.
An approach in answer to this question can be made through
the consideration of the things that are desired for themselves
and not simply for their usefulness. If indeed the individual is
able to involve himself in the experience of a series of objects
whose satisfactions are replaceable by what is ever new and
fascinating, then one must accept Hobbes' notion of the con-
tinual movement of desire. This would require, of course, the
abandonment of the idea of intrinsic value, for if a thing and
the satisfaction that follows from its possession are replaceable
and surpassable, nothing can be sought for its own sake. But it
appears in our moral experience that there are things, such as
health and friendship, that are pursued for their own sake and
whose gratifications are not replaceable as the satisfaction of
eating one chestnut is replaceable by the satisfaction of eating
another chestnut. To recognize things of intrinsic value is to

17. Hobbes, Leviathan, chap. 11, p. 63. Cf. Thomas Hobbes, Human
Nature; or the Fundamental Elements of Policy, in The English Works of
Thomas Hobbes, ed. Sir William Molesworth (London: John Bohn,
1839-45), 4:33.


The Good


23





Moral Norms and Moral Order


recognize that desire does not move continually from one ob-
ject to another but has as many termini as there are things
whose possession is irreplaceable and whose gratification is un-
surpassable.
There remains, however, the question whether beyond the
several termini of desire in things that are intrinsically good
there is one terminus of all desire, namely, a final and complete
good, as Aristotle would hold and Hobbes would deny. The
clue to the answer to this question can be found in the enumer-
ation of intrinsic goods. In recognizing that any list of precise
goods would likely be incomplete, one can talk of categories of
intrinsic goods, namely, aesthetic objects and enjoyments, in-
tellectual excellence, the moral virtues, association and friend-
ship, and health. It is apparent that such kinds of things are
good for the individual. This is not simply to say that an indi-
vidual considers his own being as embracing in its completeness
such intrinsic goods as constituents. The completeness of the
individual is rather the full activity of life involving a range of
completions or perfections. For all individuals this activity of
life is, contrary to Hobbes, the utmost aim and greatest good.
To speak of human good as the completeness of individual
life is to have in mind an end that is compatible, although not
interchangeable, with being.We have commented earlier upon
one seemingly insoluble problem of modern ethical discussion,
namely, the relevance of moral norms to what empirical evi-
dence reveals to be the "real" order of things and to what the
actual behavior of individuals suggests to be the direct and
"significant" concerns of human life. One may well contend in
this connection that moral discussion does not and cannot lead
to the discovery of any "ultimate aim" that can be taken to
have status as the real or actual. In contrast to the realm of fact,
one would argue, there is the "realm" of value by the "recogni-
tion" of which one's affairs can be "ordered" but of which one
cannot in the very nature of the case have knowledge or cer-
tainty.
What is not made clear in any separation of value from fact is
just how an individual can conduct his affairs and sustain his
purposes according to 'norms' of human life that are not real as


24







human life itself is real. The separation of value from fact with
respect to what is real becomes the cleavage between aiming
and knowing, in which presumably aiming must go on without
the benefit of knowing. From this it would follow that moral
dispositions of one sort or another must somehow generate
their own "objects" in the pursuit of what one customarily
thinks of as the well-being of the individual. But one cannot, of
course, really speak of well-being if there is no state or condi-
tion of human life that can be known and accepted as "living
well." The very idea of well-being (as a state of being) loses
significance. One escapes or avoids all of this simply in holding
that there is an object of interest and striving which is the
discovery of thought. Thus it can be said that there is a rational
attachment to what as a whole an individual is able to become,
or to any part thereof to which an individual aspires or strives,
as an ignorant man would perfect his mind or a sick man would
regain his health.
The attention to the dispositional as opposed to the cogni-
tive, in seeking an alternative approach to the meaning of
'goodness', involves the consideration of attitudes apart from
aspiration as the rational pursuit of the good. In shifting the
foundation of the moral life from the recognition of moral
awareness to the dispositions of moral experience, it follows
that ethical discussion cannot be a clarification and refinement
of moral judgment and that there is no reasonable path for the
moral life to take. David Hume has given a classic statement of
this shift in the foundation of morals:
The impressions, which arise from good and evil most
naturally, and with the least preparation are the direct
passions of desire and aversion, grief and joy, hope and
fear, along with volition. The mind by an original instinct
tends to unite itself with the good, and to avoid the evil.
... Our decisions concerning moral rectitude and deprav-
ity are evidently perceptions; ... Morality, therefore, is
more properly felt than judg'd of. ...18

18. Hume, A Treatise of Human Nature, bk 2., pt. 3, sec. 9; bk. 3, pt. 1,
sec. 2, pp. 438, 470.


The Good


25





Moral Norms and Moral Order


It is not clear just what this passage seeks to establish. To say
that goodness or rightness is presented through a disposition
such as feeling or emotion can be taken to mean either that
feeling or emotion is the good or that feeling or emotion is a
way of knowing what is good. If the intention is to maintain
that it is through feeling that good is encountered or experi-
enced by the individual, then feeling is put forward as a faculty
that is cognitive of moral values, as other things are encoun-
tered or experienced through other ways of knowing. But the
argument here is devious. For at first there is an appeal against
cognition to consciousness as feeling or emotion and then there
is the recognition of feeling or emotion as being itself cognitive
or perceptive. Apart from the apparent contradiction, it is dif-
ficult to see how feeling is also knowing. It would seem that
feeling is simply feeling, and that in restricting one's concerns
in moral matters to feelings one embraces noncognitivism. If
one wants somehow to think of affective experience as percep-
tive and discriminating, one must allow that feeling in this
respect is indistinguishable from intuition and that what is
grasped in affective experience is indistinguishable, as truth,
from what is gained through rational insight and judgment. But
to allow this is to abandon noncognitivism.19

19. It is not amiss to place David Hume among the romanticists of the
eighteenth century, along with Vico and Herder, who rejected or ap-
peared to reject reason in order to recognize and endorse feeling as an
apprehensive faculty which moves the will or heart. The complex charac-
ter of Hume's stand on feeling and reason is apparent, however, from the
following passage in his Enquiry Concerning the Principles ofMorals, ed.
L. A. Selby-Bigge, rev. P. H. Nidditch (Oxford: The Clarendon Press,
1975), sec. 1, pp. 172-73: "The end of all moral speculations is to teach us
our duty;. . But is this ever to be expected from inferences and conclu-
sions of the understanding, which of themselves have no hold of the
affections nor set in motion the active powers of men ... What is honor-
able, what is fair, what is becoming, what is noble, what is generous, takes
possession of the heart, and animates us to embrace and maintain it.... I
am apt to suspect ... that reason and sentiment concur in almost all moral
determinations and conclusions. The final sentence, it is probable, which
pronounces characters and actions amiable or odious ... depends on
some internal sense or feeling, which nature has made universal in the
whole species. . But in order to pave the way for such a sentiment, and


26







The appeal to feeling rejects rational intersubjectivity in
moral matters only to come to intersubjectivity in a different
way. In the appeal to feeling, there is apparently a "way of
knowing" in morals that precludes error through the immedi-
acy or directness of what Hume calls "original instinct." At the
same time, there is no barrier to moral agreement among those
who have the same or similar perceptions. But there is, in this
shift to feeling, the loss of discourse about the moral life
through the use of moral language in judgment and argument.
The exclusion of moral concerns from the realm of reason and
discourse appears to be urged upon us without justification and
without any gain in the understanding of the place of feeling
and reason in human experience. The appreciation of feeling's
part in the moral life does not require the substitution of feel-
ing or "original instinct" for rational apprehension. Feeling
attends the whole range of human awareness, and moral experi-
ence in being affective does not for that reason lack a founda-
tion in what reason is able to grasp of the nature of things.
If the advocate of the primacy of feeling in moral experience
does not wish to maintain that feeling or emotion is cognitive
but only to hold that feeling or emotion is the good, one is
constrained to reject this also. One can certainly grant, as Soc-
rates is represented as affirming in the Protagoras, that feeling
as pleasure is good-pleasure is indeed that feeling of which one
rightly predicates the term 'good'. But one is not called upon to
grant, as Hume seems to require, that feeling or pleasure (i.e.,
whatever is immediately or ultimately pleasant to one individ-
ual or to others) is what goodness is. For to say this is simply to
reduce all attainment and satisfaction to the affective life of the
individual and to ignore all of the other ways in which an
individual can be fulfilled and all of the other kinds of things
that pertain to the completeness of the individual. F. H. Brad-
ley has made this point in the following way:


give a proper discernment of its object, it is often necessary, we find, that
much reasoning should precede, that nice distinctions be made, just con-
clusions be drawn, distant comparisons formed, complicated relations
examined, and general facts fixed and ascertained."


The Good


27





Moral Norms and Moral Order


We are ... mistaken when we attempt to set up any one
aspect of our nature as supreme, and to regard the other
aspects merely as conducive and subject to its rule ...
mere pleasure is an abstraction which we make from what
is pleasant. . We are forced in reason to distinguish
between pleasure and that which is pleasant, and so far as I
see, we cannot in reason make the second of these subject
to the first. We may put it otherwise by saying that, where
pleasure exists, it is the whole man who feels the pleasure,
the whole man with all of his practical and other activities
and the complete range of his emotions.20
The goodness of "the whole man," to use Bradley's phrase, is
both comprehensive and final. The constituents of this good-
ness are intrinsic goods, each of which contributes to the char-
acter of the individual to whom a term such as 'happy' or
'virtuous' is applicable. It would seem that all moral and legal
matters, as concerns about human affairs, derive their direction
and force from the recognition of individual human existence
viewed both in itself and as the end of all social and legal means.
This primacy of the individual was set forth initially in the
testimony of Socrates, in the Apology, in which he sought to
arouse his fellow citizens to a concern about themselves, a
concern about their individual lives as excellent or mean and
about their actions as noble or base.

The Final Good and the Rights of Persons
A matter which remains is that of stating with some clarity and
precision just what the norm of "the good man" means as an
aid in the ordering of human affairs. This is the problem of
distinguishing the constituents of individual well-being, partic-
ularly since the support of these things is thought to be the
concern of all or most members of a society. We have men-
tioned earlier the categories of goods that can be taken to be
desirable or worth having for their own sake. One must con-
tinue to inquire, however, concerning what all or most individ-

20. F. H. Bradley, Essays on Truth and Reality (Oxford: The Claren-
don Press, 1914), pp. 3, 5.


28






uals would be expected to want for themselves and to secure
for themselves, inasmuch as there is no ready agreement among
the members of society as to what are the good things they
should have. The search for an answer to this question might
lead an investigator to consult his own aspirations and satisfac-
tions and to interrogate others, in Socratic fashion, about their
aspirations and satisfactions. A good deal of attention has in
fact been given to this matter by anthropologists and sociolo-
gists who have been concerned with the prevailing values of a
society and with conflicts of values both within and between
cultures. The difficulty with this approach, of course, is the
possibility of confusion between what is prescribed in a society
and what is indeed desirable or estimable. This confusion is able
to occur simply because the prevailing norms of a society or
group determine in that society or group what is expected of its
members, although such norms may not in fact represent what
the members or at least some of the members expect (as esti-
mable) for themselves. Whether any prevailing norm represents
for an individual what is estimable is a matter that can be
determined directly by consulting the individual concerning
what in his judgment are the things that are most valuable. Such
a consultation shifts the matter from social science to ethics,
from the character of society to the character and capability of
the individual, and thus avoids an egregious confusion be-
tween social reality and moral possibility.
This shift, which is at bottom a shift from the character of
society to the character of man, does not really settle the
matter at hand. Philosophical anthropology would seem to
offer as diverse an array of views about human nature as cul-
tural anthropology or sociology offers about prevailing moral
practice. In the attention, however, to what Aristotle calls
"states of life" or consciousness (rd av vi i/ivXi ytvOeva),
one is able to distinguish basic tendencies and capacities
(6vvadetc) in the total aspiring or aiming of the individual
and to consider the individual as behaving under his own
guidance and not simply in response to the promptings of im-
pulse or feeling. We come then to think of human tendencies
and capacities as underlying what we recognize as intrinsic or


The Good


29




Moral Norms and Moral Order


final goods and as supporting what we recognize as the rights
of the individual or person.
Few accounts of human nature and human interest have
matched the straightforwardness of Hobbes' analysis of the
man in the Leviathan. In his long and detailed discussion,
Hobbes gives attention primarily to the one motive of self-
interest, that is, to the interest in the use of power to preserve
oneself. The difficulty in Hobbes' account is the abstraction of
egoistic disposition from the tendencies and capacities that are
to be advanced or fulfilled through self-preservation. One is
constrained to say, against Hobbes, that a creature of rational
intelligence, in seeking to preserve himself, would be guided at
the same time by other demands of his conscious life. Hobbes
would seem to recognize this in commenting that where there is
a preoccupation with the devices of physical survival and secu-
rity there is precluded the cultivation of the productive, noetic,
and social arts.21 When he speaks of organized society, Hobbes
is careful to point out that it is the duty of the sovereign power
to support the full safety of the people, embracing all "content-
ments of life." But Hobbes does not speak of the 'rights' of the
individual with respect to the constituents of a life of content-
ment, except in reference to those liberties that "depend on the
silence of the law." His attention to the constant threat of one's
enemies brings him to talk chiefly of the 'right of nature' (ius
naturae) as the liberty of "doing any thing" to protect one's life
and members. Accordingly, for Hobbes, political society itself
rests upon the common need for restriction of this absolute
right of nature rather than upon the recognition of natural
rights as moral claims upon the constituents of a complete life.
The basic confusion in Hobbes' thought concerning the nature
of man and the nature of organized society is obscured by the
sustained attention he gives to the individual's interest in sur-
vival and security in abstraction from the context of human
tendencies and interests as a whole.
St. Thomas Aquinas, writing centuries before Hobbes, recog-
nized the whole of human tendency and interest in saying that
"reason of its nature apprehends the things toward which man
21. Hobbes, Leviathan, chap. 13, p. 82.


30





The Good 31

has a natural tendency as good objectives, and therefore to be
actively pursued, . and their contraries as bad, and therefore
to be shunned."22 If there is a right to preserve one's life, there
are other rights to other objects of demand. In his concern
about himself, the individual is able to identify claims upon
genuine goods as distinct from interests in and pretensions to
merely apparent goods. The claims upon genuine goods are
seen, at the same time, to indicate what actions are appropriate
in obtaining and preserving these very things. To the considera-
tion of the nature of appropriate or right conduct we now turn.
22. St. Thomas Aquinas, Summa Theologiae, First Part of the Second
Part, Q. 94, A. 1, trans. Thomas Gilby, O. P. (London: Eyre and Spottis-
woode, Ltd., 1966).











