the coarse exigencies of courts of law, which are sometimes obliged to
be content with very uncertain presumptions, on account of the greater
evils which would often arise from any attempt on their part to cut
finer. But even courts of law are not able to adhere consistently to
the maxim, for they allow voluntary engagements to be set aside on the
ground of fraud, and sometimes on that of mere mistake or
misinformation.

  Again, when the legitimacy of inflicting punishment is admitted, how
many conflicting conceptions of justice come to light in discussing
the proper apportionment of punishments to offences. No rule on the
subject recommends itself so strongly to the primitive and spontaneous
sentiment of justice, as the bex talionis, an eye for an eye and a
tooth for a tooth. Though this principle of the Jewish and of the
Mahometan law has been generally abandoned in Europe as a practical
maxim, there is, I suspect, in most minds, a secret hankering after
it; and when retribution accidentally falls on an offender in that
precise shape, the general feeling of satisfaction evinced bears
witness how natural is the sentiment to which this repayment in kind
is acceptable. With many, the test of justice in penal infliction is
that the punishment should be proportioned to the offence; meaning
that it should be exactly measured by the moral guilt of the culprit
(whatever be their standard for measuring moral guilt): the
consideration, what amount of punishment is necessary to deter from
the offence, having nothing to do with the question of justice, in
their estimation: while there are others to whom that consideration is
all in all; who maintain that it is not just, at least for man, to
inflict on a fellow creature, whatever may be his offences, any amount
of suffering beyond the least that will suffice to prevent him from
repeating, and others from imitating, his misconduct.

  To take another example from a subject already once referred to.
In a co-operative industrial association, is it just or not that
talent or skill should give a title to superior remuneration? On the
negative side of the question it is argued, that whoever does the best
he can, deserves equally well, and ought not in justice to be put in a
position of inferiority for no fault of his own; that superior
abilities have already advantages more than enough, in the
admiration they excite, the personal influence they command, and the
internal sources of satisfaction attending them, without adding to
these a superior share of the world's goods; and that society is bound
in justice rather to make compensation to the less favoured, for
this unmerited inequality of advantages, than to aggravate it. On
the contrary side it is contended, that society receives more from the
more efficient labourer; that his services being more useful,
society owes him a larger return for them; that a greater share of the
joint result is actually his work, and not to allow his claim to it is
a kind of robbery; that if he is only to receive as much as others, he
can only be justly required to produce as much, and to give a
smaller amount of time and exertion, proportioned to his superior
efficiency. Who shall decide between these appeals to conflicting
principles of justice? justice has in this case two sides to it, which
it is impossible to bring into harmony, and the two disputants have
chosen opposite sides; the one looks to what it is just that the
individual should receive, the other to what it is just that the
community should give. Each, from his own point of view, is
unanswerable; and any choice between them, on grounds of justice, must
be perfectly arbitrary. Social utility alone can decide the
preference.

  How many, again, and how irreconcilable, are the standards of
justice to which reference is made in discussing the repartition of
taxation. One opinion is, that payment to the State should be in
numerical proportion to pecuniary means. Others think that justice
dictates what they term graduated taxation; taking a higher percentage
from those who have more to spare. In point of natural justice a
strong case might be made for disregarding means altogether, and
taking the same absolute sum (whenever it could be got) from every
one: as the subscribers to a mess, or to a club, all pay the same
sum for the same privileges, whether they can all equally afford it or
not. Since the protection (it might be said) of law and government
is afforded to, and is equally required by all, there is no
injustice in making all buy it at the same price. It is reckoned
justice, not injustice, that a dealer should charge to all customers
the same price for the same article, not a price varying according
to their means of payment. This doctrine, as applied to taxation,
finds no advocates, because it conflicts so strongly with man's
feelings of humanity and of social expediency; but the principle of
justice which it invokes is as true and as binding as those which
can be appealed to against it. Accordingly it exerts a tacit influence
on the line of defence employed for other modes of assessing taxation.
People feel obliged to argue that the State does more for the rich
than for the poor, as a justification for its taking more from them:
though this is in reality not true, for the rich would be far better
able to protect themselves, in the absence of law or government,
than the poor, and indeed would probably be successful in converting
the poor into their slaves. Others, again, so far defer to the same
conception of justice, as to maintain that all should pay an equal
capitation tax for the protection of their persons (these being of
equal value to all), and an unequal tax for the protection of their
property, which is unequal. To this others reply, that the all of
one man is as valuable to him as the all of another. From these
confusions there is no other mode of extrication than the utilitarian.

  Is, then the difference between the just and the Expedient a
merely imaginary distinction? Have mankind been under a delusion in
thinking that justice is a more sacred thing than policy, and that the
latter ought only to be listened to after the former has been
satisfied? By no means. The exposition we have given of the nature and
origin of the sentiment, recognises a real distinction; and no one