Commutative justice

“ We may divide the species of justice into individual or commutative and social justice.
Commutative justice regards the relations between man and man in their private and individual capacity. It supposes a perfect distinction of rights between them, and prescribes that these should 'be duly observed and respected. It exists between physical and moral persons alike, or between a physical and a moral person, provided that their rights are perfectly distinct from each other. ”

“ Thus, corrective justice is elicited by commutative justice, for a punishment is inflicted by a judge in order that there may be equality between the satisfaction made by the evil-doer and the debt owed to another on account of the offense. It aims at redressing an unfairness by taking away so much from the offender and adding so much to the party offended, that both will stand in the same position as before. If the person punished accepts the penalty in the same spirit, he also practises commutative justice. ”

“ That the distinction of particular justice into distributive and commutative is specific appears from the fact that the main characteristics of justice (viz., debt owed another and equality between payment and debt) are found in each of these kinds of justice in a way proper to itself. There is a debt in commutative justice when a thing is owed another because he has an individual right to it and it is already under his dominion ”

“ In the first place there is the order of one part to another, to which corresponds the order of one private individual to another. This order is directed by commutative justice, which is concerned about the mutual dealings between two persons. ”

“ How and what Acquisition is subjectively conditioned by the Principle of a Public Court. Natural Right, understood simply as that Right which is not statutory, and which is knowable purely a priori, by every man's Reason, will include Distributive Justice as well as Commutative Justice. It is manifest that the latter as constituting the Justice that is valid between Persons in their reciprocal relations of intercourse with one another, must belong to Natural Right. ”

“ It would seem that there is not a different matter for both kinds of justice. Diversity of matter causes diversity of virtue, as in the case of fortitude and temperance. Therefore, if distributive and commutative justice have different matters, it would seem that they are not comprised under the same virtue, viz. ”

“ When a man who has served the community is paid for his services, this is to be referred to commutative, not distributive, justice. Because distributive justice considers the equality, not between the thing received and the thing done, but between the thing received by one person and the thing received by another according to the respective conditions of those persons. ”

“ For though the law remains the same, whether the man knows it or knows it not, yet for himself it is not the same. Where it is known, where the inseparableness, the unity of human interests, the inevitableness of action and reaction, are recognized, there bloom freedom, equity, justice, which are all but varying expressions for the same law. ”

“ Along with the spread of a belief in the uniformity of natural law has unfortunately gone a suggestion of parallelism of the moral law to it, and a notion that if we can discover the right formula, human society and government can be organized with a mathematical justice to all the parts. By many the dogma of equality is held to be that formula, and relief from the greater evils of the social state is expected from its logical extension. ”

“ But if you unite the will of all of them in one conception, as one will, then that one will divides the amount of possible freedom in equal parts amongst all; desires all to be free, and hence desires the freedom of each to be restricted by the freedom of all others. The only possible point of union for their will is, therefore, the Law, and, in our case—where a fixed number of men of various inclinations and occupations live together—the Law, in its application to them, or their Positive Law. As sure as they are united, they must will the law. ”

“ In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force: I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice. ”

“ Now, since the Conception of Rights can not be realized except through a universal commonwealth of all mankind, the right to realize it must always remain a right of each individual; and it is this right to realize a true lawful relation between mankind, which is the legal ground, why each individual, besides his particular limited sphere in space selected as his exclusive possession, has a right to claim all the rest of the world as sphere of causality. ”

“ Each can, therefore, clearly subsume the body of the other, in so far as that body is matter, to that general conception of modifiable matter; can think himself modifying the body of the other through physical power; and hence—since his will can be limited only through his thinking can also will thus to modify the other's body.
But for that very same reason, that is, because he is free, can every one restrict the exercise of his power, can he give a law to that exercise, and hence can he give to it the law, never to treat the other's body as a mere thing. ”

“ If this view is sound, there are as many standards and sources of justice as systems of law; for in this view of the matter, each community evolves its own ideals and makes laws to effectuate them. As each community evolves its own ideals, each must have its own standard of right and wrong; for that standard, in so far as any particular community is concerned, is equal to the sum of its ideals. If, however, the standard were objective, every community would have the same standard of right and wrong ”

“ Concerning justice and law, therefore, all are agreed; and all who are agreed necessarily desire law and justice. There can not be a community, whereof one member has another will than the other member. But as soon as two individuals are no longer united in their will, at least one of the two is also at variance with all the others; his will is an individual, and hence an unjust will. If the will of the other, with whom he is in conflict, agrees with the will of all the others, then this other is necessarily in the right. ”

“ This mutual ignorance cancels even the possibility to approve each other as beings who have rights. And since this ignorance extends even to the fact whether each intends to respect the freedom and inviolability of the other's body, the result is, that no law-relation at all is possible between them; every thing is and remains problematical.
In our deduction of the right of compulsion, we discovered already that, as soon as that right is to be applied, men can not live together without an agreement. ”