3 The Right











Actions and Consequences
It is more difficult, perhaps, to talk of right action or rightness
than it is to talk of goodness. While what a man does is indeed a
part of what he is as a good man and what he affirms as a good
citizen, there is the problem of the determination of what an
individual is to do in particular and complex situations involv-
ing his interests and the interests of others. Inasmuch as actions
have consequences and are in this sense productive of good or
bad ends, one may well hold that ends as consequences (or
probable consequences) must enter into any and all considera-
tions of actions as right or wrong. At the same time, there is
often in our experience the opposition or antinomy between
what is 'right' as a means to some end and what is 'right' as
fitting, that is, as appropriate to the demands or expectations
of rational beings or persons considered as ends in themselves.
One recognizes with Kant that there can be no deliberate action
without the thought of some end.' The fundamental question,
then, concerns the character of the end or ends of deliberate
action. This question has a long history and has been the center
1. Cf. Immanuel Kant, Metaphysics of Morals: The Doctrine of Vir-
tue, trans. Mary J. Gregor (New York: Harper and Row, Publishers,
1964), pp. 38-39.
32







of a long debate between teleologists and deontologists, be-
tween those who take the view that 'right' is what is productive
of or conducive to the good and those who hold that 'right' is
what is directly apprehended as self-justifying action quite
apart from the proximate consequences that flow therefrom.
One may be moved to ask, in this connection, whether the
opposition between teleologists and deontologists is perchance
more apparent than real. And it may be pointed out that teleol-
ogists (for example, utilitarians) who are concerned about the
promotion of general happiness would seem to hold a view of
right action that is, in some aspects at least, deontological. If
the individual is to promote the well-being of others, it may be
argued, there must be a criterion of right action other than the
maintenance of a balance of pleasure over pain, namely, the
criterion of consistency of action (as duty) with the purposes
of other persons. Without such a guide in behavior, it would be
merely problematic that an individual would act in a way bene-
ficial to "the greatest number" of human beings. In other
words, the appeal to felicitous consequences alone as the ends
by which actions are judged to be 'right' would seem to leave
undetermined the precise beneficiaries of such actions. An indi-
vidual could conceivably act to maximize the happiness of se-
lected individuals and deliberately ignore the happiness of oth-
ers without being involved in any action that would be regarded
as wrong.2
Even with respect to the individual's support of his own


2. Cf. Henry Sidgwick, The Methods of Ethics, 7th ed. (Chicago: The
University of Chicago Press, 1962), pp. 416-17: "In all cases ... it be-
comes practically important to ask whether any mode of distributing a
given quantum of happiness is better than any other. Now the Utilitarian
formula seems to supply no answer to this question: at least we have to
supplement the principle of seeking the greatest happiness on the whole
by some principle of Just and Right distribution of this happiness. The
principle which most Utilitarians have either tacitly or expressly adopted
is that of pure equality-as given in Bentham's formula, 'everybody to
count for one, and nobody for more than one'. And this principle seems
to be the only one which does not need a special justification; for, as we
saw, it must be reasonable to treat any one man in the same way as any
other, if there be no reason apparent for treating him differently."


The Right


33





Moral Norms and Moral Order


concerns, the appeal to felicitous consequences does not ap-
pear to cover the whole range of what the individual would
recognize as right action. The attention to consequences again
finds itself opposed by considerations about what is "fitting"
or "becoming" for the agent, quite apart from the presumed
consequences of his action. Action productive or thought to be
productive of favorable consequences is often regarded as inap-
propriate. An individual finds himself reluctant to eavesdrop
upon another individual's conversation, although such eaves-
dropping would likely provide information advantageous to
himself and to his friends. And this reluctance may express
itself in such a declaration as "I find eavesdropping repugnant"
or "One simply does not eavesdrop." If 'right action' is always
what is productive or what is believed to be productive of some
end or ends, there would simply be no possibility of an experi-
ence of reluctance to do what clearly pertains in a positive way
to such end or ends. One may say, of course, that this "reluc-
tance" is merely affective and reflects nothing more than the
peculiarity of an individual's sensibility or upbringing. But this
would not really dispose of the disinclination to eavesdrop as
morally exceptional or spurious. One could as well regard the
inclination to advance one's interests as morally spurious and
the disinclination to eavesdrop as morally genuine. Moral ques-
tions can hardly be settled by appeals to or against sensibilities
of one sort or another. The preference for any action as "fit-
ting" really involves the action itself as viewed in a setting of
individuals who make demands upon one another in the exer-
cise of their rights as persons.

Actions and Intentions
Rightness is a matter of intention. Intention intention ) in
thought is a directing of the mind toward some thing as an
object.3 Intention in action is an expression or thrust of the

3. Cf. St. Augustine, De Trinitate, 11. 2. 2, trans. Arthur W. Haddan
(Edinburgh: T. and T. Clark, 1873), p. 263: ". .. that attention of the
mind which keeps the sense in that which we see, and connects both ...:
this attention is the act of the mind alone ...."


34






will toward an object taken as an end.4 Many intentions as
actions are simply affirmations or pledges. The intention in
extending one's hand in greeting another individual is to affirm
or support the status of the individual as a friend or guest. The
intention in uttering or repeating a vow is to affirm or reaffirm
a commitment or union of one sort or another. But intention in
action is often both an affirmation through overt behavior and
a projection of consequences deriving from overt behavior. All
actions have ends as referents but not all ends or referents are
consequences. Assisting a child in the learning of a language
would be in intention right, both as an affirmation of the
child's rational capability to learn a language and as a furthering
of the child's intellectual development as a concomitant or
consequence of language instruction. At the same time, telling
a seriously ill person the facts about his physical condition
would be right as an affirmation of his rationality and the
corresponding claim upon the truth, even though the precise
consequences of such truth telling are unpredictable. Intention
is the formal rightness of action, as distinguishable from what
in fact obtains as the consequence or consequences of action.
The eighteenth-century moralist Richard Price has put the mat-
ter in these words:
It is the actual conformity of the wills of moral agents to
what they see or believe to be the witnesses of things, that
is the object of our praise or esteem. One of these may,
perhaps, very properly be called the virtue of the action,
in contradistinction from the other, which may be called
the virtue of the agent. To the former, no particular inten-
tion is requisite . to the other the particular intention is
what is most essential. . Our own determinations alone
are, most properly, our actions. . There seems indeed
scarcely any thing more evident, than that there are two
views or senses, in which we commonly speak of actions.
Sometimes we mean by them, the determinations or voli-

4. Cf. De Trinitate, 8. 6. 9: "... that mind is righteous which know-
ingly and of purpose assigns to everyone his due in life and behavior... ."


The Right


35





Moral Norms and Moral Order


tions themselves of a being, of which the intention is an
essential part: And sometimes we mean the real event, or
external effect produced.5
Intention as 'formal rightness' is the consistency of action with
the status or worth of individuals as persons and, accordingly,
with what is believed to be beneficial rather than harmful to the
individual. All deliberate action in society has as a direct refer-
ent some individual whose status as a person requires such
action toward him as will affirm his worth and will support, in
accordance with this worth, his life activity as a whole. The
intention of right action embraces consequences without being
determined simply by consequences. One can never set out, as
Kant observed, from the consideration of consequences or
probable consequences alone in order to determine what is the
right thing to do, for example, to tell the truth in a particular
matter. Whether or not I speak the truth at a given moment is
problematic where the determination of action rests entirely
upon my immediate interest in desirable consequences of one
sort or another. It is only when the individual to whom I speak
is brought into the moral frame of reference that lying can be
seen as morally wrong, whatever the desirable consequences
that are believed to follow from this or that instance of lying.
For it is only then that I can see that every possible favorable
consequence of lying to this individual is to be gained in disre-
gard of the claim of a rational being upon the truth and in
manipulation of the individual as a thing. The intention of a
right act is thus an affirmation of human worth or dignity,
which necessarily excludes certain consequences whose pro-
duction would involve an offense or offenses against worth or
dignity. One must set out from such a basic affirmation in order
to ascertain just what consequences are compatible with per-
sonal existence and with relationships among persons. Without
a reference to persons, action or doing becomes indistinguish-
able from production or making, as in all moral and political

5. Richard Price, A Review of the Principal Questions in Morals, in
British Moralists, ed. L. A. Selby-Bigge (Indianapolis: The Bobbs-Merrill
Company, Inc., 1964), 2:179.


36







theories that view right action as a means merely to some end.
The important distinction between behavior productive of
desirable consequences and right or fitting conduct has been
made by Joseph Butler. In The Analogy of Religion, Bishop
Butler writes as follows:
... we must distinguish between actions themselves and
that quality ascribed to them, which we call virtuous or
vicious. The gratification itself of every natural passion,
must be attended with delight; and acquisitions of for-
tune, however made, are acquisitions of the means or ma-
terials of enjoyment. .. To say that such an action or
course of behavior, procured such pleasure or advantage,
or brought such inconvenience and pain, is quite a differ-
ent thing from saying, that such good or bad effect was
owing to the virtue or vice of such action or behavior. In
one case, an action abstracted from all moral considera-
tion, produced its effect; in the other case .. the moral-
ity or viciousness of it, produced the effect.6
The distinction between what is merely productive of desir-
able consequences and what is right is simply the distinction
between the efficacy of effort toward any end whatsoever and
the appropriateness of action to the worth of persons in a
community. Appropriateness or fitness of action clearly em-
braces consequences such as the gaining of "pleasure or advan-
tage" and the avoidance of "inconvenience and pain" but only
as consequences that fall within the scope of respect for per-
sons and justice among persons. The intention of right action
has as its referent the totality of persons considered with re-
spect to both individual and common good. In the intention of
right action, each individual is an object of ultimate concern. In
affirming and supporting the full range of possibilities open to

6. Joseph Butler, The Analogy of Religion to the Constitution and
Course of Nature (Philadelphia: J. B. Lippincott and Company, 1871),
pp. 111-12. Cf. Butler, Dissertation II: Of the Nature of Virtue, in British
Moralists, 1:246: "For as much as it has been disputed wherein virtue
consists ... there is in reality an universally acknowledged standard of it
... namely, justice, veracity, and regard to common good."


The Right


37





Moral Norms and Moral Order


the individual as a person and as a member of a community of
equals, moral or right action is humane and provident.
What is critical here is the acceptance of individuals as mem-
bers of the moral community. The rightness of truth telling, for
example, is blurred or overturned by the failure or inability to
recognize an individual as other than an aid or hindrance to
one's purposes or the purposes of one's party or group. If the
end of human existence and human association is the direct
realization of individual interests and demands, of whatever
sorts, then it is nonsense to talk of right conduct as that which
affirms and supports the worth or dignity of persons. All delib-
erate behavior presupposes some idea or image of the status or
"position" of other individuals. If individuals are not ends in
themselves, then truth telling, keeping promises, benevolence,
and the like cannot be projected as actions to be carried out as
alternatives to the direct pursuit of self-interest. In the recogni-
tion of individuals as members of a single moral community, on
the other hand, all of the rational sanctions of mutual esteem
are invoked and all of the justifications of rugged self-interest
are obviated.
The community of persons is in its very idea an open, unlim-
ited association. In any effort to limit the scope of the com-
munity, the individual encounters conflicts between what is
right in relations with individuals who are within the limited
community and what is right in relations with individuals who
are outside it. If any individual is to be regarded as an outsider,
then one must in some way deny to this individual the status (as
a person) that is enjoyed by an insider.7 One faces a moral

7. Cf. Henri Bergson, The Two Sources ofMorality and Religion (New
York: Henry Holt and Co., 1935). Concerning the Greek notion of
justice, Bergson says: "The progress which was decisive for the substance
of justice . consisted in the substitution of a universal republic, embrac-
ing all men, for that republic which went no farther than the gates of the
city, and within the city, was limited to free men.... There is nothing
more instructive than to see how the philosophers have skirted round it,
touched it, and yet missed it. Let us leave out Plato, who certainly in-
cludes the Idea of man among the transcendent Ideas: did it not follow
that all men were of the same essence? From this to the idea that all men,


38







predicament in which the same act is both virtuous and vicious;
in which what is owed to one individual in relation to his needs
is not owed to another individual having the same needs; in
which, in short, rightness varies in accordance with the social
predilections and commitments of the agent.
The idea of one community of persons transcends but does
not overturn the limited community existing as village, city, or
state. All limited communities are parts of the one community,
as all members of limited communities are members of the one
community.8 The norm of all limited communities, with re-
spect to the status of the individual, is the norm of the com-
munity of all persons. Each limited community, insofar as it
does not ignore the well-being of the individual, supports the
idea of community through the organization of functions and
the distribution of goods and services for the sake of those who
find themselves or place themselves under the care of the com-
munity. The effective work of the limited community would
be determined by the adequacy of resources with respect to the
needs of individuals, thus distinguishing the organized life of
cities and states from the organized life of villages and towns.

qua men, were of equal worth and that the common essence conferred on
them the same fundamental rights, was but one step. But the step was not
taken. It would have meant condemning slavery, giving up the Greek idea
that foreigners, being barbarians, could claim no rights" (p. 68).
8. Cf. Josiah Royce, The Hope of the Great Community, in The Basic
Writings ofJosiah Royce, ed. John J. McDermott (Chicago: The Univer-
sity of Chicago Press, 1969), 2:1150-52: ". . the sign of an ideal com-
munity of all the faithful ... is a bare suggestion of that ideal of the
community of mankind which it was the historic mission of Christianity
to introduce into the world ... and to hold before the world for the
healing of the nations. The present situation of humanity depends upon
the fact that for good reasons, which have to do not merely with the
sentimental and romantic aspirations of humanity, but also with the most
serious business in which men are engaged, the idea of community has
become more concrete, more closely related to the affairs of daily life, has
become more practicable than ever before. . The belief that mankind
can be and in the end shall be one, has thus for a long time had an
increased concreteness, definiteness, practical applicability, and despite
all the vast evils of our modern social order, a genuine hopefulness."


