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The idea of Justice

We have defined the civil law by reference to the idea of right or justice. We have said that the law consists of the rules recognised and applied by the courts in the exercise of their function of enforcing and maintaining right or justice by means of the physical force of the state. If this is so, right or justice comes first in the order of logical conceptions, and law comes second and is derivative. A complete analysis of the idea of law involves, therefore, an analysis of the ethical element so involved in it. This task pertains in its full compass to the science of ethics rather than to that of jurisprudence, but a partial examination of the question is necessary here in view of the intimate relation which exists between the theory of law and the theory of justice.

We have used the terms right and justice as being synonymous. The question whether this is correct, or whether, on the contrary, justice is only one form or species of right, and, if so, what is the nature of the specific difference between justice and other forms of right, must be reserved for later consideration. In the meantime the possibility of any such difference will be ignored, and we shall regard the sphere of justice and the sphere of right as coincident and co-extensive.

Justice is of two kinds, being either:

  1. natural or moral justice, or
  2. legal justice.

The first of these is justice in itself; in deed and in truth; the second is justice as actually declared and recognised by the civil law and enforced in the courts of law. Natural justice is the ideal and the truth, of which legal justice is the more or less imperfect realisation and expression. Legal justice is the authoritative formulation of natural justice by the civil law for the direction of the courts by which justice is administered. Such portions of natural justice as are deemed fit for maintenance and enforcement by the state are formulated by the law in rules which must be accepted by the courts as the authoritative expression of such justice. Natural justice, as so authoritatively formulated, constitutes the legal justice of the state. Natural justice bears to legal justice the same relation that the truth bears to an authoritative creed which precludes inquiry.

Involved in the conception of justice are the derivative conceptions of duties and rights, and just as there are two kinds of justice so there are two kinds of duties and of rights. A duty is an act required by a rule of justice; an act the contrary of which would be an act of injustice or wrong. Duties, accordingly, are either

  1. natural or moral duties or
  2. legal duties.

A duty of the first kind is one which is required by a rule of natural justice; an act the contrary of which would be an act of moral injustice. A legal duty, on the other hand, is one which is required by a rule of legal justice; an act the contrary of which would amount to a violation of the law and a legal wrong or injury. A moral or natural duty becomes also a legal duty when the rule of natural justice, to which it owes its origin, is recognised also by the law as a rule of legal justice.

So, also, with rights. A right is an interest recognised and protected by a rule of right or justice. All rules of right or justice exist for the protection of the interests of men against the acts of other men. But all the interests of men are not so protected. Those which are so protected are called rights All right is the right of the person for whose sake it exists, and who is interested in the observance of it. That I have a right to anything means that it is right that I should have that thing. This being so, rights must be of two kinds, just as the justice in which they have their source is of two kinds. They are either

  1. natural or moral rights,
  2. legal rights.

A right of the first kind is one which is conferred by a rule of natural or moral justice. A legal right, on the other hand, is one which is conferred by a rule of legal justice. A natural or moral right becomes also a legal right when the rule of natural justice, in which it has its origin, is recognised also by the law as a rule of legal justice.

Legal justice and natural justice represent intersecting circles. Justice may be legal but not natural, or natural but not legal, or both legal and natural. For the law is necessarily incomplete in the sense that it does not seek to cover the whole sphere of natural or moral justice or duty; and it is also necessarily to some extent imperfect and erroneous, recognising and enforcing as justice what is not justice in deed and in truth, and therefore creating rights and enforcing duties which are legal rights and duties only, and not also natural rights and duties.

What, then, is the true nature of this natural or moral justice which is thus distinguished from legal justice, and what is the true nature of these natural or moral rights and duties? Before attempting an answer to this question there are three possible misconceptions which should be cleared away.

