Justice's Legal Origin
John Stewart Mill
Utilitarianism

The author explores the etymological roots of justice, suggesting that the term is historically linked to positive law and authoritative custom.

...ider it unjust that the produce of the labour of the community should be shared on any other principle than that of exact equality; others think it just that those should receive most whose needs are greatest; while others hold that those who work harder, or who produce more, or whose services are more valuable to the community, may justly claim a larger quota in the division of the produce. And the sense of natural justice may be plausibly appealed to in behalf of every one of these opinions.
Among so many diverse applications of the term Justice, which yet is not regarded as ambiguous, it is a matter of some difficulty to seize the mental link which holds them together, and on which the moral sentiment adhering to the term essentially depends. Perhaps, in this embarrassment, some help may be derived from the history of the word, as indicated by its etymology. In most, if not in all languages, the etymology of the word which corresponds to Just, points to an origin connected either with positive law, or with that which was in most cases the primitive form of law-authoritative custom. Justum is a form of jussum, that which has been ordered. Jus is of the same origin.
Dichanou comes from dichae, of which the principal meaning, at least in the historical ages of Greece, was a suit at law. Originally, indeed, it meant only the mode or manner of doing things, but it early came to mean the prescribed manner; that which the recognized authorities, patriarchal, judicial, or political, would enforce. Recht, from which came right and righteous, is synonymous with law. The original meaning, indeed, of recht did not point to law, but to physical straig...
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Wrong as Deserving Punishment
John Stewart Mill
Utilitarianism

The author defines the essence of a moral 'wrong' as an act that deserves punishment, whether by law or conscience, distinguishing morality from simple expediency through this penal sanction.

...ic disapprobation to bear upon the offender. Thus the idea of legal constraint is still the generating idea of the notion of justice, though undergoing several transformations before that notion, as it exists in an advanced state of society, becomes complete. The above is, I think, a true account, as far as it goes, of the origin and progressive growth of the idea of justice. But we must observe, that it contains, as yet, nothing to distinguish that obligation from moral obligation in general.
For the truth is, that the idea of penal sanction, which is the essence of law, enters not only into the conception of injustice, but into that of any kind of wrong. We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow creatures; if not by opinion, by the reproaches of his own conscience. This seems the real turning point of the distinction between morality and simple expediency.
It is a part of the notion of Duty in every one of its forms, that a person may rightfully be compelled to fulfil it. Duty is a thing which may be exacted from a person, as one exacts a debt. Unless we think that it might be exacted from him, we do not call it his duty. Reasons of prudence, or the interest of other people, may militate against actually exacting it; but the person himself, it is clearly understood, would not be entitled to complain. There are other things, on the contrary, whi...
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The Secret Hankering
John Stewart Mill
Utilitarianism

The text examines the persistent human impulse for 'lex talionis' or repayment in kind, noting that while modern law has largely moved past it, the desire for retributive justice remains a natural sentiment.

...justice grow up. This particular one evidently came into use as a help to 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 punishment to offences. No rule on this subject recommends itself so strongly to the primitive and spontaneous sentiment of justice, as the lex talionis, an eye for an eye and a tooth for a tooth. Though this principle of the Jewish and of the Mahomedan 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…
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...
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Utility's Sacred Justice
John Stewart Mill
Utilitarianism

The author maintains that the distinction between justice and expediency is real and sacred, asserting that justice grounded in utility is the most binding and fundamental part of all morality.

...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 of those who profess the most sublime contempt for the consequences of actions as an element in their morality, attaches more importance to the distinction than I do. While I dispute the pretensions of any theory which sets up an imaginary standard…
Justice is a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life; and the notion which we have found to be of the essence of the idea of justice, that of a right residing in an individual, implies and testifies to this more binding obligation. The moral rules which forbid mankind to hurt one another (in which we must never forget to include wrongful in...
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Consent as Fiction
John Stewart Mill
Utilitarianism

Mill critiques the legal maxim that consent justifies harm, suggesting it is a flawed attempt to resolve the complexities of punishment and an example of how irregular principles of justice are formed.

...supposed to have come into that state through no influence of anterior circumstances. To escape from the other difficulties, a favourite contrivance has been the fiction of a contract, whereby at some unknown period all the members of society engaged to obey the laws, and consented to be punished for any disobedience to them; thereby giving to their legislators the right, which it is assumed they would not otherwise have had, of punishing them, either for their own good or for that of society.
This happy thought was considered to get rid of the whole difficulty, and to legitimate the infliction of punishment, in virtue of another received maxim of justice, volenti non fit injuria; that is not unjust which is done with the consent of the person who is supposed to be hurt by it. I need hardly remark, that even if the consent were not a mere fiction, this maxim is not superior in authority to the others which it is brought in to supersede. It is, on the contrary, an instructive specimen of the loose and irregular manner in which supposed principles of justice grow up.
This particular one evidently came into use as a help to 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 l...
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