The Right


39





Moral Norms and Moral Order


Right Actions and the Rights of Persons
To speak of individuals as persons and as equals is to introduce
into the discussion of rightness the notion of rights. What is
meant by 'person' is simply the rational consciousness in its
openness to truth and to the responsibilities of rational self-
determination in a community. If there are persons, there are
claims upon the truth and upon opportunities for self-fulfill-
ment. The agent as a person would act properly or rightly in
accordance with his own claims and in support of the claims of
others. Claims, viewed as anterior to social and political con-
ventions and permissions, are rights, and rights are the proper-
ties of equals. Equality of rights does not mean that all persons
are expected to exercise claims upon the same precise things;
rather, it is compatible with diversity in interest and need. What
is wrong or blameworthy in the exercise of rights in a commun-
ity is unilateral action of individuals for their own exclusive
advantage. There can be no right in a community to act in
contempt of the claims of others. The right to preserve one's
life can have no moral justification when expressed, as it is by
Hobbes, as "a right to every thing; even to one another's
body."9 The same limitation of exercise would apply to other
rights, such as the right to property.10 Even what is recognized
as the right to develop one's talents can have moral justification
only where there is the affirmation by one individual of equal
opportunity for the development of the talents of others. Some
of the difficulties in determining the extent of exercise of rights
in society are avoided in recognizing that rights are in idea
things of limit.
This point is apparent if one thinks of rights and right actions
in relation to freedom. Human freedom is self-determination


9. Hobbes, Leviathan, chap. 14.
10. Cf. John Locke, The Second Treatise of Civil Government, ed.
J. W. Gough (Oxford: Basil Blackwell, 1948), chap. 5, p. 19: "I dare
boldly affirm-that the same rule of propriety, viz., that every man should
have as much as he could make use of, would hold still in the world
without straitening anybody ... had not the invention of money, and the
tacit agreement of men to put a value on it, introduced (by consent) larger
possessions and a right to them .. ."


40







within a community. The freedom to act as one pleases, in
accordance with a presumed "right to every thing" and in indif-
ference to the interests and needs of others, would be the free-
dom of the solitary individual or the freedom of the strong or
clever person. This freedom would be defective either in lack-
ing the benefits of association and cooperation or in enjoying
those benefits in a parasitic way. Richard Hooker in the six-
teenth century spoke of freedom as rational coexistence:
... forasmuch as we are not ourselves sufficient to furnish
ourselves with competent store of things, needful for such
a life as our nature doth desire, a life fit for the dignity of
man; therefore to supply those defects and imperfections
which are in us, as living simply and solely by ourselves,
we are naturally inclined to seek communion and fellow-
ship with others. This was the cause of men's uniting
themselves at the first in politic Societies, which societies
could not be without Government, nor Government with-
out a distinct kind of Law ... ..

This must not be taken to mean that right action is what is
determined by social or political agreement. Ethical concerns
cannot be annulled by what are held to be extra-ethical de-
mands arising from social or political expedience. Right action
is the action that both affirms and accords with the rights of
persons constituting a community of equals. Right action, in
other words, is what would be agreed upon by those who ac-
cept the norm of respect for persons as the basis of social order
and social justice.12 This is the conduct of individuals who
recognize the opportunities and the constraints of freedom and
who seek to establish and maintain an order of justice under

11. Richard Hooker, Of the Laws of Ecclesiastical Polity (London:
J. M. Dent and Sons, Ltd., 1954), 1:188. Cf., J.-J. Rousseau, The Social
Contract, 1. 8, and Aristotle, Politics, 1. 1. 9-12.
12. Cf. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard
University Press, 1971), p. 17: "It is clear . that. . one conception of
justice is more reasonable than another, or justifiable with respect to it, if
rational persons in the initial situation would choose its principles over
those of the other for the role of justice. Conceptions of justice are to be
ranked by their acceptability to persons so circumstanced."


The Right


41





Moral Norms and Moral Order


which each individual is responsible for the freedom of the
community as a whole. Right action, freedom, and justice are
interchangeable notions.
One faces, however, the difficult problem of distinguishing
classes or categories of actions through which the advantage of
all persons in a community would be promoted without con-
flict and injury. Categories of right actions correspond with the
categories of needs. At the risk of simplifying what is complex,
one dares to mention broad categories of needs, namely, physi-
cal comfort and security, intellectual and aesthetic cultivation,
and association. One thinks of efforts to satisfy these needs as
the contributing parts of a consistent program of human good.
With respect to the needs distinguishable within any category
-for example, physical comfort and security-there would of
course arise questions concerning the precise actions to be car-
ried out for the sake of particular goods. The resolution of such
questions would require agreement as to what is essential to
human comfort and security and what is peripheral or indeed
harmful, whatever the variations and distortions in human de-
sires.1 3
In a completely coherent order of conduct, all actual and
conceivable right actions would be carried out free of conflict
and no performance of one action would prevent or hinder the
performance of another. One does not imagine that such an
order of conduct would be realizable except in a small, uniform
community. One can imagine as workable in any community,
however, a scheme of sustaining actions (truth telling, promise
keeping, the obligations of distributive justice, the obligations
of remedial justice, benevolence) through which the life and
freedom of persons can be supported,14 a scheme providing at

13. Cf. Aristotle, Politics, 1. 3. 9, trans. H. Rackham (Cambridge,
Mass.: Harvard University Press, 1972): ". .. it is of these goods [which
are necessary for life and useful for the community of city or household]
that riches in the true sense at all events seem to consist. For the amount
of such property sufficient in itself for a good life is not unlimited.... for
a limit has been fixed, as with the other arts, since no tool belonging to
any art is without a limit whether in number or in size, and riches are a
collection of tools for the householder and the statesman."
14. Cf. Bernard Bosanquet, The Philosophical Theory of the State


42







the same time the moral structure of a body of civil law. 15This
order of sustaining actions would embrace permissible actions,
which do not in idea conflict with sustaining actions and which
pertain to the freedom of the individual in some matters to do
or not to do.16 There would remain a surdd" of conflicts within
the order of sustaining actions-for examples, the conflict be-
tween truth telling and the keeping of confidence, between
refraining from injuring another and injuring another in self-
defense. Moral dilemmas of this sort, as distinct from resolvable
or merely apparent moral conflicts, are irreducible in principle.
They arise from the irreducible complexity of human life and
from the moral divergence of associative and dissociative be-
havior.
One may be tempted to find a way out of such difficulties
through the idea of the relativity of all action to circumstances
or through the idea of the subordination of certain actions or
duties to others as circumstances require. The inadequacy of
any qualification of the rightness of action has been pointed


(London: Macmillan and Company, Ltd., 1965), p. 157: "Prima facie,
there may be, as with systems which compose the mind, all degrees of
alliance, indifference, or opposition between ... groupings of persons;
and the same person, belonging to many different groups, may find his
diverse 'capacities' apparently at variance with one another. A conscien-
tious Trade Unionist may find his capacity as a member of the Union,
interpreted as binding him to do his utmost for the amelioration of work-
ing class conditions in general, apparently at variance with his capacity as
the head of a family bound to provide immediately for those whom he has
brought into the world. Or a judge or magistrate, obliged to enforce what
he conceives to be a bad law, may find his official capacity apparently at
variance with his duty as a conscientious citizen. It is plain that unless, on
the whole, a working harmony were maintained between the different
groups which form society, life could not go on."
15. Cf. John Henry Merryman, The Civil Law Tradition (Stanford:
Stanford University Press, 1969), pp. 98-108.
16. Cf. Georg Henrik von Wright, Norm and Action. A Logical Inquiry
(London: Routledge and Kegan Paul, Ltd., 1963), p. 144: ".. a set of
commands and permissions is consistent (the norms compatible) if, and
only if, it is logically possible, under any given condition of application, to
obey all the commands collectively and avail oneself of each one of the
permissions individually which apply on that condition."


The Right


43





Moral Norms and Moral Order


out by H. A. Prichard in what he says against the relativity of
duty:
... the term 'absolute' applied to 'duty' can only add
emphasis. There cannot be two kinds of duty, the one
absolute and the other not. Either we are bound to do
something or we are not; we cannot be bound to do some-
thing but not absolutely.17
It would seem that the determination of what is right or
fitting, as sustaining rather than permissible action, is ultimate:
there can be no further consideration of what should be done
or of the incentives for acting in a certain way. This means that
right or fitting action carries with it the idea and force of what
is binding or obligatory, thus arousing a distinct volitional re-
sponse beyond the appeal of other incentives to act in other
ways. The awareness of what is right or fitting is, then, the
awareness of what is obligatory. This is to say that the individ-
ual, in knowing of what is right or fitting, knows of obligation.
If one could know what is right or fitting without recognizing
such action as the fitting object of the will, one could somehow
know what should be done without indeed knowing what
should be done. The obligation to act in a certain way rests
simply upon the character of the action itself as present to the
moral awareness of the individual. The individual cannot know
what is right (and binding upon him) and have this knowledge
overturned or rendered nugatory by considerations extrinsic to
his knowing.
To recognize that all action occurs in a situation (that is, in a
context or milieu that is formed in part by circumstances) is
not to allow that the determination of rightness is relative to
circumstances. Circumstances as such are morally blind and
uninstructive, and no appeal to circumstances can settle a
moral question. To find oneself unexpectedly without funds to
purchase one's supper would not itself indicate what one
should do, whether to steal food, rob a passerby, drop in upon a

17. H. A. Prichard, "Moral Obligation," in Moral Obligation. Essays
and Lectures (Oxford: The Clarendon Press, 1949), p. 147.


44





The Right 45
neighbor or friend, or simply go without supper. What is done
in this situation will be one out of a number of possible actions,
all of which are in accord with the same circumstances. What is
right or fitting in this situation will be indicated by the individ-
ual's appreciation of the rights of others as well as by the aware-
ness of his own plight. One must say, then, that the recognition
of the rights of persons and of the limits of these rights under
the reciprocal freedom of a community is illuminative of what
is fitting or reasonable behavior in particular situations. In
every situation the individual must act so as to exploit the
circumstances or conditions of human existence for the sake of
distinctly human ends.











4 Justice












Morality and Law: The Historic Setting
There is a direct relationship between morality and law. Indi-
viduals as social beings live under regulations of one sort or
another and in being concerned about themselves are directly
concerned about the fairness of the rules by which they are
governed. The fact that legal procedure has to do chiefly with
the meaning and application of existing law and with legal
precedents established in various ways does not affect at all the
pertinence of moral discussion to legal matters. To any individ-
ual apprehended by the police or convicted by a jury or sen-
tenced to jail by a judge, it is a primary concern whether or not
at each stage of the legal process he has received his due as a
citizen and as a person. Aristotle recognized that law is insepa-
rable from morals and that considerations of justice belong to
ethics, in his view that justice in the broadest sense is simply the
whole of virtue practiced with respect to others, that is to say,
practiced in a social context. The presumption of good order,
then, is that the laws prescribe only what is reasonable and
fitting and that the enactment of laws is merely part of the
effort of an organized society to support the virtue or goodness
of its members. A law that is not the best ordering of means to
46







end is, accordingly, a defective or unjust law or simply no law at
all.
To speak of the relation of governance to the well-being of
the governed is to think of the rights and duties of the gov-
erned. A right is an indefeasible claim of an individual upon a
status or condition of existence. Ultimately all rights, however
distinguished and enumerated, arise from the pretension of a
rational being to the freedom of an autonomous life. Insofar as
this freedom is to be enjoyed in a social context, there must be
a concern of rational beings to establish the best order for their
mutual benefit. Both as formal recognition of claims upon posi-
tive goods and as formal guarantee of redress of injuries, every
scheme of law and order would have its foundation in a bill or
charter of rights rather than in a covenant or contract. All
theories of the social contract express, directly or indirectly,
either the position of Glaucon in Plato's Republic1 or the posi-
tion of John Locke in his Second Treatise of Civil Govern-
ment.2 Glaucon held that covenant or contract is a mere con-
vention, an arbitrary instrument emerging out of the struggle
for power as a compromise between inflicting injury and suffer-
ing injury (under which compromise, whatever is ordered is
"lawful and just"); John Locke, on the other hand, held that
the contract is an instrument through which the individuals
who come together to constitute a political society acknowl-
edge rights that are anterior to the contract itself. The former
position is untenable inasmuch as it obviates any real distinc-
tion between a just and an unjust order and places the content
of the contract beyond the moral scrutiny of those who are
bound by the contract. The latter position really declares in so
many words that rational beings in the expression of their will
to freedom are moved to affirm their natural rights, including
the right to good government and good laws.3 A convenant or
1. Plato, Republic, 2. 5. 358E-359B.
2. John Locke, The Second Treatise of Civil Government, ed. J. W.
Gough (Oxford: Basil Blackwell, 1948), chap. 2, p. 5; chap. 9, p. 64.
3. Cf. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard
University Press, 1971), p. 11: "My aim is to present a conception of
justice which generalizes and carries to a higher level of abstraction the
familiar theory of the social contract as found, say, in Locke, Rousseau,


Justice


47





Moral Norms and Moral Order


contract in this sense thus points beyond itself to the moral
foundation obtaining in the claims of persons. It is with the
historic debate about such a "foundation of rights" that the
following discussion is concerned.
The Institutes of Justinian open with the definition of jus-
tice as "the constant and lasting will to give to each man his
due."4 Roman law distinguished between the free man and the
slave; it was primarily concerned with the claims of the free
individual, that is, the person having a reasonable will, capable
of having and being subject to rights, and having capital status
(liberty, citizenship, and membership in a family). The rights or
claims of free individuals were distinguished as rights with re-
spect to persons (ius personarum), rights with respect to things
(ius rerum), and rights of civil procedure involving property,
contract, and injury (ius actionum).5 A right against persons is
a claim arising from status or condition, as a right over things is
a claim upon the acquisition and use (dominium) of goods. The
rights of civil procedure, not really a distinct genus of rights,
derive from the rights against persons and the rights over
things.6 What is reflected here is essentially Aristotle's scheme
of particular justice, namely, the justice that pertains to divisi-
ble goods and in its branches is distributive, commercial, and
remedial.7 The rights of persons-of individuals invested with
titles and subject to obligations-are the claims of free individ-
uals upon the conditions of well-being insofar as these are


and Kant. .. the guiding idea is that the principles of justice for the basic
structure of society are the object of the original agreement. They are the
principles that free and rational persons concerned to further their own
interests would accept in an initial position of equality as defining the
fundamental terms of their association."
4. Corpus luris Civilis, vol. 1, Institutiones, ed. Paul Krueger (Berlin,
1877), 1. 1. 3: "Iustitia est constans et perpetua voluntas ius suum cuique
tribuens."
5. Ibid., 1.2. 12; 1. 3;2. 1;4. 6. 1.
6. Cf. John Austin, Lectures on Jurisprudence (London: John Mur-
ray, 1873), 1:41-47, 379-95.
7. Cf. Aristotle, Nicomachean Ethics, 5. 2. 12-13; 5. 3; 5. 4.