Natural justice and ideal law

In the first place, natural justice does not mean an ideal or perfect form of legal justice. A moral right cannot be defined as one which ought to be recognised as a legal right, nor a moral duty as one which ought to be enforced as a legal duty. For, in the first place, there is a large portion of the sphere of natural or moral right and justice which is not fit for enforcement by the state at all; and, in the second place, even within that portion which is thus fit for enforcement, there is a large part which is not fit for reduction to rigid rules of civil law, but is rightly left to the discretion of the courts to do that which is thought by them to be required by natural justice; and, in the third place, we reason in a circle when we try to define natural right or justice by the use of the term “ ought, ” or by reference to the ideal or the perfect form of civil law The term “ ought ” involves in itself the conception of right, and therefore cannot be used for the purpose of defining it. So the ideal or perfect form of law can only be defined as that which most completely maintains right or justice.

Natural justice and positive morality

In the second place, natural or moral justice is not to be identified with the rules of positive morality. Positive morality means the rules of conduct approved by the public opinion of any community; the rules which are maintained and enforced in that community, not by the civil law, but by the sanction of public disapprobation and censure. Positive morality bears the same relation to natural right or justice that legal right or justice does. Positive morality is a more or less incomplete and imperfect attempt by the public opinion of a community to formulate and enforce the rules of natural right and justice, even as legal justice is the attempt of the state, by its legislature and courts of justice, to do the same. The rights and duties prescribed and enforced by the social law of public opinion, no less than those prescribed and enforced by the civil law of the state, may be far from complete coincidence or identity with those recognised by the rule of natural right and justice.

Natural law

In the third place, natural or moral right or justice is not to be conceived as a system of authoritative and binding rules imposed upon mankind by some form of imperative law, just as legal justice consists of rules imposed upon citizens by the imperative law of the state to which they belong. The idea of a law of nature or a moral law; lex naturae , lex naturalis; as a form of imperative law in which natural justice has its source, just as legal justice has its source in the imperative law of the state, has played a notable part in the history of human thought in the realms of ethics, theology, politics, and jurisprudence. It was long the accepted tradition of those sciences, but it has now fallen on evil days, and it can no longer be accepted as in harmony with modem thought on those matters.

This imperative theory of natural right and justice has, in the course of its history, assumed two forms and passed through two stages, which may be conveniently distinguished as the theological and the secular. In the first of these, natural or moral law is conceived as imposed upon men by the command of God. In a passage which has been already quoted from Thomasius, it is said

Natural law is a Divine law, written in the hearts of all men, obliging them to do those things which are necessarily consonant to the rational nature of mankind. ”

So we read in the Catechism of the Church of Scotland that “ The moral law is the declaration of the will of God to mankind directing and binding everyone to obedience thereunto … in performance of all those duties of holiness and righteousness which he oweth to God and man, promising life upon the fulfilling and threatening death upon the breach of it.

So in later days Blackstone says “ The law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries and at all times no human laws are of any validity, if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. ”

