Justice

The good of mankind is the only object of all the laws of justice. Men’s possessions should be separated for the peace and interest of society.

The rules which separate them further serve the interests of society.

An alien deliberates with himself what rules of justice or property would best:

• promote public interest
• establish peace and security among mankind

He would:

• assign the largest possessions to the most extensive virtue
• give every one the power of doing good, proportioned to his inclination.

A perfect theocracy is governed by an infinitely intelligent being*.

• In such a society, this rule would certainly exist

But if humans executed such a law, our merit would be so uncertain due to:

• its natural obscurity, and
• the self-conceit of each individual

No determinate rule of conduct would ever result. This would immediately lead to the total dissolution of society.

Fanatics may suppose that:

• dominion is founded on grace, and
• saints alone inherit the earth

But the civil magistrate very justly views these fanatics as common robbers.

It teaches them, by the severest discipline, that such a speculative rule which might seem the most advantageous to society is actually totally destructive.

England had such religious fanatics during the civil wars. Their horrors led people to renounce or at least hide their tenets.

Communism (Levellers) is Unnatural and Shallow

The LEVELLERS claimed an equal distribution of property.

• They were POLITICAL fanatics which arose from the religious species.

Nature is so liberal to mankind.

• If all her presents equally divided among us and improved by art and industry, everyone would enjoy:
• all the necessaries, and
• even most of the comforts of life

nor would ever be liable to any ills but such as might accidentally arise from the sickly frame and constitution of his body.

Wherever we depart from this equality, we rob the poor of more satisfaction than we add to the rich.

The slight gratification of a frivolous vanity, in one individual, frequently costs more than bread to many families, and even provinces.

The rule of equality seems very useful.

It also seems somewhat practicable in some republics;, particularly in Sparta where it produced great benefits. The Roman Agrarian laws that were enforced in many Greek cities came from the utility of this principle.

But common sense tells us that PERFECT equality is IMPRACTICABLE in the end.

If they were not so, they would be extremely PERNICIOUS to society.

If we make possessions so equal, the different degrees of men’s art, care, and industry will immediately break that equality.

If you check these virtues, you reduce society to the most extreme poverty.

• You would make the whole society poor instead of preventing poverty in a few.

The following are needed to prevent every inequality on its first appearance:

• the most rigorous inquisition to see it
• the most severe jurisdiction to punish and redress it.

So much authority would:

• soon degenerate into tyranny
• be exerted with great partialities

Who can possibly have that authority?

The perfect equality of possessions:

• destroys all subordination.
• weakens extremely the authority of magistracy
• reduces all power nearly to a level, as well as property.

In order to establish laws to regulate property, we must:

• know the nature and situation of man.
• reject appearances, which may be false, though specious
• search for those rules which are most USEFUL and BENEFICIAL on the whole.

Vulgar sense and slight experience are sufficient for this purpose as long as people are not too selfish nor fanatical.

Everyone sees that:

• whatever is produced or improved by a man’s art or industry should be secured to him in order to encourage such USEFUL habits and accomplishments.
• property should also descend to children and relations for the same USEFUL purpose
• property may be alienated by consent, in order to create commerce, which is so BENEFICIAL to society.
• all contracts and promises should carefully be fulfilled, in order to secure mutual trust and confidence, by which the general INTEREST of mankind is so much promoted

All the writers on the laws of nature have principles which assign the ultimate reason for their rules as the convenience and necessities of mankind.

A concession thus extorted, in opposition to systems, has more authority than if it had been made in prosecution of them.

What other reason, indeed, could writers ever give, why this must be MINE and that YOURS; since uninstructed nature surely never made any such distinction?

The objects which receive those appellations are, of themselves, foreign to us; they are totally disjoined and separated from us; and nothing but the general interests of society can form the connexion.

Sometimes the interests of society may require a particular rule of justice, but is unable to decide that particular rule.

In that case, the slightest analogies are laid hold of, in order to prevent that indifference and ambiguity, which would be the source of perpetual dissension.

Thus possession alone, and first possession, is supposed to convey property, where nobody else has any preceding claim and pretension.

Many of the reasonings of lawyers are of this analogical nature, and depend on very slight connexions of the imagination.

Does any one scruple, in extraordinary cases, to violate all regard to the private property of individuals, and sacrifice to public interest a distinction which had been established for the sake of that interest? The safety of the people is the supreme law= All other particular laws are subordinate to it, and dependent on it= And if, in the COMMON course of things, they be followed and regarded; it is only because the public safety and interest COMMONLY demand so equal and impartial an administration.

Sometimes both UTILITY and ANALOGY fail.

• This leaves the laws of justice in total uncertainty.

Thus, prescription or long possession is needed to convey property.

But how many days, months, or years should be sufficient for it?

• This is impossible for reason alone to determine.

CIVIL LAWS here:

• supply the place of the natural CODE
• assign different terms for prescription, according to the different UTILITIES, proposed by the legislator.

Bills of exchange and promissory notes, by the laws of most countries, prescribe sooner than bonds, and mortgages, and contracts of a more formal nature.

All questions of property are subordinate to the authority of civil laws.

• These laws extend, restrain, modify, and alter the rules of natural justice, according to the CONVENIENCE of each community.

The laws should have, a constant reference to:

• the constitution of government
• the manners
• the climate
• the religion
• the commerce
• the situation of each society.

{{ < box > }} Montesquieu sets out with a different theory. He supposes all right to be founded on certain relations.

I think that his system can never be reconciled with true philosophy.

Father Malebranche was the first to have the abstract theory of morals.

• It was afterwards adopted by Cudworth, Clarke, etc.
• It excludes all sentiment and bases everything on reason.

Justice is not based on reason.

• This is because property dependens on civil laws.
• Civil laws are meant for the interest of society.
• Thus, the common interest is the sole foundation of property and justice.

Our obligation to observe justice is also founded on the interests of society.

Sometimes, the ideas of justice do not follow the dispositions of civil law.

• This is because civil law can be made against the common interest.

Civil law loses its authority if it goes again all of the interests of society.

• This is because people judge by the ideas of natural justice, which are conformable to those interests.

Thus, the interests of society require that contracts be fulfilled. There is not a more material article either of natural or civil justice.

But the omission of a trifling circumstance will often invalidate a contract in foro humano, but not in foro conscientiae, as divines express themselves.

• In these cases, the magistrate only withdraws his power of enforcing the right, not to have altered the right.

Where his intention extends to the right, and is conformable to the interests of society; it never fails to alter the right.

This is a clear proof of the origin of justice and of property, as explained above. {{ < /box >}}