48







within the command of society acting with power and author-
ity imperiumm).
In spite of the limitations of ancient legal thought, in its
notions of "person" and "status" there is the clear affirmation
that law is a rule of reason which expresses what is good and
equal (ars boni et aequi). This affirmation is the moral preten-
sion to require of the processes of civil order the preservation of
the freedom of the individual. This is in the main the position
of medieval and modern writers who carried forward and re-
fined the view that law in idea is both a declaration and a
defense of the rights of citizens. This position differs sharply
from the view, dominant in the modern world from the time of
Hobbes, that law in definition is the will of a sovereign power:
law is what is commanded or ordered by any source that can
compel obedience.8 This modern view treats law as a political
phenomenon, as an accoutrement of power and an instrument
of coercion.9 If law is necessary to peace and order and if the
reasonableness of the law is not a sufficient condition of obedi-
ence and orderliness, then the essence of law must simply be
found in what is sufficient for public quiet, namely force or
sanction. This is the line of argument advanced by writers from
Hobbes to Kelsen, an argument that does not deny that "good
laws" are precisely those which support, in Hobbes' words,
"the safety of the people" in "all ... contentments of life."
What is denied is that the "lawful" can have validity other than
in terms of power or sanction. Considerations of the content of
law do not, then, touch or affect the validity of law. And the
8. On the main patterns in European political and legal thought, cf.
Michael Oakeshott's introduction to Hobbes' Leviathan (Oxford: Basil
Blackwell, 1960), p. xii.
9. Cf. A. Passerin d'Entreves, Natural Law: An Introduction to Legal
Philosophy (London: Hutchinson's University Library, 1951), pp. 96-97:
"The rise of modern jurisprudence is marked by the abandonment of
natural law and by a new or 'positive' approach to legal experience. ...
The word 'positivism,' if one cares to use it in this connection, can indi-
cate only an attitude rather than a definite philosophical creed. Indeed
the oldest argument against natural justice is the skeptical argument. It
goes back to the very beginnings of speculative thought. It has a long
history which stretches down from the Sophists to the present day."


Justice


49





Moral Norms and Moral Order


intrusion of moral questions upon matters of legitimacy, so
goes this argument, can only result in the confusion of moral
and legal categories and the hampering of analysis in these
separate and distinct realms of investigation.
The difficulty here, as observed in an earlier discussion, is the
confusion between what is ordered and what must be obeyed.
Obedience to law is clearly not entailed by command, even if
one attempts to hold that 'to be ordered' means simply 'to be
compelled to obey'. The precise content of what is commanded
is always open to the moral scrutiny of those who are called
upon to obey the command, and the presumed nexus between
command and obedience disappears entirely with the action of
the individual who chooses to defy a command. As command is
the act of one will, so disobedience is the act of another will in
its independent dissent and opposition.
In the contemporary world, H. L. A. Hart has taken up the
matter at this point, contending that what is normative in the
realm of law is not the command or sanction of the sovereign
power but the validity or legitimacy of the law's enactment.10
His analysis of law or legal systems reveals elements of two
types, namely, primary rules and secondary rules. Primary rules
simply indicate what the law is or what is to be obeyed (that is,
what obligations are imposed for doing and forbearing in a
given social group) whereas secondary rules indicate what pow-
ers are conferred to support these obligations or to modify
obligations in one way or another." Among the secondary
rules is the ultimate rule of recognition, which provides the
criteria by which the primary rules of obligation are identified
and accepted as valid. This rule of validity is itself neither valid

10. H. L. A. Hart, The Concept of Law (Oxford: The Clarendon Press,
1961), pp. 18-79.
11. Ibid., pp. 77-88. Cf. ibid., p. 79: "We shall not indeed claim that
wherever the word 'law' is 'properly' used this combination of primary
and secondary rules is to be found; for it is clear that the diverse range of
cases of which the word 'law' is used are not linked by any such simple
uniformity, but by less direct relations. ... We accord this union of
elements a central place because of their explanatory power in elucidating
the concepts that constitute the framework of legal thought."


50






nor invalid but "is simply accepted as appropriate for use in this
way."12
This approach to the problem of law does not really meet the
moral demand of distinguishing just law from what is unjust.
What Hart offers are largely technical observations in the place
of theoretical considerations, and the substantive questions
about justice and fairness are left unanswered. A legal instru-
ment that is recognized or recognizable as having certain
"marks" of "legitimacy" is not thereby less subject to review or
debate on moral grounds. Procedure in the guise of "secondary
rules" is a housekeeping matter, arising from the need to guar-
antee that the handling of human affairs is not at any point left
up to caprice or hazard. Procedure is in this way a part of
justice; it cannot, even in the form of a rule of recognition, tell
us what justice is. As a theory of law, Hart's position is not
significantly different from the tradition that emerges in the
modern world with Hobbes, namely, that law in its essence or
fundamental character is simply "Will and Artifice" and is ac-
cordingly the voice of power rather than the rational expres-
sion of authority.
The development of legal thought from Hobbes to John
Austin, Hans Kelsen, and H. L. A. Hart is the expression of
efforts to distinguish jurisprudence from ethics and sociology
and to provide definitions of legal concepts that will be useful
in separating law from morality.13 The importance of this de-
velopment in the clarification of legal usage, particularly as it
affects the formulation of law and the administration of jus-
tice, is apparent. Difficulties arise, however, when the question
at hand is not what the law is or what the law says (and means)
but whether what the law says is morally tenable or whether
the existing or projected law is the best of possible formula-
tions of public policy. It is precisely at this point that the utility
of legal positivism or legal analysis, in whatever form, would

12. Ibid., pp. 105-6.
13. Cf. John Austin, The Province of Jurisprudence Determined, in
Lectures on Jurisprudence, 1:81-348. On the different legal positions
distinguishable as 'positivistic' or 'analytic', cf. Hart, The Concept of Law,
pp. 25 3-54, note (to chap. 9, p. 181) on Legal Positivism.


Justice


51





Moral Norms and Moral Order


seem to be exhausted, and one must look elsewhere for answers
to substantive questions concerned with the moral foundations
of law.

The Search for an Alternative to Positivism
Modern views, divergent from the positivistic and analytic,
have sought to give due attention to the content of just law and
to the determination of rights in society. These philosophies of
law are diverse, having appeared in response to different moral
and legal problems. In general, these philosophies have con-
cerned themselves with the purpose of the law, examining the
moral and social ends with which legislation is involved or to
which legislation is to be applied. Paul Vinogradoff, in Com-
mon Sense in Law, has expressed this approach to law:
Law aims at right and justice however imperfectly it may
achieve this aim in particular cases. ... If we omitted this
attribute from our definition, we should find it very diffi-
cult to draw a line between any kind of arbitrary order as
to conduct, e.g., the levying of blackmail by a regular
association. There must be a certain balance between jus-
tice and force in every system of law; and therefore it is
impossible to give a definition of law based exclusively on
coercion by the State.14

To say with Vinogradoff that "law aims at right and justice" is
to recognize that law, as an ordering of means to ends, accords
with or is at variance with a recognizable moral norm or norms.
To this extent, legal investigation is a part of ethics.
For Vinogradoff, law is primarily volition rather than inter-
est and is defined as a "set of rules imposed and enforced by a
society with regard to the attribution and exercise of power

14. Paul Vinogradoff, Common Sense in Law (New York: Henry Holt
and Company, 1914), p. 42. Cf. W. W. Buchland, Some Reflections on
Jurisprudence (Cambridge: Cambridge University Press, 1945), p. 33:
"No doubt the law does set up in a sense a moral standard and is in the
main aiming at right conduct; a view of law which ignores this is mislead-
ing. But this is not a reason for including in our definition of law what is
not necessarily true of the 'law' with which legal analysis is concerned."


52







over persons and things."15 A right, accordingly, is "the range
of action assigned to a particular will within the social order
established by law."16 Vinogradoff has in mind the agreement
of wills brought about by social necessity and supported by
force. Into this total legal operation fall both acts of legislation
and judge-made (juridical) law, the latter embracing customary
law, judicial decisions, and equity.17 Law for Vinogradoff
emerges, in concept, as a determination of rights under the
existing conditions of a society as a whole.18
The views of Vinogradoff, as representative of "historical
jurisprudence,"19 are not unrelated to the views of those who
came to be grouped together under the "sociological school."
Both historical and sociological jurisprudence arose out of at-
tention to the demands of social practice and social sentiment
(the "living law of people"), together with the singular influ-
ence of the writings of Hegel.20 In sociological jurisprudence,
the law is viewed as an ordering of wills and interests, an order-
ing that gives direction to the "movement" or "social evolu-
tion" of a given society.21 This direction, in the view of Benja-

15. Ibid., p. 59.
16. Ibid., p. 62.
17. Ibid., pp. 116-18.
18. Paul Vinogradoff, Custom and Right (Cambridge, Mass.: Harvard
University Press, 1925), p. 15: ". . while law in its own field may work
by dialectical analysis, it receives its synthetic impulses from the contents
supplied to it by various human activities which are organized and coordi-
nated by it."
19. The "Historical School" of jurisprudence emerged in two bran-
ches, in Germany and in England, from the influence of the writings of
Friedrich Karl von Savigny.
20. Hegel thinks of law as the reason immanent in organized social
existence, i.e., law is an ordering through which the freedom of the indi-
vidual is actualized. Cf. Philosophy of Right trans. T. M. Knox (Oxford:
The Clarendon Press, 1962), p. 167: ". the genuine truth is .. the
building of reason into the real world. ... It is by working at this task that
civilized man has actually given reason an embodiment in law and govern-
ment and achieved consciousness of the fact."
21. Cf. W. Friedmann, Law in a Changing Society (Berkeley and Los
Angeles: University of California Press, 1959), p. 22. Friedmann speaks of
". .. the slowly growing pressure of changed patterns and norms of social


Justice


53





Moral Norms and Moral Order


min Cardozo, is essentially a determination of priorities, that is,
a movement in "social engineering."22 The basis of any order-
ing of wills and interests must be the knowledge gained "from
experience and study and reflection; in brief, from life it-
self."23
Cardozo's appeal to "experience, study, and reflection" is
made on behalf of "the estimate of the comparative value of
one social interest and another when they come, two or more
of them, into collision . ."24 The normative character of
what is sought by Cardozo is made clear in his saying that he is
concerned with "the justice to which law in its making should
conform."25 He is satisfied, accordingly, that sociological ju-
risprudence without the idea of natural law can offer nothing
more than "provisional and tentative" proposals as the content
of just law. What is involved in Cardozo's view is a certain
conjunction of experience and creative insight in a procedure
that is objective rather than subjective and tentative. In Car-
dozo's words:

The search ... is for something external, a norm which
finds expression in custom or convictions, but, in the very
act of declaring what is found, there springs into being a
new norm, a new standard, to which custom and convic-
tions tend thereafter to conform.26

Cardozo's view of law in its relation to social purpose meets

life, creating an increasing gap between the facts of life and the law, to
which the latter must ultimately respond."
22. Benjamin Cardozo, The Growth of the Law (New Haven: Yale
University Press, 1924), pp. 106-7: "An appeal to origins will be futile,
their significance perverted unless tested and illumined by an appeal to
ends."
23. Benjamin Cardozo, The Nature of the Judicial Process (New Ha-
ven: Yale University Press, 1921), p. 113.
24. Cardozo, The Growth of the Law, p. 85.
25. Ibid., p. 87.
26. Ibid., pp. 95-96. Cf. ibid., p. 87: "Justice in this sense is a concept
by far more subtle and indefinite than any that is yielded by mere obedi-
ence to a rule. It remains to some extent, when all is said and done, the
synonym of an aspiration, a mood of exaltation, a yearning for what is
fine or high."


54







the old moral problem of the ordering of means to ends. To
recognize with sociologists that the ordering of human affairs is
relative to time and place is not, in fact, to settle any genuine
moral or social issues. One faces again and again the problem of
determining in what respect, if any, one interest manifesting
itself in a society is "higher than" or "prior to" any other
interest or interests. There is a sense in which all moral currents
in a society are expressions of time and circumstance. What is
required is a perception of the propriety of an interest or de-
mand, since propriety is separable from the force or pressure
with which an interest or demand is supported and advanced in
a particular society. The search for the purpose of the law thus
involves an appeal beyond social process to objective moral
norms, with respect to which competing interests can be as-
sessed and priorities can be determined in any and every order-
ing of means to end. Cardozo recognizes this fundamental rela-
tionship between morality and social justice in his appeal to the
"teachings of right reason and conscience"27 in correction of
the limitations of sociological method.28
The moral force of concern with the purpose of law, so
evident in the writings of Benjamin Cardozo, is manifest in a
distinct way in the work of Rudolf Stammler. Stammler's
theory of justice is a restatement of Kant's ethics or, rather, an
application of the "ethics of the pure will" to the problem of
law. For Stammler, ethics and law are concerned with the same
subject matter, namely, "the voluntary activities of men," and
ultimately go back to the same fundamental law as the highest
aim of the will.29 Law, or just law, is the determination of what
is right as "the regulation of the social life of man"; the ethical
is the commitment of the person in willing what is legally right
from a good motive, that is, for its own sake. As opposed to
"conventional rules" and "arbitrary commands," the idea of
just law involves "a peculiar quality of norms laid down by

27. Cf. Cardozo, The Nature of the Judicial Process, p. 137.
28. Cf. Huntington Cairns, Legal Philosophy from Plato to Hegel (Bal-
timore: The Johns Hopkins Press, 1966), pp. 237-41.
29. Rudolf Stammler, The Theory ofJustice, trans. Isaac Husik (New
York: The Macmillan Comapny, 1925), p. 65.