In its alternative and secular form, natural or moral law is still conceived as in some sort imperative, but the idea of Divine imposition and command has disappeared or receded into the background of thought, and this law is vaguely and metaphorically regarded and spoken of as imposed authoritatively on mankind by Nature or by Reason or by the Conscience. It is no longer the command of God, but the imperative idea is retained, and the moral law, the rule of right and wrong, is conceived as the product of some form of legislative authority possessed by man over himself; as by his reason over his passions, or by his higher nature over his lower. The idea of moral duty or obligation is still vaguely conceived as based on some form of imperative imposition, although no longer explicitly on Divine imposition. But this secular form of natural or moral law is merely the frustrate ghost of the natural or moral law of the theologians. Regarded as a form of imperative law, whether from the religious or from the secular point of view, natural or moral law no longer finds a recognised place in the ethical or juristic speculation of the present day. Indeed, the terms themselves, which have had so long and influential a history in law and morals, have all but fallen out of use. We still speak of natural justice, rights, and duties, but rarely of that natural law by which they are recognised. Nevertheless, the term natural law, if definitely freed from its early and misleading associations of command and authoritative imposition, is capable of useful service. So long as we do not suppose that natural law is the source of natural justice, in the sense of an imperative law by which it is established and from which it derives authority, we may usefully continue to employ the term as meaning nothing more than the aggregate of the rules of natural justice. The elimination of the illegitimate imperative idea reduces natural law from a system of authoritative imposition to a system of doctrine. A system of natural law declares, formulates, or expresses the principles of natural right and justice, but it does not add compulsion to instruction. Natural justice becomes imperative only when its principles are recognised as fit for compulsory enforcement by some form of human authority; notably by the state through the instrumentality of courts of justice and the civil law. The essential purpose and business of those courts is to give to natural justice that coercive authority which in itself it lacks, and to maintain it by the physical force of the incorporate community against all who disregard it The legal justice of the state is natural justice armed. Similarly, natural law and justice become, by another road, a system of imperative imposition and control, so far as recognised by, and incorporated in, that law of positive morality which has its source in public opinion and its sanction in the penalties of public censure.

So long as natural or moral law is conceived as being a form of imperative law analogous to civil law, the same imperative element is carried into the derivative conceptions of natural or moral duties and rights. Moral duties, like legal duties, are thought of as imposed and enforced by some form of authoritative constraint. Natural rights, like legal rights, are conceived as claims capable of some form of exaction. The elimination of the imperative element from natural law eliminates it at the same time from the conception of natural or moral rights and duties. The element of coercion is left to be superadded a b extra by ,some form positive and imperative law, and is no longer conceived as inherent in the natural or moral rights and duties themselves. A natural duty becomes merely an act the omission of which would be inconsistent with the rules of natural justice; and a natural right becomes merely an interest the disregard of which would be a breach of natural justice; an interest, that is to say, which is protected by natural duties imposed on other persons.

The nature of Justice

If natural law and justice is not a system of command, authority or government, but is merely a system of doctrine, what is the subject-matter of this doctrine, and what does it teach? The significance of all human action depends, in law and morals, on its effect on human welfare. Acts that have no effect, whether for good or evil, on the interests of mankind have no significance either for ethics or for jurisprudence. In what then does human welfare; the good of mankind; consist? On this question in philosophers have disputed in all ages, and with respect to it there are two predominant types of ethical theory. According to one of these human well-being; the summum bonum; consists in human perfection, and according to the other it consists in human happiness Philosophers who hold the first of these opinions teach us that it is the business of a man to seek perfection; to attain the ideal form and nature of a man; and so to fulfil Nature’s purposes in making him. They hold, accordingly, that everything is good which makes for such perfection, and everything evil which hinders it. Philosophers of the other school teach us that the business of men is to be happy, that everything is good so far as it produces happiness, and everything evil so far as it produces suffering and sorrow, and that nothing is either good or evil for any other reason. Rightly understood, however, these two different theories lead us to the same results. Men have no means of knowing the purpose for which Nature created them; if any such purpose there be; except by taking as their guide the instincts with which Nature has endowed them. In accordance with these instincts they desire certain things and seek them. In the satisfaction of these desires and the successful accomplishment of these endeavours they find life and happiness. In the frustration of these desires and the failure of these endeavours they find pam, sorrow, and death. The only perfection which man is capable of knowing lies in his capacity thus to do Nature's bidding and to attain the reward of his activities and the satisfaction of his desires. The only test of perfection, and the only indicia of conformity to the ideal type and final cause of human nature, are to be found in the conditions of human happiness. Let us say, therefore, that human well-being; the summum bonum; consists in the abolition, so far as may be, of suffering and sorrow and the increase, so far as may be, of all forms of desirable consciousness, so that men may lead happy lives enduring to length of days.

