Mill says that throughout history, one of the biggest barriers to the acceptance of utility has been that it does not allow for a theory of justice. In this chapter, then, Mill will determine whether the justice or injustice of an action is something intrinsic and distinct from questions of utility. In examining this it is necessary to determine whether a sense of justice exists in itself, or is derivative and formed by a combination of other feelings; is this sense explicable by our emotional make-up, or is it a "special provision of nature"? To answer this, we must ascertain what the distinguishing quality of justice is, if there is such a quality.
Mill begins by trying to pin down the meaning of justice, by coming up with a list of those things that are commonly classified as just or unjust. First, it is considered unjust to deprive someone of his legal rights. However, this concept has exceptions. For example, a person may have legal rights he should not have--his rights may be the provision of a bad law. While people vary on whether bad laws can be justly disobeyed, all people agree that laws can be unjust. Therefore, law cannot be the ultimate standard of justice. A second form of injustice comes from depriving someone of something he has a moral right to possess. Third, it is considered just that a person receive what he "deserves," and unjust that he obtain something he doesn't deserve; people are thought to deserve good things if they have done right, and evil things if they have done wrong. A fourth form of injustice is to violate an agreement with someone or disappoint expectations that one knowingly nurtured. Fifth, it is considered unjust to show favoritism and preference in inappropriate circumstances. However, it is not generally necessary to be impartial; for example, one doesn't have to be impartial in the selection of friends. The claim is rather that a person should only be influenced by those considerations that should apply in a given circumstance. Finally, the idea of equality is seen by many to be a component of justice; some people may make an exception for the sake of expediency, however.
Given so many different applications of the concept of justice, it is hard to find what links them all together, and on what concept the sentiment of justice is based. Nevertheless, people do see justice as a unified concept, and do feel a sentiment of justice regardless of whether they understand its foundation. Mill says that some help may come from looking at the history of the word. In most languages, the word's origin came from either positive law or authoritative custom. Thus, the most primitive element of justice is the idea of conformity to law. The Greeks and Romans realized that there could be bad laws, and thus justice came to be associated only to those laws that ought to exist, including those that should exist but do not. Mill also recognizes, however, that the idea of justice is often applied to areas about which we would not want legislation: for example, we always think it right that unjust acts be punished, even if we recognize that it would be inexpedient for courts to acts as punishers in particular cases. The limitation on the scope of the state's right to punish in particular cases has to do with practical concerns about extending the state's power, not with a sense that the person should not be punished.
At this point, Mill observes that while this discussion has given a true account of the origin and development of justice, it does not show a distinction from other forms of morality. The idea of a penal sanction enters into any kind of wrong; in fact, something is considered wrong only when it is thought that the person should be punished either by law, opinion, or one's own conscience. Thus, moral obligation in general comes from the idea of duty, the idea that a person may rightly be compelled to do something. He argues that this concept of deserving or not deserving punishment is the essence of moral thinking in general. Mill argues that justice can be distinguished from other forms of morality by looking at the difference between perfect and imperfect obligations. Imperfect obligations are those that no one person has the right to require of another. Perfect obligations are those that a person may demand of another. Justice corresponds with the idea of perfect obligation: it involves the idea of a personal right. In cases of justice, the person who has been wronged has had his or her moral right impinged upon; it is thus his or her moral right to seek restitution.
Here Mill responds to the claim that utilitarianism is opposed to justice. This section is mostly descriptive, as Mill writes about the definition of justice and its historical origins. It is significant that Mill does not present his own theory about what justice requires. From Mill's perspective, justice is not an abstract concept so much as it is a sentiment about morality that many people share. Thus, in defining justice Mill looks to what other people mean by the term. It exists because people believe it exists, and it means what they believe it to mean. Starting from the popular conception of justice, Mill theorizes about what links a diverse set of ideas about justice. Ultimately, he argues that they are united by the concept of rights, a notion he introduces in his claims about perfect and imperfect obligations.
This section is the first time that Mill spends any time writing about rights. In the next section, he will go into the idea in greater detail. For Mill, a right means that a person has a valid claim that society to protect him against any violation. Many utilitarians dismiss the idea of rights as nonsense, and many debates about utilitarianism center around whether rights exist. Mill has a different perspective on this issue, however. In the next section Mill will defend rights, and do so under a utilitarian framework.
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