Justice


55





Moral Norms and Moral Order


men"; the idea of just law is "a method of determining when
the content of specific law is just."30 The idea of law itself has
no material content that is distinguishable from the content of
a particular law.31 Concerning the content of particular laws,
Stammler says:
Every rule of external conduct contains two kinds of ele-
ments which make up the content of the rule. The one is
made up of those elements which constitute this rule a
specific thing.... The second consists of the intellectual
elements of a will content which are necessarily and uni-
versally contained in each and every law.32

In seeking for the "universal and necessary elements and
their fundamental and constructive unity," Stammler avoids all
contingent conditions of social life and finds the abstract idea
of law in the formula of "a community of men willing
freely."33 This formula, as Stammler believes, comprehends
"all possible purposes of persons united under the law."34 In
seeking to bridge the gap between the concept of law and the
laws themselves, Stammler offers "principles of just law,"
which indicate as methodological guides what can be consid-
ered the just treatment of persons in the enactment of particu-
lar laws, that is, in the ordering of relations in a given commun-
ity.
The strength of Stammler's position is the insistence that law

30. Ibid.,p. 89.
31. Ibid., p. 91.
32. Ibid., p. 133. Cf. ibid., pp. 472-73: "The concept of law is prelimi-
nary to the problem of its compulsory character, and the latter can be
established only as a means to the uniformity of social life. Finally, as the
latter is always conditioned by just legal content, this, as the culminating
and dominant point, forms the crown of social study in general and offers
the place of union for all investigation of a social condition."
33. Ibid.,p. 153.
34. Cf. ibid., p. 157: "The idea of a community of free men is not
itself a legal proposition. It is not on the same level with the rule that a
debtor must add interest on a delayed payment. ... In the idea of a just
law as defined by the social ideal we are dealing not with the content of a
legal proposition but with a formal method."


56






as an ordering is a moral matter, which accords with or fails to
accord with the moral norm of the idea of law. Thus a precise
legal content is morally binding only when this content is con-
sistent with the form of just law: the formula of "reciprocal
freedom" under which each individual is able to be his own
neighbor. Stammler is maintaining that every law, as an order-
ing of relations in a community, is a pretension to just law but
that not every law embodies what is just. Accordingly, every
statement of what law is entails a statement of what law ought
to be.
Stammler's position affirms that lawmaking is an enterprise
occasioned by a social need and governed by a moral norm.
This is in direct opposition to the view that law can arise from
determinations that have as their object merely the exercise
and consolidation of power, as, for example, on the part of any
individual or individuals seeking to rule for their own interest.
Stammler's position offers a "middle way" between holding
that every legal order is arbitrary and holding that every legal
order is rational and just. In saying that every law makes a
pretension to be "just law," Stammler is maintaining that any
ordering as such is a relation of means to an end for a commun-
ity of persons and involves, accordingly, a deliberate act in
furtherance of the good of that community. To deny Stam-
mler's point would be to hold that one can somehow engage in
prescribing means to an end without the recognition, on one's
own part or the part of others, that such is indeed an act of
prescribing in accordance with some aim or some norm of hu-
man good. This would make of legislating a grand game of
self-deception as well as the deception of others. But to accept
Stammler's point would not be to hold that in lawmaking one
can prescribe only what is the best means to ends and therefore
what is indeed just. In the realm of the normative, there are
more or less adequate means to the same end, as there may be
means to illusory or mistaken ends or means to ends imper-
fectly understood. The involvement with ends and means is
always an involvement with norms and, in ultimate intention,
with the norm of human good. In this sense, all lawmaking as
well as all deliberate behavior in society must be said to aim at


Justice


57





Moral Norms and Moral Order


what is just, however defective such lawmaking may in fact be.
The problem that is not fully resolved in Stammler's exposi-
tion is that of the character of the norm of justice. The norm of
a community of persons willing freely can indeed be under-
stood in terms of "equal justice" as the meaning of "reciprocal
freedom." This would require that no individual can express his
freedom in a way that is arbitrarily denied to another. But then
it must be granted that the norm of just law, the "social ideal,"
is itself a moral content that is distinguishable from other
"ways of ordering" of human affairs. In seeking to separate in
just law what is "merely empirical and subject to constant
change" from what is invariant,35 Stammler maintains that the
invariant element is a formula of consistency or noncontradic-
tion. Such a formula can be understood as a principle of fair-
ness, inasmuch as one wishes to hold that a rational being can-
not propose any scheme of unilateral freedom without involv-
ing himself in a contradiction. Unilateral freedom, viewed as a
rule of conduct-as universal practice-is inconsistent in that its
results, by encroaching upon freedom, are incompatible with
its aim as the affirmation of freedom. From this it does not
follow, however, that reciprocal freedom is nothing but consis-
tency of action. Respect for persons as ends always, as the full
meaning of "reciprocal freedom," is a distinct moral content
and not merely a formula for bringing order to the variable
content of human volition. In seeking to avoid the problem of
"validity of content" of the "old law of nature," Stammler
appears to ignore the problems arising out of his one "formal
method" and to confuse what is sufficient with what is merely
necessary in the establishment of a just social order.36
Lon Fuller, in more recent times, has sought in a different
way to advance a theory of legality and justice as "some variety

35. Ibid., p. 90.
36. Cf. Gustav Radbruch, Rechtsphilosopbie, 6th ed. (Stuttgart:
K. F. Koehler, 1963), p. 117: "Die Lehre vom richtigen Rechte will und
kann keinen einzigen Rechtssatz entwickeln, der mit Allgemeingiiltigheit
als richtig erweisen werden k6nnte. Sie erkauft die Allgemeingiiltigheit
ihrer Begriffe um den Preis ihres rein formalen Charakters. So ist sie
weniger eine Rechtsphilosophie als eine Logik der Rechtsphilosophie.


58







of natural law."37 Fuller is concerned more with procedural
than with substantive matters and, accordingly, more with a
procedural than with a substantive "natural law." He speaks of
"the inner morality of law and of the demands of this morality:
generality of rules, promulgation, limitation upon retroactive
laws, clarity, noncontradiction, avoidance of requiring the im-
possible, constancy of law in time, and congruence between
enacted and administered law.38
Fuller holds, further, that law is not simply a phenomenon
of social existence, not merely a "manifested fact of social
authority or power.""39 The making and administration of law
is a purposeful activity. There is a purpose to the law as a whole,
namely, "that of subjecting human conduct to the guidance
and control of general rules.40 This is Fuller's "modest indul-
gence in teleology," yielding a "procedural natural law" which
is neutral with respect to many ethical issues but committed to
a view of man as "a responsible agent, capable of understanding
and following rules, and answerable for his defaults."41
But Fuller wants to declare more than this, and so he pro-
poses as the substantive aim of the law both the support of
community and the support of communication among men as a
way of being alive. In Fuller's words:
If I were asked ... to discern one central indisputable
principle which may be called substantive natural law-
Natural Law with capital letters-I would find it in the
injunction: Open up, maintain, and preserve the integrity
of the channels of communication by which men convey
to one another what they perceive, feel and desire."42

There is significance in Fuller's recognition that attention to
procedure, in the form of a "procedural natural law," involves a

37. Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale
University Press, 1969), p. 96.
38. Ibid., pp. 33-94.
39. Ibid., p. 145.
40. Ibid., p. 146.
41. Ibid., p. 162. Cf. Lon L. Fuller, The Law in Quest ofltself(Chi-
cago: The Foundation Press, 1940), pp. 99-140.
42. Fuller, The Morality ofLaw, p. 186.


Justice


59





Moral Norms and Moral Order


commitment to an end or ends that are beyond the procedures
themselves. There is at least a tacit recognition of claims, upon
community and the channels of communication, as ends of law
which go beyond the mere determination of who is to be
obeyed by whom and beyond what is required by the grammar
and logic of "correct" lawmaking. Fuller thus comes in his own
way to a recognition of rights and duties that are anterior to the
written laws; insofar as the laws of a society give attention to
those rights and duties they can be regarded as good laws.
Fuller's "modest indulgence in teleology" is an affirmation of
an order of law that accords with the rationality and respon-
sibility of individuals who seek to exercise their freedom in
an open society.
From Lon Fuller's natural law ideas we turn finally to the
theory of political justice found in John Rawls's A Theory of
Justice. Rawls offers a position which is explicitly a restate-
ment, at "a higher level of abstraction," of 'social contract'
views coming down from Hume, Locke, Rousseau, and
Kant.43 This "higher level" is simply the level of the regula-
tive principles of human association, which define the equal-
ity of "free and rational persons." This is the level of justice
as fairness.
The equality that Rawls expounds is the equality of access to
primary goods, namely, rights and liberties, powers and oppor-
tunities, income and wealth.44 This is the first of two primary
principles of justice. The sense of the first principle carries over
to the second, namely, that inequalities are to be permitted
only where they are of the greatest benefit to the least advan-
taged in a society and are attached to stations open to all under
conditions of fair equality of opportunity.
Rawls conceives of organized society as a rational order un-
der which an individual would choose to forfeit the possibility
of having more than others if there are guarantees that he will
not have less than others.45 And under this order, every advan-

43. Rawls, A Theory ofJustice, p. 11.
44. Ibid., p. 62. Cf. ibid., p. 60.
45. Ibid., pp. 150-51: "Since it is not reasonable ... to expect more
than an equal share in the division of social goods, and since it is not


60







tage to any given individual, in being of benefit to the least
advantaged, must be of benefit to all. In this way, Rawls argues
for the recognition of a residual respect for the individual who
in his status as a free and rational being and as a citizen is not to
be disadvantaged by the social arrangements set by other free
and rational beings. This has much of the sound of the tradi-
tional view, coming down from Aristotle, that just law is gov-
ernance that is ordered to the common good.
The device that Rawls employs to advance his view of equal-
ity and fairness is the "veil of ignorance" in the "Original Posi-
tion," in which situation presumably the principles of justice
would be decided upon.46 In the Original Position, the individ-
ual is taken to be ignorant of precisely that knowledge about
himself that could be exploited so as "to tailor principles to his
advantage."47 In this situation, behind a veil of ignorance, one
would choose a system of justice in which moral claims are
separated from claims that arise from the accidents of birth
(physical and mental endowments or talents) and social posi-
tion.48 The individual thus adopts the principles of justice on
their own merits as principles of fairness, that is, as principles
which stand as reasonable when seen from the point of view of
the common advantage that embraces the advantage of each. In
Rawls's words:
The natural distribution is neither just nor unjust; nor is it
unjust that men are born into society at some particular
position. These are simply natural facts. What is just and
unjust is the way that institutions deal with these facts.
Aristocratic and caste societies are unjust because they
make these contingencies the ascriptive basis for belong-

rational... to agree to less, the sensible thing... to do is to acknowledge
as the first principle of justice one requiring an equal distribution. Indeed,
this principle is so obvious that we would expect it to occur to anyone
immediately."
46. Ibid., pp. 136-42.
47. Ibid., p. 139.
48. Ibid., p. 140: "... each individual is forced to choose for every-
one." Cf. ibid., p. 148: "[the individual] voluntarily takes on the limita-
tions expressed by this interpretation of the moral point of view."


Justice


61





Moral Norms and Moral Order


ing to more or less enclosed and privileged social classes.
The basic structure of these societies incorporates the ar-
bitrariness found in nature. But there is no necessity for
men to resign themselves to these contingencies. The so-
cial system is not an unchangeable order beyond human
control but a pattern of human action. In justice as fair-
ness men agree to share one another's fate.49

One is struck with the resemblance between what Rawls has
to say about equality and Kant's idea of "reciprocal freedom."
Rawls himself speaks of the Original Position as a "procedural
interpretation of Kant's conception of autonomy and the cate-
gorical imperative."50 One imagines that Rawls means to say
that in the Original Position individuals, as free and equal ra-
tional beings, act so as to establish and support an "ethical
commonwealth" as the full expression of their freedom and
rationality, that is to say, of their autonomy. This, it would
seem, is faithful to the sense of what Kant says about moral
autonomy and reciprocal freedom.
Kant holds that freedom of choice (arbitrium liberum) is not
a sufficient condition of autonomy, although this freedom is a
necessary condition of responsibility. Autonomy requires that
free and rational beings impose upon themselves an order of
conduct, not simply adopt interests in accordance with what is
pleasant. The scoundrel, in choosing to be a scoundrel, adopts a
maxim or takes up a mode of behavior that is incompatible

49. Ibid., p. 102.
50. Ibid., p. 256. Cf. Victor Gourevitch, "Rawls on Justice," The
Review ofMetaphysics 28 (March, 1975):487: "Rawls''veil of ignorance'
is justice's familiar blindfold. To withdraw behind it is to suspend all
reference to one's own and to one's fellows' particular needs, desires,
capacities, or beliefs: to everything that sets one person apart from an-
other. The veil thus replaces the natural variety of distinct individuals
with so many anonymous, general, and hence interchangeable counters.
Since they do not know what might be to their own as against another's
advantage once the veil is lifted, it makes no sense for them to bargain
about principles of justice . They have no alternative but to 'choose'
principles impartially and on their own merits. Under the circumstances
anyone's choice is everyone's. Choosing behind the veil of ignorance is
Rawls' equivalent of universalization."


62







with membership in a rational community of equals.51 It is in
membership in such a community that the freedom of nou-
menal selves is expressed or realized fully. As Kant speaks of
what rational beings should do in opposition to purposes that
are "only subjectively valid and empirical," Rawls speaks of
what free and equal rational beings would do in ignorance of
their particular talents and advantages.

An Esquisse
Reflecting upon the theories that have just been reviewed, one
finds as a common element the rejection of the separation of
law or legal justice from morality. This separation may be seen
as part of the empirical bent of mind, which eschews questions
of value as obscure if not unanalyzable matters. One can, per-
haps, be more sure of what the law says and what the law
ordains than of what makes the law just or worthy of obedi-
ence. And one may want to say that the separation of legal fact
from moral norm is made credible by the existence of diverse
standards of morality and justice or by what appears to be the
erosion of moral consensus in a society. If there are no moral
norms that are recognized by all or most citizens, then the
search for the justification of public policy and public practice
may well be taken to be a quest for what cannot be found. If
the recognition of 'just law' implies a moral community, then
the absence of such a community would suggest the abandon-
ment of the idea of just law (richtiges Recht) and the substitu-
tion of the idea of 'valid law' (geltendes Recht). The inade-
quacy of such substitution, as well as the confusion involved
therein, is seen in this passage from H. L. A. Hart's The Con-
cept of Law:
If we narrow our point of view and think only of the
person who is called upon to obey evil rules, we may
regard it as a matter of indifference whether or not he
thinks that he is faced with a valid rule of 'law' so long as

51. Cf. Rawls, A Theory ofJustice, pp. 254-55: Rawls comments on
Henry Sidgwick's dissatisfaction with Kant's categorical imperative as the
basis for the distinction between the saint as a 'good man' and the scoun-
drel as a 'bad man'.