It is from its effect on human welfare, as so conceived, that all human action derives its practical significance, and by reference to this effect that it must be judged. Now this effect is twofold. An action may be considered either as to its effect on the well-being of the actor himself, or as to its effect on the well-being of mankind at large. Viewed solely in regard to the actor himself, his act is to be judged as being either wise or foolish; wise if it promotes his well-being, foolish if it diminishes it. Viewed, not merely in regard to the actor himself, but in regard to the general well-being, his act is to be judged as right or wrong, just or unjust. It is right and just if it promotes the public welfare, wrong and unjust if it diminishes it. The rule of wisdom; that is to say, self-regarding wisdom, the prudence of self-interest; instructs a man how he must act in order thereby to secure and promote his own welfare. The rule of justice instructs him how he must act in order to secure and promote the general welfare of mankind.

If the interests of each individual were in all respects coincident with the interests of mankind at large; it it were possible for every man to pursue his own desires and purposes and to seek his own good without thereby interfering with the similar activities of other men, there would be no need or place for the rule of justice. The rule of practical wisdom and of self-interest would serve all purposes. But this is not so. The world is so made that the good things in it are like bread in a besieged city. There is not enough and to spare for all. The good which is available must therefore be so apportioned among those who seek it as to be put to the best use. To allow every man to take as much of it as he can get is to waste much of what there is. The rule of this apportionment is the rule of justice. Justice consists in giving to every man his own. The rule of justice determines the sphere of individual liberty in the pursuit of individual welfare, so as to confine that liberty within the limits which are consistent with the general welfare of mankind. Within the sphere of liberty so delimited for every man by the rule of justice, he is left free to seek his own interest in accordance with the rule of wisdom.

So far there is no question of compulsion, command, or authority. Neither the law of self-regarding wisdom nor the law of natural justice belongs to the class of laws imperative. They are practical laws in the sense in which that term has been defined in the preceding chapter of this book. They assume or presuppose a certain end or purpose, and lay down the rules of action by which that end or purpose is to be reached. The formula of every such law is not that of command, but that of advice : to reach that end, this is the way which you must take The law of justice is in this respect of the same nature as the law of self-interest. If command is to be added to advice, and authority to doctrine, the additional element must be found in some regulative or coercive system of government, such as the administration of justice by the state or the control exercised by the pressure of public opinion in support of those rules which are recognised within any society as being the rules of right.

Both within the sphere of justice and within the sphere of the wisdom of self-interest, the conception involved in the word “ ought ” is of the same nature. The statement that a man ought to do a certain act presupposes some appointed end, and indicates that the act in question is the proper means to that end. That he ought to take care of his health and to practise temperance means that this is the way to his own welfare. That he ought to keep his promises and abstain from violence and fraud means that this is the way to the general welfare. But the conception of “ ought ” has no application to the end itself. The question why a man ought in the way of justice to seek the general welfare has no more meaning, and therefore no more admits of an answer, than the question why he ought in the way of wisdom to seek his own.

We have, for the sake of simplicity, spoken of that general welfare, to which the rule of right and justice is directed, as if it was confined to the welfare of mankind. If, however, we accept the utilitarian view that the good means happiness and that evil means pain, it becomes clear that the welfare of the lower animals does not differ save in degree from the welfare of mankind, and must be counted as part of that general welfare which is under the guardianship of the rule of right. We owe moral duties to beasts as well as to men, and in the civil law of modem and civilised communities this part of natural justice has become a part of legal justice also But the capacities and needs of beasts, in respect of their sentient and emotional life, are so immeasurably below those of men that the interests of beasts, as so recognised by the rules of natural and legal justice, are of little more than negligible importance as compared with the elements of human welfare. Indeed, the civil law, while punishing unjustifiable cruelty to beasts as a criminal offence, does not so far recognise their interests as to treat them as legal rights. All legal rights are the rights of men. It is practically sufficient, therefore, while recognising the subordinate claims of the lower animals, to deal with the theory of right and law as if it related to the general welfare of mankind alone. We may say with the Roman lawyers : Hominum causa omne jus constitutum.