“ The order of castes, the order of rank, simply formulates the supreme law of life itself; the separation of the three types is necessary to the maintenance of society, and to the evolution of higher types, and the highest types—the inequality of rights is essential to the existence of any rights at all.—A right is a privilege. Every one enjoys the privileges that accord with his state of existence. ”

“ After we have determined this equilibrium of rights, we can proceed to a consideration of the right of compulsion, but not before.
II.
DEDUCTION OF AN EQUILIBRIUM OF RIGHTS.—All law relations are determined by this principle: each one must restrict his freedom by the possibility of the freedom of the other. We have shown what the conception of freedom, or pf original rights, involves. Such an infinite freedom would, however, cancel the freedom of all but a single person; nay, would even cancel the physical existence of freedom; and the conception of rights would therefore contradict itself. ”

“ Justice and legality are two things as independent of our consent as mathematical truth.... In order that truth should become law, it must be recognized. Now, what is it to recognize a law? It is to verify a mathematical or metaphysical operation. It is to repeat an experience, to observe a phenomenon, to prove a fact. ”

“ But even the condition, the community of free beings, is again conditioned by a common desire. No one can, by his own mere will, realize such a community with another unless the other has the same will, and by virtue thereof subjects himself to the principle of law conditioned thereby. ”

“ But who is to proclaim the common will, thus determined in all respects, regarding the rights of the individual citizen as well as regarding the punishment to be inflicted upon their transgression? Who is to interpret this necessary arrangement and agreement? The masses themselves would be the most improper body for it, and by counting together the expressed wills of the individuals, the true common will could scarcely be obtained in its purity. ”

“ The modern type of pluralism, starting at the level of self-consciousness, posits a multitude of monads or individuals acting towards self-conservation and self-realization, and can, it is believed, do full justice alike to law and contingency, to spontaneity and fixity. The pluralist, operating on the principle of continuity, assumes that there are conscious individuals or monads in various degrees lower than man down to the minimal point of complete unconsciousness ”

“ A is the end to assert my own right, B the end not to violate those of the other. Hence, if a law of compulsion can be contrived, which with mechanical necessity will make the violation of the rights of the other a violation of my own rights, then I will certainly take as much care to protect his as to protect my own. ”

“ Unless I act upon him according to the conception of a rational being, I can not prove to him that he must necessarily have taken me for a rational being. For every manifestation of power can be the result of a power of nature working by mechanical laws; and only the moderation of power through conception is the sure and exclusive criterion of reason and of freedom. ”

“ He exchanges the natural liberty to do and get what he can, a liberty limited by his relative strength, for a liberty at once limited and secured by the general will; he exchanges the mere possession of such things as he can get, a possession which is the effect of force, for a property founded on a positive title, on the guarantee of society. At the same time he becomes a moral agent. Justice instead of instinct becomes the guide of his actions. For the moral slavery to appetite he substitutes the moral freedom which consists in obedience to a self-imposed law. ”

“ Such being the direct working of the law in the case of possession, one would think that the animus or intent most nearly parallel to its movement would be the intent of which we are in search. If what the law does is to exclude others from interfering with the object, it would seem that the intent which the law should require is an intent to exclude others. I believe that such an intent is all that the common law deems needful, and that on principle no more should be required. ”

“ We are obviously obliged to require a certain ‘unity’ of the nature of ‘Thing.’ Just such unity, however, never appertains to what is simple, but in all cases only to that kind of multiplicity which, by a law of the combination of its parts, is so connected as to resist every unregulated increase, diminution, or change of its consistence, and to permit only such change as invariably leaves the new state subjected to the same law of its composition. ”

“ All arbitrary reciprocal causality of free beings has for its basis or ground an original and necessary reciprocal causality of those beings, which is, that each free being, by its mere presence in the sensuous world, compels all other free beings to recognize it as a person. It furnishes the fixed appearance; the other free being furnishes the fixed conception. Both are necessarily united, and there is not the smallest play-room for freedom. ”

“ The validity of that law depends, therefore, upon the fact whether a man is consistent or not. But consistency in this case depends upon the freedom of the will; and there is no more reason why a man should be consistent, unless he is compelled to be so, than there is why he should not be consistent. The law must, therefore, be applied to this freedom; and thus we have here the boundary-line between necessity and freedom for the Science of Rights. ”

“ I hold that by studying more closely what the process of discrimination logically implies, we shall be led to see something regarding what enables us to view all acknowledged facts as linked in a single Ordered System, in which countless definable Series of real facts are interwoven; and hereby we shall be led to a more definite idea of what is meant by the acknowledgment of Law in the natural, in the social, and in the moral order of the world. Thus our notions of the Unity of the world will become, in one aspect at least, more concrete. ”

“ Infinite change, illimitable novelty, inexhaustible difference, these are the foundations upon which nature builds and ratifies her purpose of individuality—so indispensable, amongst a thousand other great uses, to the very elements of social distinctions and social rights, But for the endless circumstances of difference which characterize external objects, the rights of property, for instance, would have stood upon no certain basis, nor admitted of any general or comprehensive guarantee. ”