Justice


63





SMoral Norms and Moral Order


he sees its moral iniquity and does what morality re-
quires. ... A concept of law which allows the invalidity of
law to be distinguished from its immorality, enables us to
see the complexity and variety of these separate issues,
whereas a narrow concept of law which denies legal valid-
ity to iniquitous rules may blind us to them.52
Here is the attempt to have it both ways: to recognize that a law
may be judged iniquitous and to hold, at the same time, that
there are reasons for obeying the same law.
In the opposition to moral and legal skepticism, one must
come around, it seems, to the idea of a rule or law as a conform-
ing of human practice to natural order or natural reason. In
considering the senses in which one can speak of the lawful,
there is the question whether or not one can speak at all of a
'bad law' or 'unjust law' as a law. The problem of any gover-
nance or at least of the governance of the modern sovereign
state arises from the power to command what is fatuous or
oppressive as well as what is reasonable and beneficial. If indi-
viduals are required to do what is against their best interests and
against their dignity as persons, they are involved with obliga-
tions that do not pertain to the exercise of freedom, that is,
their freedom in society is compromised by demands and re-
straints that serve purposes other than the common promotion
of their well-being. The compromise of freedom in organized
society is analogous if not equivalent to the denial of freedom
in the 'state of nature', in which there is the unilateral exercise
of liberty in accordance with the advantage or advantages that
one individual enjoys, by whatever circumstances, over another
individual. The moral complication of regarding unfairness and
inequality as lawful is avoided simply in making a distinction
between 'what is ordered' and 'what is lawful' and in saying
with St. Augustine that "a law that is not just is not a law."
The distinction between the ordered and the lawful under-
mines, obviously, the contention that resistance to public pol-
icy is an attack upon the idea of law or upon the idea of politi-
cal society as a lawful order. In a more significant way, this


52. Hart, The Concept of Law, pp. 206-7.


64







distinction undermines the claim that any ordering is lawful or
legitimate. An ordering, as a rule for a group of individuals, is
really a pretension to what is lawful, a thrust away from the
prerogatives (and risks) of liberty toward the commitments and
guarantees of reciprocal freedom. While every ordering as pol-
icy is distinguishable from the volition of a private individual,
an ordering as such may fall short of what is lawful in failing to
set forth or accord with the commitments and guarantees of
free and equal persons. In falling short, an ordering is simply a
counterfeit of law and an "order of law" is merely a "public
quiet" under which some suffer more injustice and enjoy less
liberty than others.
Law as a way of governing or as a body of governance em-
braces both the procedural (that is, the determining of the law)
and the substantive (that is, what is determined as the law).
Law as public policy involves the intrusion of a public or gen-
eral will upon the will of the individual, even when this public
will coincides with the intention of the individual. In being
ordered to act or to forbear, the individual is confronted with
what he must do, as a member of society, as distinct from what
he may or may not do according to his own predilection or
judgment. As public policy, law must be promulgated and the
promulgating source must be recognized as the source of law as
distinct from all other sources, actual or possible. The voice of
the "strong man" or "wise man" or of a legislative body must
compete with and prevail over other voices for recognition as
the source of order and authority in a given community or
society.
It is clear, at the same time, that the way in which law is
brought forward from its source and received by the governed
has nothing to do with what the law says as a precise ordering.
The claim that what the prince says is to be obeyed (quod
placuit principi, legis habet vigorem) reveals nothing about the
adequacy of what the prince says or about reasons for obeying
the prince rather than the dictates of one's conscience.53 If one

53. Cf. St. Thomas Aquinas, Summa Theologiae First Part of the
Second Part, Q. 90, A. 1, trans. Thomas Gilby, O. P. (London: Eyre and
Spottiswoode, Ltd., 1966): "To have the quality of law in what is ...


Justice


65





Moral Norms and Moral Order


were to hold that 'promulgation' on the part of a lawgiver and
'acceptance' on the part of the governed gives being and valid-
ity to law, one would abstract from all substantive content of
what is ordered and give attention solely to the extra-moral
facts concerning the resources of power and the responses to
power. As a despot may be the source of 'good laws' and an
assembly of all citizens may be the source of 'bad laws', the
making of law does not provide a clue to the character of the
law that is made.
The making of law is a distinct kind of ordering that enters
into every body of law. The making of law is an ordering that is
concerned with ordering and is constitutive therefore of au-
thority and of the offices of authority in society. Inasmuch as
law is always governance that confronts the individual in rela-
tions of external or public life, the making of law is as much a
part of the public life of the individual as is the observance of
law. Both making and observing, with respect to law, are de-
mands upon the rationality of any individual who is capable of
independent judgment and assent and whose judgment, accord-
ingly, can be neither ignored nor anticipated. This is the point
made by Kant, in saying that a rational being as a citizen must
have "as much of a moral capacity to bind juridically" another
as the other has to bind him.54 Lawmaking becomes justified
as the full participation of citizens in their own governing and
being governed.55
It should be clear that procedural matters belong to a body
of law as part of its content. Legal procedures are means to legal
and moral ends, but means that are also ends themselves.
Among the rights of free individuals are those pertaining to

commanded the will must be ruled by some reason, and the maxim, the
prince's will has the force of law, has to be understood with that proviso,
otherwise his will would make for lawlessness rather than law."
54. Cf. Immanuel Kant, The Metaphysical Elements ofJustice, trans.
John Ladd (Indianapolis: The Bobbs-Merrill Company, Inc., 1965), pp.
78-79.
55. Ibid., p. 78. Kant's position is weakened by the distinction he
makes between active and passive citizens, the latter being those who are
not fit to vote. Kant includes, in the class of passive citizens, apprentices,
servants, and women as lacking "civic personality" (p. 79).


66







participation in the support of a just legal order. This participa-
tion takes two forms, namely, (1) direct or indirect involve-
ment in the formation of law and the establishment of author-
ity (and its agencies) and (2) direct or indirect involvement in
the review of law as established. Whether the participation is
direct or indirect does not affect the basic democratic principle
concerned, namely, that the individual in his rational assent or
dissent is the author of or consultant upon the law that he is
called upon to obey.56 This means that the individual must be
included, directly or indirectly, in every forum through which
law passes, from intention of will to enactment and possibly
repeal. Even if it were proposed that a code of law embrace
only rules that are divine in origin, it would be necessary to
contend therewith that what is revealed as just law is what
reason would have devised through a democratic process of
lawmaking and review.
The 'rights of participation' in the lawmaking process are
simply the rights through the exercise of which arises a legiti-
mate order controlling the affairs of free and equal persons. An
order that arises or persists in disregard of these rights is, ac-
cordingly, illegitimate. The legitimacy of a legal order is a moral
determination, which is separable from and independent of the
facts of power and the pretensions to authority.57 At the same
time, it is precisely to legitimacy in this moral sense that an

56. Cf. William Blackstone, Commentaries on the Laws of England, 1.
2. 2, ed. St. George Tucker (South Hackensack, N. J.: Rothman Reprints,
1969), 2:158. "In a free state, every man, who is supposed a free agent,
ought to be in some measure his own governor; and, therefore, a branch,
at least, of the legislative power should reside in the whole body of the
people."
57. There is indeed a science of law (Rechtswissenschaft) which con-
cerns itself with an existing code or codes of law and with the meaning and
scope of 'legal statements' appearing in such a code or codes. This science
abstracts from all ethical considerations and cannot, therefore, be con-
cerned in a strict sense with legitimacy as a moral matter. Cf. Radbruch,
Rechtsphilosophie, p. 209: "Diese eigentliche Rechtswissenschaft, die
systematische, dogmatische Rechtswissenschaft, kann definert werden als
die Wissenschaft vom objectiven Sinn positive Rechtsordnungen. . Sie
ist Wissenschaft vom geltenden, nicht vom richtigen Recht, vom Rechte,
das ist, nicht vom Rechte, das sein sollte."


67


Justice





Moral Norms and Moral Order


appeal would be made in any effort to oppose an existing legal
order or parts of an order as arbitrary and oppressive. It is
inherent in the very meaning of the freedom of a people that
they choose through open discussion the laws under which
public affairs are to be managed. One may think of the idea of a
legal code as arising from the idea of a general convention and
plebiscite to which a people "summon themselves" for the
purpose of instituting a just government.58
The rights of participation that are exercised in the formula-
tion of law are indeed exercised in the furtherance of other
rights, namely, "rights of access" to the benefits of an orga-
nized society. Any catalogue of rights that are legal as well as
moral is subject to criticism and rejection as incomplete and
sectarian.59 There is less likelihood of difficulty in this matter
if attention is given to kinds or categories of rights, correspond-
ing to the common needs of individuals in society. Blackstone,
in his Commentaries on the Laws of England, calls attention to
the absolute rights of personal liberty (freedom of movement
and association, freedom from imprisonment or restraint "un-
less by due course of law"), personal security (enjoyment of
life, limb, body, health, and reputation), and private property
(for use, enjoyment, and disposal of acquisitions), and to auxil-
iary rights (e.g., right of parliament, due process, petition, right
to bear arms), which support the exercise and enjoyment of
absolute rights. These categories are broad enough to stand as
the main divisions of a bill of rights of a democratic constitu-


58. Cf. Kant, The Metaphysical Elements of justice, pp. 112-13: "The
forms of the state are, as it were, only the letter (littera) of the original
legislation in civil society, and they may therefore continue as long as they
are held by ancient, long-standing custom (hence only subjectively) to be
necessary to the machinery of the constitution of the state . [The]
republican constitution is the only enduring political constitution in
which the law is autonomous and is not annexed to any particular person.
It is the ultimate end of all public Law and the only condition under
which each person receives his due preemptorily .... Every true republic
is and can be nothing else than a representative system of the people if it is
to protect the rights of its citizens in the name of the people."
59. Cf. A. C. Ewing, Second Thoughts on Moral Philosophy (London:
Routledge and Kegan Paul, Ltd., 1959), pp. 127-34.


68






tion.60 Although Blackstone speaks at times of these rights as
"inherent in every Englishman," he speaks also of these rights
as "inherent by nature in every individual."
The problem of just law is ultimately the problem of equal-
ity among individuals in demanding the fulfillment of their
purposes. The point is made in Plato's Republic that individuals
are not equal in native endowment and are not therefore natu-
rally disposed to perform the same functions or to make equal
contributions to the common good. This point may be ex-
panded into the view that talent (together with performance) is
properly the basis of inequality of claims and inequality of
benefits among individuals who are at the same time equal as
citizens. It should be clear that the argument in the Republic is
offered merely to justify diversity of function and division of
labor in a complex culture, and to propose the location of
individuals in the functions for which severally they are suited.
It is not an argument for unequal rewards in accordance with
the facts of human inequality or for the subordination of one
class of citizens to another through the authority of the
state.61
The "equal protection of the laws" to which individuals can
lay claim would seem to rest upon their status as persons and
upon their interdependence as citizens of the same organized
society. Whatever his beliefs about and confidence in his own
talents and powers, an individual has an awareness of his insuf-
ficiency to achieve through solitary effort that good which he
holds to be complete. To be an individual is to be aware at once
of the importance of one's own interests and needs and of the
hindrances involved in pursuing these interests without the sup-
port of others. In the lack of self-sufficiency no individual is
less dependent upon common effort than another individual.
This dependence in its precise nature is not affected by the
character of the contribution that the individual is able to make
to the "common effort" and "common good." Indeed, every
contribution, whatever its character, presupposes other contri-
butions as constituents of an adequate and workable order of

60. Blackstone, Commentaries on the Laws of England, 1. 1. 1-5.
61. Plato, Republic, 519E-520A.


Justice


69





Moral Norms and Moral Order


activity.62 To argue for unequal status and unequal benefit in
society on the basis of the unequal contributions that are made
to collective enterprise is to confuse the condition of individ-
uals in society with some imagined condition of singular, inde-
pendent beings making social claims in accordance with their
estimates of their own merit. The notions of function and of
the comparative merit or "weight" of functions is clearly sub-
ordinate to the primary intention or thrust of common effort
to provide goods and services that can only be obtained
through common effort.
The recognition of the rights of citizens and the equal pro-
tection of the laws involved therein means simply that social
resources must be extended to all persons as social equals. This
does not mean, of course, that all individuals are likely to make
use or good use of the social resources available to them. One
has in mind that the claims of persons upon social resources
cannot be treated such that the law becomes an instrument of
one person's subjection to another. In the determination of the
rational and legal limit of the exercise of any right, discussion
would set out from each individual's recognition of the injury
or deprivation that he would not wish to endure himself
through the free exercise of the powers of others. From this
recognition there can emerge and operate in every situation of
public judgment a working understanding of the opportunities
of freedom and of the restraints upon freedom that individuals,
through the law, must impose upon themselves.
While the matter of equality under law is of course broader
than the problem of the distribution of external goods, it is
clear that many of the most difficult issues of social order stem
from the dissatisfaction of citizens with the shares of goods
that they receive vis-a-vis the shares received by others. There is

62. Cf. G. W. F. Hegel, Philosophy of Right, pp. 109-10: ". . in this
identity of the universal will with the particular will, right and duty
coalesce, and by being in the ethical order a man has rights in so far as he
has duties, and duties in so far as he has rights. In the sphere of abstract
right, I have the right and another has the corresponding duty. In the
moral sphere, the right of my private judgment and will, as well as of my
happiness, has not, but only ought to have, coalesced with duties and
become objective."


70







the conviction in many places that inequality in distribution, in
accordance with unequal claims such as merit and inheritance,
has a prima facie credibility and that what runs counter to good
reason is the proposal of equality of distribution. The tables
can be reversed, however: it may be held that equality is the
credible state of affairs, particularly in a democratic society,
and that what runs counter to our sense of fairness is inequality
in distribution. The question that must be answered, in this
reversal of the tables, is not why citizens should have the same
share of goods according to need but rather why some individ-
uals should have more (or less) than others without regard to
need.
It is certainly reasonable for an individual to demand suffi-
cient goods for physical comfort, for the sake of the cultivation
of his talents, and for meeting the requirements of leisure and
sociability. The goods not acquired or produced by solitary
effort must be obtained by one individual through labors with
others, through donations, or through the exchange of one
thing for another. Aside from the initial advantage of acquisi-
tion or seizure occupation ) and the productive exertions of
singular effort, the differences in possessions would seem to
arise from the relative advantage (or disadvantage) of individ-
uals in the exchange of goods. Fairness of exchange is a primary
moral concern inasmuch as the end of exchange is presumably,
for all parties, the acquisition and use of what is necessary for
living well.
Fairness of exchange calls for a body of legislation that
would rule out economic practices having the effects of depriv-
ing an individual of a "fair share" of goods and of treating him
as a "means merely" to the advantage and comfort of others. In
terms of human need, as Aristotle observed long ago, an indi-
vidual can have too little of what is desirable and too much of
what is harmful (and, accordingly, too much of what is desir-
able and too little of what is harmful). What is sought, in moral
terms, is a mean between extremes in having and not having,
this mean being a human condition that is entirely in keeping
with the judgment of common sense that an individual should
have what he needs and what he can make use of without waste
and without depriving others.