Justice conceived as one portion of right

In the general sense in which we have hitherto used the term, justice is synonymous with right. The rule of justice and the rule of right are the same thing and co-extensive in their scope. All right is justice and all wrong is injustice. It is now to be observed that a narrower meaning is often given to the term justice. Justice is conceived as being merely one part of right, and not the whole of it. Similarly, duties are recognised as of two kinds, only one of which consists of duties of justice. So wrong is divided into two kinds, and only one of them amounts to injustice. What then is the nature of the distinction thus indicated? It is based on the distinction between rights and duties Justice, it is said, means specifically the observance of rights, and injustice the violation of rights. But all duties, it is said, do not correspond to rights vested in other persons. Every breach of duty, therefore, does not amount to injustice; it may be a breach of the rule of right in general, but not a breach of the rule of justice in particular. A man acts unjustly, it is said, if he refuses to pay his debts, or if he breaks his contracts, or if he takes away or injures another man’s property, or if he obtains money by fraud, for in all such cases he violates a right vested in someone else. But no one would accuse him of injustice because he is drunk and disorderly, or carries on a noxious trade to the annoyance of the public, or obstructs the public highway; for in such cases, it is said, although he disregards his duty, he does not violate any correspondent right vested in another person. Justice, as the Roman lawyers said, consists in giving to every man his rights Justitia est constans et perpetua voluntas jus suum cuique tribuens.

The distinction so drawn between right in general and justice in particular does not seem capable, however, of standing the test of logical analysis. The truth of the matter would seem rather to be this, that the distinction is one of aspect and point of view rather than one of nature or subject-matter. All right or wrong conduct has two aspects, and is capable of being looked at from two different points of view. The point of view may be either that of duties or that of rights We may view and judge an action with reference either to the duty fulfilled or broken by the actor, or, alternatively, with reference to the right which is thereby preserved or violated From the point of view of duties, the act belongs to the sphere of right or wrong, from the point of view of rights, it belongs to the sphere of justice or injustice. But this double aspect exists in truth in all cases. There are no duties without rights, any more than there are rights without duties. There is, therefore, no rule of right which is not at the same time in truth a rule of justice, and there is no wrong which is not also in truth an injustice But the one aspect or point of view is sometimes more natural or more illuminating than the other. Sometimes, therefore, rights come into the foreground of thought and speech, and sometimes duties.

We may test the matter by considering the nature of those alleged duties of right which are not also duties of justice. They are of three classes

  1. self-regarding duties as opposed to duties towards others;
  2. duties to the public as opposed to duties to individuals,
  3. imperfect duties as opposed to perfect duties.

Self-regarding duties

As to the first of these, if the foregoing attempt to explain the essential nature of the rule of right is accepted as substantially correct, it follows that a man owes no duties to himself. Self-interest falls within the rule of wisdom, not within the rule of right. The rule of right relates to the effects of a man’s actions, not upon himself, but upon others. For Robinson Crusoe on his island, remote from mankind, his acts were neither right nor wrong, just nor unjust; they were merely wise as conducing to his own interest, or foolish as being contrary to it. The conception of right and wrong, justice and injustice, has its source in the conflict between the interests and desires of the individual and those of other men, and the sole business of the rule of right or justice is to adjudicate between these conflicting interests and to allot to every man his own. Temperance, frugality, industry, the care of a man’s own health, so far as they are duties, are duties which he owes not to himself, but to those dependent on him or to the community at large. Quoad se ipsum they are not duties at all, but counsels of practical wisdom. The rule of wisdom may, no less than the rule of right, form the subject of ethics or moral philosophy as the science of human conduct and character, but it is not itself a part of the rule of right. The so-called self-regarding duties, therefore, cannot be made the ground of any distinction between justice and the residue of right properly so called.