Justice


71










5 Power
and Punishment










Introduction
Hobbes says in the Leviathan that in man's "natural condition"
every individual "has a right to every thing; even to one an-
other's body."' We know, of course, that this cannot be true or
at least that this cannot be accepted as it stands. If conditions
were such that each individual had to depend for his safety
entirely upon his own resources, it would not be true that an
individual would have a "right to every thing." The necessity of
defending oneself can involve only the right to one's life and
safety. And the right to one's life can have no meaning if there
is a countervailing right against one's life by virtue of another
individual's right to everything. A human situation or "natural
condition" without established laws and restraints would in-
volve the same "moral" demands of regard for the life of the
individual as would a situation with established laws and effec-
tive sanctions of peace and order. Contrary to what Hobbes
holds, the laws of an established order do not "set in place" the
distinction between just and unjust that is the sure alternative
to the condition of "the war of all against all."2 Justice presum-
ably is as ancient as the moral conscience of man. What Hobbes
1. Thomas Hobbes, Leviathan, ed. Michael Oakeshott (Oxford: Basil
Blackwell, 1960), chap. 14, p. 85.
2. Ibid., chap. 15.
72





Power and Punishment


does makes clear, in spite of the general confusion of his posi-
tion, is that there is an inalienable and indefeasible right to life
and safety which is morally anterior to the guarantees of any
social agreement or compact.
If all lawgiving may be thought to find its moral justification
in the public beneficence that supports the best life of the
individual, then the part of law that is concerned with offenses
or injuries must be informed with the same beneficence. Public
order is simply the order of law, which free individuals impose
upon themselves in order to obtain and to hold secure the
things that pertain to their well-being. There is a common re-
sponsibility for public order, under which responsibility the
individual, in not being indifferent to an invasion of his own
rights, cannot be indifferent to the invasions of the rights of
others. This suggests two principles of the remedy of wrong-
doing, namely, (1) that the remedy of wrongdoing must con-
form to the preservation of the rights of all of the persons of the
community, those who offend as well as those offended
against, and (2) that the devices of remedy must be such as
make restitution to those offended against with the least neces-
sary privation of the freedom and dignity of those who offend.
J. S. Mill, in Utilitarianism, speaks of "the sentiment of jus-
tice" in these words:
... the two essential ingredients in the sentiment of jus-
tice are, the desire to punish a person who has done harm,
and the knowledge or belief that there is some definite
individual or individuals to whom harm has been done.
... The sentiment of justice, in that one of its elements
which consists of the desire to punish, is thus, I conceive,
the natural feeling of retaliation or vengeance, rendered
by intellect and sympathy applicable to those injuries,
that is, to those hurts which wound us through, or in
common with, society at large. This sentiment, in itself,
has nothing moral in it; what is moral is the exclusive
subordination of it to the social sympathies, so as to wait
on and obey their call.3
3. J. S. Mill, Utilitarianism, chap. 5, in The Utilitarians (Garden City:
Dolphin Books, 1961), pp. 456-57.


73





Moral Norms and Moral Order


Whether or not one agrees with Mill concerning the existence of
a "natural feeling of retaliation," it would doubtless be al-
lowed, in conjunction with the recognition of the rights of
persons, that there is a sense or sentiment of justice that holds
an offender accountable for what he does.4 The moral question
concerns, then, the nature of the remedy of wrongdoing or
injury rather than the necessity of remedy.
It has been accepted, in modern times at least, that remedy
or punishment, particularly as the satisfaction of major offen-
ses, is an affair of the people acting as a whole-that is, an affair
of the state. Remedy or punishment must, accordingly, take a
form or forms different from and extending beyond the direct
compensation of the injured party. This view reflects the recog-
nition that certain wrongs are indeed grave or heinous and that
it is necessary to make a distinction, as in Anglo-Saxon law,
between botless and emendable offenses.5 In the very notion
of a felony there is the idea of punishment as the forfeiture of
status (as well as property) through imprisonment, torture,
banishment, or death.6 Inasmuch as such penalties do not in-
volve restitution to the injured party or parties, the arguments
in support or justification of these penalties must be reviewed

4. Cf. ibid., p. 455: "Justice implies something which is not only the
right to do, and wrong not to do, but which some individual person can
claim from us as his moral right." In this connection, Aristotle has distin-
guished three kinds of injury, namely, what is unintentional and unavoid-
able (&rtXWria), what is unintentional and avoidable (&adpr)pa), and
what is intentional (6iKrp.a). Nicomachean Ethics, 5. 8. 6.
5. Cf. T. F. T. Plucknett, A Concise History of the Common Law, 5th
ed. (Boston: Little, Brown and Company, 1956), p. 423: ". .. Anglo-
Saxon proceedings consequent upon a murder, maiming, theft or serious
outrage had little to do with the Crown and were conducted entirely by
the party aggrieved; they might result in a punishment, but their principal
element was undoubtedly compensation or restitution. Their main char-
acteristic was thus analogous to that of a modern action in tort. Later on,
the Crown took a much larger part in such proceedings, and so it is quite
plausible to argue that the original stem was mainly tort, and that crime
branched off from it."
6. For a brief history of criminal law thought, cf. Helen Silving, Crimi-
nal Justice (Rio Piedras, Puerto Rico: University of Puerto Rico Press,
1971), 1:69-144.


74





Power and Punishment


in a continuing discussion concerning the rights and duties of
individuals in society.
Punishment is either nonrestitutive or restitutive.7 Punish-
ment as nonrestitutive has been justified chiefly in three ways,
namely, (1) as the retaliation of suffering upon the wrongdoer;
(2) as a means of the moral instruction or correction of the
offender; and (3) as a means of deterring the offender and
others from further wrongdoing. In the first of these, attention
is given to what an individual deserves to suffer for a voluntary
act that is wrong or wicked; in the second, the concern is
chiefly pedagogic or corrective; in the third, the attention is
upon the protection of the members of society at large through
the prevention of wrongdoing. It is clear, of course, that these
alternative views of punishment are not mutually exclusive and
that the punishment of offenders may be justified on more
than one ground. It is also clear that there may be confusion in
the moralist's or jurist's mind as to precisely which view of
punishment he is espousing and as to the bearing of his position
on the remedy of precise offenses against precise individuals or
groups of individuals.8

Punishment as Retaliation or Countersuffering
The moral justification of retaliation rests on the presumed
duty to punish those who transgress in their actions the laws of
their community. It is held, of course, that the wrongdoer is
aware of the moral demands upon him as a citizen and that he
acts deliberately in violation of these demands. The wrongdoer
has a guilty mind (mens rea). Punishment accordingly is a bal-
ancing, a making equal (talio, retributio), a compelling of the
individual to suffer in ratio to the injury that he has inflicted
upon another. A civil and humane order is one in which every
offense against human life must be satisfied; no wrongdoing
can be condoned. And the individual must directly atone for

7. The Latin poena has the sense of compensation as well as vengeance
and suffering.
8. On the distinction between aim and justification of punishment, cf.
Alf Ross, On Guilt, Responsibility and Punishment (Berkeley and Los
Angeles: University of California Press, 1975), pp. 60-66.


75





Moral Norms and Moral Order


his action, that is, he must take upon himself his wrongdoing
simply because it is his wrongdoing (quia peccatum est). In the
distinctive statement of this position, embracing a defense of
the death penalty, Kant speaks of retribution as what is en-
tailed in the committing of a "punishable action" by a member
of "the civil union."9 To ignore punishment, or to permit an
individual to escape punishment, would be to contribute to the
dissolution of civil society and to the return to the state of
nature or violence.10 The justification of retaliation rests in the
preservation of civil society as a moral order, through rendering
to each offender what is his due.
There is unclarity as to what is meant in holding that the
wrongdoer must "pay for his crime" through suffering in like
measure what he as inflicted upon another. There is the diffi-
culty of knowing in what way the suffering of the offender is
equal to that of the victim. The punishment conventionally
meted out, such as incarceration in a case of mayhem or violent
assault, is clearly not equal to or even analogous to the suffering
or deprivation of the injured person. Even if one thinks of
requiring literally "a limb for a limb," the suffering of the
wrongdoer would be different from the suffering of the victim,
as the suffering of the guilty is different from the suffering of
the innocent. And if perchance, in atoning for an offense, one
individual could suffer precisely as another has suffered, no
principle of remedy of wrongdoing would be established
thereby. There would remain the immediate and pressing need
to make restitution to the individual whose loss has upset in
some way the balance of his life. If the preservation of civil
society as a moral order requires public reproof for wrong-
doing, this reproof can take a form or forms that direct the
atoning efforts of the offender toward the compensation of the
victim.1
9. Immanuel Kant, The Metaphysical Elements ofJustice, trans. John
Ladd (Indianapolis: The Bobbs-Merrill Company, Inc., 1965), p. 105. Cf.
ibid., pp. 101-6.
10. Cf. ibid., p. 100: "If legal justice perishes, then it is no longer
worth while for men to remain alive on this earth."
11. One does not ignore the necessity of restraining, in one way or
another, the intractable or incorrigible individual. Wrongfulness, as delib-


76





Power and Punishment


Punishment as Correction
Not unrelated to the justification of punishment as counter-
suffering is the view that recognizes the bearing of punishment
upon the moral instruction and correction of offenders. This
view draws support from any conception of law and justice that
reflects the interest, as expressed by Aristotle, "to make others
better through discipline" (6t' e~rtneXeta PeXTlovoc roeiv).12
This interest carries with it the necessity of devoting care to
others in reproving and correcting as well as guiding.13 This
raises the question of the bearing of correction, in whatever
form, upon what may be called the "moral improvement" of
wrongdoers. Presumably, correction as a device of moral im-
provement would be effective in arousing or sharpening an
offender's sense of fairness in human relationships and in bring-
ing his attention to actions and patterns of actions that are
destructive of the good of one or more individuals. This would
require not only that the offender recognize the wrong action
(with its consequences) as his action but also that the recogni-
tion be accompanied with or followed by a feeling of regret or
grief (contritio).
Insofar as the wrongdoer's awareness of the character of his
action involves regret or remorse, there is clearly no need of
punishment, if the justification of punishment is its bearing
upon the moral enlightenment or moral regeneration of the
offender. Those who are committed to punishment for the sake
of moral correction and improvement are faced, then, with the
problem of distinguishing the contrite individual from the un-
contrite, in order that public resources not be expended upon
the application of correctional procedures where they are not


erate and voluntary behavior, must not however be confused with intrac-
tability or depravity. It is only voluntary action which involves an individ-
ual with demands for remedy of injury to others.
12. Aristotle, Nicomachean Ethics, 10. 9. 17.
13. Ibid., 10. 9. 9.: ". .. we shall need laws to regulate the discipline of
adults ... and in fact the whole life of the people generally; for the many
are more amenable to compulsion and punishment than to reason and to
moral ideals." Trans. H. Rackham (Cambridge Mass.: Harvard University
Press, 1934).


77





Moral Norms and Moral Order


needed. And there arises the further question of the efficacy of
correctional measures upon the uncontrite individual.
It would be argued, in support of public correction, that
sensitivity to and regret over wrongdoing can be provoked
through the disgrace, inconvenience, or severity of punish-
ment; and that the individual offender is clearly benefited, and
society as well, insofar as such regret over his action brings him
to a resolve to eschew thereafter all wrongdoing.
Doubtless many individuals have been brought to regret
their actions through, if not entirely because of, the disgrace,
inconvenience, or severity of punishment. The important ques-
tion for public policy and practice is whether such efficacy of
punishment can be determined in any way that would con-
stitute a justification of public correction, that is, whether
moral sensititivy and contrition, which are matters of con-
sciousness or inwardness, can be monitored through the rela-
tions between penal officers and offenders. And if it is believed
that the moral improvement of wrongdoers can be overseen by
public officials, it would seem that the character and duration
of correction should accord with the offender's need for moral
improvement rather than with the character and enormity of
the offense. It is not unlikely that one individual's regret over a
frightful deed would be morally rehabilitative in a more thor-
ough way and in a briefer time than the regret or grief of
another individual whose wrongdoing is less frightful. This,
accordingly, would require the judgment of moralists or moral
theologians rather than penal functionaries and would require
facilities of rehabilitation other than those common in penal
practice.

Punishment as Deterrence
Related to the notion of correction is the view that seeks to
justify punishment in terms of its efficacy or presumed efficacy
in deterring individuals from wrongdoing. The notion of pun-
ishment as a deterrent from destructive or otherwise undesir-
able behavior accords entirely with any moral position that
regards the promotion of the safety of every member of society
to be a matter of public forethought as well as afterthought and


78





Power and Punishment


remedy.14 The deterrent force of punishment is the operation
of the dread of punishment against any impulse or thrust to
wrongdoing. Bentham expresses this view of punishment, as
one among many "uses" of punishment, in these words:

The immediate principal end of punishment is to control
action. This action is either that of the offender or of
others: that of the offender it controls by its influence,
either in his will, in which case it is said to operate in the
way of reformation; or on his physical power, in which
case it is said to operate by disablement: that of others it
can influence no otherwise than by its influence over their
wills; in which case it is said to operate by way of ex-
ample.15

And in another passage:

A punishment may be said to be calculated to answer the
purpose of a moral lesson when, by reason of the igno-
miny it stamps upon the offense, it is calculated to inspire
the public with sentiments of aversion toward those perni-
cious habits and dispositions with which the offense ap-
pears to be connected.16

14. Cf. Jeremy Bentham, An Introduction to the Principles ofMorals
and Legislation (New York: Hafner Publishing Company, 1948), p. 178:
"... [the legislator's] first, and most extensive, and eligible object, is to
prevent, in so far as it is possible, and worth while, all sorts of offenses
whatsoever; in other words, so to manage, that no offense whatsoever
may be committed."
15. Ibid., p. 170n.
16. Cf. Cesare Beccaria, On Crimes and Punishments, trans. Henry
Paolucci (Indianapolis: The Bobbs-Merrill Company, Inc., 1963), p. 42:
"The purpose [of punishment] can only be to prevent the criminal from
inflicting new injuries on ... citizens and to deter others from similar
acts." See also Jeremy Bentham, Principles of Penal Law, in The Works of
Jeremy Bentham, ed. John Bowring (New York: Russell and Russell, Inc.,
1962), 1:396: "General prevention ought to be the chief end of punish-
ment, as it is its justification . when we consider that an unpunished
crime leaves the path of crime open, not only to the same delinquent but
also to all those who have the same motives and opportunities for entering
upon it, we perceive that the punishment inflicted on the individual be-
comes a source of security to all."


79





Moral Norms and Moral Order


The idea of deterrence brings to mind again Aristotle's con-
ception of the broad moral function of the laws, namely, that
good laws support the formation of traits of character that, as
constituents of the life in accordance with excellence, are bene-
ficial to the individual and to the community as a whole.17
Viewed in this way, one may say that every good law deters an
individual from foolish and often harmful behavior insofar as
the individual, by virtue of the law's moral appeal, is disposed
to act as the law requires. The deterrence of law is positive
where the law's intrinsic moral appeal guides the individual to
what is beneficial and away from what is harmful in action.
Where the disposition to avoid wrongdoing involves the dread
of punishment or public opprobrium, the deterrence of the law
is negative or punitive. The distinction between the positive
and negative deterrence of law is difficult to draw, inasmuch as
all laws as public rules are attended with sanctions and penal-
ties. There is a significant difference, nevertheless, between
what the individual under legal governance is prompted to do
or not to do and what he is afraid to do or not to do.
Concerning the negative deterrence of the laws through the
fear or dread of punishment, difficulties arise with (1) the con-
sideration of the presumed effectiveness of punishment, in idea
or in practice, in deterring individuals from wrongdoing and
with (2) the consideration of the probable dangers to which
deterrence, as public policy, exposes all of the members of
society. On the first matter, it is recognized that the fear or
dread of punishment may deter from offense without the ac-
tual inflicting of penalty or punishment upon any individual. It
is conceivable that the mere establishment of penalties for of-
fenses, together with the necessary sanctions of enforcement,
would be sufficient in a given community to deter all of its
members from injuring one another. If there existed a com-

17. Cf. Aristotle, Nicomachean Ethics, 10. 9. 8: "And it is difficult to
obtain a right education in virtue from youth up without being brought
up under right laws; for to live temperately and hardily is not pleasant to
most men, especially when young; hence the nurture and exercises of the
young should be regulated by law, since temperance and hardiness will
not be painful when they have become habitual."


80





Power and Punishment


munity without wrongdoing, one might dare to claim that this
state of affairs obtained as a direct consequence of the "sen-
timents of aversion" aroused by the knowledge of the penalties
to be imposed upon offenders. But there would be no way of
supporting such a claim.
Whatever the possible deterrent effect of the fear and dread
of punishment (whether or not actual punishment is carried
out), one can always think of other deterrents, including the
abhorrence of what is wrongful as such, which may be respon-
sible for an individual's refraining from abuses of one sort or
another. One can allow that the fear or dread of punishment
does indeed deter many individuals from committing offenses,
without allowing that such evidence constitutes the justifi-
cation or vindication of punishment. We know, of course, that
impressive numbers of individuals are not deterred from wrong-
doing, even from committing those offenses which are punish-
able by severe or extreme measures. Apparently, with many
individuals, the impulse to misconduct lies beyond the reach of
the threat of retribution, as with other individuals the impulse
to proper conduct asserts itself without the additional spur of
public sanctions. It can be said, therefore, that the absence of
"deterring measures" can be entertained without the thought
of subverting moral restraint or encouraging lawlessness in a
broad way.
We must say something next about the difficulty that lies in
the danger to which a policy of deterrence exposes the mem-
bers of a society at the same time that such a policy is advanced
as beneficial to the community as a whole. This danger is con-
nected with deterrence as involving behavior in the future
rather than in the past.18 Under the idea of deterrence, a par-
ticular punishment can be made to bear an element that is
beyond what would be an accounting of the wrongdoer for
what be has done.19 This point would be obviated or weakened
18. Cf. Hugo Adam Bedau, "A World Without Punishment? ", inPun-
ishment and Human Rights, ed. Milton Goldinger (Cambridge, Mass.:
Schenkman Publishing Company, 1974), p. 159.
19. Cf. John Locke, The Second Treatise of Civil Government, ed.
J. W. Gough (Oxford: Basil Blackwell, 1948), chap. 2, p. 8: "Every trans-
gression may be punished to that degree and with so much severity, as


81





Moral Norms and Moral Order


by the contention that what is primary in deterrence is the fear
or dread of punishment and not the actual carrying out of any
precise penalty. But those who think in terms of deterrence
would not deny that a determinate punishment is something
that could be carried out and that the carrying out of a punish-
ment, if only rarely, would contribute to the dread that pre-
sumably deters most individuals from wrongdoing. The point is
that a punishment, as something to be imposed upon a particu-
lar offender, may as a deterrent go beyond what is appropriate
to the offense. And, by the same token, what is believed to
deter from wrongdoing may be extended as punishment to
persons who are not offenders.
In any combining of punishment and deterrence in public
policy, there is the chance that what is demanded as punish-
ment will reflect a concern with the prevention of wrongdoing
that obscures a concern with a particular wrongdoer and his
offense. If, as Bentham says, the "most eligible object" of the
legislator in establishing punishments is to prevent "all sorts of
offenses whatsoever,"20 it may be believed that severe and
arbitrary measures are justified as appropriate to this end.21
There may be the effort to "make an example" of the offender
or of any person offered as an offender, an effort which in
claiming to serve the interests of the community may well
endanger the freedom of the individual. This point is made by
Kant in his rejection of any view of punishment that ignores the
rights of the offender, that is to say, any view that treats the
wrongdoer as a means merely. In Kant's words:
Judicial punishment can never be used merely as a means
to promote some other good for the criminal himself or
for society, but instead it must in all cases be imposed on
him only on the ground that he has committed a crime;
will suffice to make it an ill bargain to the offender, give him cause to
repent, and terrify others from doing the like."
20. Cf. Bentham, An Introduction to the Principles of Morals and
Legislation, p. 178.
21. Cesare Beccaria is careful to declare that only those punishments
should be chosen which "will make the strongest and most lasting impres-
sion on the minds of men, and inflict the least torment on the body of the
criminal." On Crimes and Punishments, p. 42.


82





Power and Punishment


for a human being can never be manipulated merely as a
means to the purposes of someone else. . His innate
personality [that is, his right as a person] protects him
against such treatment. He must first be found to be de-
serving of punishment before any consideration be given
to the utility of this punishment for himself or for his
fellow citizens.22

What is important is the distinction between what an individ-
ual in fact has done as an offense and what this individual or
some other person may do in the future. It is clear that there
can be deterrence without punishment. There are apparently
many ways through which individuals can be turned away or
prevented from committing offenses against others.23 Al-
though punishment or the dread of punishment may deter
from wrongdoing, possible or probable deterrence can never be
offered asjustification for punishment as public policy. Insofar
as an individual is responsible for what he has done and for the
injurious consequences deriving therefrom, there is sufficient
reason for punishing that individual, that is, for requiring him
to answer in some way for his action. To require anything of an
offender for any other reason would be to use him "as a means
merely," to use him in a way which is not compatible with his
status and rights as a person. At the same time, in this sort of
thinking the door is opened to other ways in which the wrong-
doer or any other individual can be used as a means merely to
some end or ends projected by those who make laws.

Punishment as Restitution or Restoration
In the Nicomachean Ethics, Aristotle speaks of corrective jus-
tice (rd 86op0CoruTdv) as that type of justice which applies to

22. Kant, The Metaphysical Elements of justice, p. 100. Cf. Imman-
uel Kant, The Critique of Practical Reason, trans. Lewis White Beck (In-
dianapolis: The Bobbs-Merrill Company, Inc., 1956), pp. 39-40.
23. With respect to deterrence and prevention, it is important to note
that deterrence involves a reason or reasons for desisting from wrongdoing
whereas prevention is the explicit hindering of an individual from acting.
On the distinction between deterrence and the prevention of crime, cf.
Bedau, "A World Without Punishment? ", p. 156.


83





Moral Norms and Moral Order


private transactions, both voluntary and involuntary, and
which seeks to restore what has been lost by a victim of wrong-
doing.24 The principle that obtains here is simply that of arith-
metical equality, which abstracts from the merit or status of
the individuals concerned and "looks only at the nature of the
damage, treating the parties as equal." Corrective justice recti-
fies the imbalance introduced by wrongdoing and thus restores
the prior mean (for both parties) between gain and loss. In
involuntary transactions, which do not involve contract or
agreement-such as theft or murder-the mean between gain
and loss is restored "in a sense," that is, not strictly as in volun-
tary transactions but virtually or in principle.
Aristotle's idea of corrective or remedial justice provides a
basis of determining what a wrongdoer owes to those whom he
has injured. Aristotle is aware, of course, that corrective justice
cannot be viewed as the whole of a society's defense of its
members. Punishment cannot carry the full weight of the need
"to mould aright the character of any and every person." There
is, then, a significant difference between punishment and social
protection, a difference often ignored by those who think of
punishment primarily as the instrument of reform or deter-
rence.25
The interest in punishment as restitution has a certain con-
nection with the concern to make punishment both more pre-
cise and more humane, a concern which in modern times is
manifest especially in the writing of Cesare Beccaria. Beccaria
holds the view that the "true measure of crime is-namely, the
harm done to society."26 This includes harm against society
itself, against the life, goods, or honor of private citizens, and
against public morality.27 Beccaria argues that punishment
should be the least necessary, should be proportionate to the
crime, and should be the least injurious to the offender. All

24. Aristotle, Nicomachean Ethics, 5. 2. 12-13, 5. 4. 3-6, 5. 5. 1-2.
25. Cf. Helen Silving, 'Rule of Law' in Criminal Justice," in Essays
in Criminal Science, ed. Gerhard O. Mueller (South Hackensack, N. J.:
F. B. Rothman, 1961), pp. 98ff.
26. Beccaria, On Crimes and Punishments, p. 64.
27. Ibid., p. 66.


84





Power and Punishment


other punishment is useless and tyrannical. Whether in support-
ing temporary servitude (as a punishment for theft) or pro-
tracted servitude (as a substitute for the death penalty), Bec-
caria is concerned that punishment's "effect on the human
spirit," that is, the effect of deterring from wrongdoing, shall
be in keeping with what is reasonable, just, and humane. There
is confusion, of course, in tying what is thought of as just and
humane punishment to what is thought of as effective in deter-
ring from harmful action. Beccaria cannot have it both ways. If
punishment is to be just and humane, this can be achieved
without concern about deterrence; if punishment is to deter,
this can be achieved or attempted without direct concern with
what is just and humane. Beccaria appears to recognize this in
speaking about harmful action that does not involve a "guilty
mind," namely, innocent bankruptcy and light fault, in which
there is concern only with restitution.28
Bentham, who recognized a debt to Beccaria, observed that
an act cannot be considered detrimental to a community if it is
not "detrimental to some one or more of the individuals that
comprise it." Offense or wrongdoing is, in its very character as
an offense, a detriment to individuals, whether as distinguish-
able persons or as "an unassignable indefinite multitude."29
Bentham's attention to wrongdoing as detriment to the individ-
ual is, of course, compatible with the idea of punishment as
restitution to the individual. And inasmuch as Bentham speaks
of all punishment as "mischief" and in itself evil, it can be
argued along Bentham's lines that the "mischief" of punish-
ment could be kept at a minimum through "penalties" of resti-
tution or reparation. Bentham did not ignore restitution but
regarded it as a subordinate end of punishment, as applicable
only to private offenses, that is, "offenses against assignable
individuals"30 and inferior to the control, through example, of
the wills of the members of society at large.31 We have spoken

28. Ibid., p. 77, including note.
29. Bentham, An Introduction to the Principles ofMorals and Legisla-
tion, p. 207.
30. Ibid., p. 302-3.
31. Ibid., p. 170n.


85





Moral Norms and Moral Order


of the difficulties involved in Bentham's idea of deterrence. It is
sufficient to say here that the interest of Beccaria and Ben-
tham, in making punishment more precise and more humane,
would seem to move in the direction of demanding of wrong-
doers only what is in restitution of injuries that they have
caused.
The idea of punishment as restitution is the idea of retribu-
tion without "countersuffering," for punishment is without
injury to the offender for the act of wrongdoing itself. The
notion of restitution restitution ) was given a classic statement
by St. Thomas Aquinas, in terms applicable to the modern as
well as the medieval world. St. Thomas thinks of restitution as
an act of commutative justice, an act whose purpose is "to
remove the loss from someone from whom a thing has been
unjustly taken."32 The primary concern is with the well-being
of the injured party and with the offender's restoration of what
has been lost through his wrongdoing, although St. Thomas
does allow that in some cases an offense cannot be counter-
balanced simply by restitution (major est actio quam essetpas-
sio si sibi sola res illa auferretur33 ).
For St. Thomas, as for Aristotle, the injuries that are covered
by commutative justice involve transactions or exchanges
(commutationes) that are both voluntary (with consent) and
involuntary (without consent). Under these headings fall all
injuries of individuals with respect to their property, their per-
sons (life, health, dignity), and their work. In each case, the
concern of justice must be to compensate the one who is de-

32. St. Thomas Aquinas, Summa Theologiae, Second Part of the Sec-
ond Part, Q. 62, A. 6, trans. Thomas Gilby, O. P. (London: Eyre and
Spottiswoode, Ltd., 1975).
33. Ibid., Q. 61, A. 4. Cf. ibid., Q62, A. 3: "Two consequences follow
when another's property is unjustly taken. One is the displacement of the
balance respecting the property;. . The other is the fault of injustice, and
this may not amount to upsetting the objective balance of things, as when
someone intends to inflict violence but does not succeed .... As for the
second, the remedy is applied by punishment, the imposition of which is
for a judge." This 'second remedy' is retaliation or 'countersuffering'
(contrapassum). For St. Thomas, commutative justice is the larger thing,
of which restitution is a part.


86