Duties to the community

In the second place, a distinction is drawn between duties to specified individuals and duties to the public at large. Duties of the first kind, it is said, correspond to rights vested in those individuals; but duties of the second kind correspond to no rights at all. Duties of the first kind, therefore, are duties of justice, but those of the second kind, are merely duties of right in general. There is no doubt that this distinction conforms with substantial accuracy to the usages of speech. As already explained, however, it expresses a difference of point of view and not a difference of subject-matter When a duty is owing not directly to any individual, but merely to the community at large, the corresponding right is vested in the community. A public nuisance is in truth a violation of the rights of the public, just as a private nuisance is a violation of the right of a private individual. The circumstance, however, that the right is not that of any single or ascertained person, but is merely that of the public at large, tends to concentrate attention on the duty broken rather than on the right violated. Conversely, in the other class of case, the right violated comes into the foreground of thought, inasmuch as it is the right of a single person, on whom the mischief of the breach of duty falls exclusively. In popular thought and speech, therefore, we naturally think and speak of breaches of duty in one class of case and of violations of rights in the other. But in substance and essence a duty to the community at large is no less a duty of justice than is a duty to an individual person.

Perfect and imperfect duties

In the third place, a distinction is often drawn between perfect and imperfect duties; the former alone falling within the sphere of justice. By a perfect duty is meant one which is rightly enforceable; one which is fit to be maintained by physical force, and therefore would be so maintained by a perfect system of civil law and legal justice. An imperfect duty, on the other hand, is an act which ought to be done in observance of the rule of right, but the doing of which should nevertheless be left to the free will of the actor, since it is not of such a nature as fits it for compulsory exaction by way of physical force Such duties stand outside the scope of an ideal system of civil law. They are natural or moral duties which are not fit to be transformed into legal duties. Thus the duty to pay one's debts or to keep one's contracts is a perfect duty; for it is the business of any properly governed state and of any competent body of civil law to enforce such duties. They pertain, therefore, to the sphere of justice. But duties of charity, benevolence, or gratitude are imperfect. They are not fit for enforcement by the state or proper to be transformed into legal duties. Imperfect duties, it is said, have no rights corresponding to them, or, at all events, no perfect rights, or rights properly so called; for the essence of a right consists, it is said, in the rightful possibility of exaction by force. Therefore justice includes the sphere of perfect duties only. Imperfect duties pertain not to justice but to the domain of voluntary virtue.

The distinction so drawn between perfect and imperfect duties is, doubtless, one which possesses both logical validity and practical importance. It is certain that one part of the rule of natural right should be taken up into the sphere of legal right, and that the residue should remain outside. The civil law and the administration of public justice are not the proper guardians of the entire body of morality The distinction, however, is subject to two criticisms. In the first place, it is to be observed that the specific use of the term justice as denoting exclusively the sphere of perfect duties is not in conformity with established usage. Justice does not connote enforceability or consonance with an ideal system of civil law. It means, as already indicated, the due observance of rights, whether such rights are of a nature to be properly enforced by law or not. We speak of a father’s treatment of his children as being unjust, without any thought of enforceability or of the civil law, whether actual or ideal. Natural or moral justice is natural or moral right in its whole compass, regarded from the point of view of the interests protected by it, rather than from that of the duties imposed by it—and this is so whether those rights and duties are regarded as properly enforceable or not.

The second criticism relates to the use which is sometimes made of this distinction between justice and other forms of right. Attempts have been made so to define justice in this sense that, by a process of deductive reasoning, conclusions may be reached as to the proper limits of the administration of justice in the state's courts, and of the interference of the legislature with private liberty. One of the most noteworthy of these attempts is that made by Herbert Spencer in his Principles of Ethics. He divides the sphere of ethics in the first place into two parts, dealing respectively with the so-called self-regarding duties and with duties towards others. The first part he calls the Ethics of Individual Life, and the second the Ethics of Social Life. He then proceeds to divide the latter into two parts, dealing respectively with Justice and Beneficence Justice includes the perfect and rightly enforceable duties. This alone is the proper sphere of the law courts and the legislature Beneficence, on the other hand, includes all imperfect and unenforceable duties. This is the domain of voluntary virtue, into which the civil law must not trespass. The distinction so drawn by him between justice and beneficence is not empirical. It purports to be a scientific boundary, and the scope of justice is to be deductively ascertained by reference to the definition of that form of right. His definition is essentially the same as that of Kant. Justice is that scheme of limitation of the liberty of the individual whereby “ the liberty of each is limited only by the like liberties of all. ” The all-embracing formula of justice is:

“ Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man. ”

All that goes beyond this in the operations of the legislature or of the law courts is trespass and usurpation; an unjustifiable transformation into legal justice of rules which pertain, not the sphere of justice at all, but to the definitely contrasted sphere of voluntary well-doing. This is not the place for any critical examination of this or any other attempt so to limit deductively and scientifically the proper boundaries and territory of the civil law. It may be permissible, however, to express the opinion that neither by way of this principle of equal liberty, nor by way of any other substitute for it, is it possible to find a royal road by which we can attain deductively to any sound distinction between those duties which are fit for legal recognition and enforcement, and those which must properly be left within the domain of civil liberty The most that can be hoped for is the formulation of principles as to the relative advantages and disadvantages of legal restraint on the one hand and natural liberty on the other, in order that the issue may be better judged in each individual instance in which it arises for decision.

Private and Public Justice

There remains for examination one further question. When we consider justice, not merely in its general aspect, but in its special aspect as administered and maintained by the tribunals of the state, it becomes manifest that it is of two kinds. Justice is either private or public The former is a relation between individual persons; between man and man; while the latter is a relation between individual persons and a court of justice. The rule of private justice is concerned with the dealings of men with each other, the rule of public justice is concerned with the dealings of a judicial tribunal with those who come before it as subject to its jurisdiction. Private justice is that which the courts are appointed to maintain or enforce , public justice is that which they are appointed to administer or dispense. The former is maintained by the courts in the same sense in which the police force maintains the public peace; while the latter is administered by the courts in the same sense in which a physician administers drugs. Public justice is that which a plaintiff demands and receives from a judicial tribunal, because he has failed to obtain private justice from his antagonist; it is that which a criminal is brought before the tribunal to receive and suffer, because he has already violated private justice by his crime. Private justice is the end for whose sake the courts exist; public justice is the instrument by which they fulfil their functions. Where in Magna Carta it is provided that right and justice (rectum et justitia) shall not be sold, denied, or delayed, the right and justice intended is the public justice of the courts, not that private justice which determines the rights of the King’s subjects as between themselves. The business of the courts is so to dispense public justice as to give to every man what he deserves by reason of some violation of private justice already done or suffered by him. It is public justice, not private justice, that carries the sword and the scales.

Public justice is of two kinds, being either criminal or civil. The nature of this distinction will be more fully considered at a later stage of this inquiry. It is sufficient here to say that criminal justice is retributive, whereas civil justice is remedial. Criminal or retributive justice gives to a wrong-doer what he deserves, in the way of punishment, for his infraction of the rule of private justice. Civil or remedial justice gives to a person who has been injured by a violation of private justice what he deserves by way of restitution or redress from him who has so injured him.

The distinction between natural and legal justice, which has been already considered by us, exists both within the sphere of public and within that of private justice. Rules of civil law exclude, so far as they extend, the liberum arbitrium of the courts both in determining the principles of that private justice which they are appointed to maintain, and in determining the principles of that retributive or remedial justice which they are appointed to administer. So far as the law so extends, both private and public justice fall within the domain of legal justice; so far as the law does not extend, the justice maintained and administered by the tribunals of the State is natural or moral justice.

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