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4. THE CODES OF COMMUNITIES: JUSTICE.—In view of the existing tendency in the average man, and even in some philosophers, to pass lightly over the diversities exhibited by different codes, it is well to cast a brief preliminary glance at the content of morals as accepted, both by communities of men, and by their more reflective spokesmen, the moralists. Let us first take a look at the codes of communities.

We have seen that Butler viewed justice, veracity and regard to common good as virtues accepted among men everywhere. But we may also see, if we look into his pages, that he neglected to point out that there may be the widest divergencies in men's notions of what constitutes justice, veracity and common good. And men differ widely on the score of the degree of emphasis to be laid upon their observance.

Take justice. Where men possess a code, written or unwritten, that may properly be called moral, we expect of them the judgment that guilt should be punished. But what shall be accounted guilt? What shall be the measure of retribution? Who shall be fixed upon as guilty?

As to what constitutes guilt. We have only to remind ourselves that the Dyak head-hunter is not condemned by his fellows, but is admired; [Footnote: WESTERMARCK, The Origin and Development of the Moral Ideas, London, 1906, I, chapter xiv.] that the fattening and eating of a slave may, in a given primitive community, be accounted no crime; [Footnote: WESTERMARCK, op. cit. II, chapter xlvi.] that infanticide has been most widely approved, and that not merely in primitive communities, for Greece and Rome, when they were far from primitive, practiced certain forms of it with a view to the good of the state; [Footnote: Ibid., I, chapter xvii.] that the holding of a fellow-creature in bondage, and exploiting him for one's own advantage, even under the lash, was, until recently, not a crime in the eye of the law even in the most civilized states. On the other hand, it may be a crime to eat a female opossum. [Footnote: Ibid., I, chapter iv, p. 124.] The impressive imperative: Thou shalt not! appears to bear unmistakable reference to time and circumstance.

And what is the natural and proper measure of punishment? The ancient and primitive rule of an eye for an eye and a tooth for a tooth suggests the figure of the scales, the impartially meting out to each man of his due. It is obviously a rule that cannot be applied in all cases. One cannot take the tooth of a toothless man, or compel a thievish beggar to restore fruit which he has eaten. We should be horrified were any serious attempt made to make the rule the basis of legislation in any civilized state today, but men have not always been so fastidious. Approximations to it have been incorporated into the laws of various peoples.

But all have modified it to some degree, and the modifications have taken many forms—the punishment of someone not the criminal, compensation in money or in goods, incarceration, and what not. Nor have the modifications been made solely on account of the difficulty of applying the rule baldly stated. Other influences have been at work.

Thus, in the famous Babylonian code, the man who struck out the eye of a patrician lost his own eye in return, and his tooth answered for the tooth of an equal—but the rule was not made general. [Footnote: 5 HOBHOUSE, Morals in Evolution, I, chapter iii, Sec 3; New York, 1906.] In state after state it has been found just to treat differently the patrician, the plebeian, the slave, the man, the woman, the priest. In the very state to which Butler belonged, benefit of clergy could be claimed, up to relatively recent times, by those who could read. The educated criminal escaped hanging for offences for which his illiterate neighbor had to swing. [Footnote: Ibid., Sec. 11.]

Nor is there any clear concensus of opinion touching the question of who shall be selected as the bearer of punishment. If a man has injured another unintentionally, shall he be held to make amends? It has seemed just to men that he should. [Footnote: WESTERMARCK, chapter ix.] That one man should be made responsible for the misdeeds of another, under the principle of collective responsibility, has commended itself as just to a multitude of minds. Not merely the sins of the fathers, but those of the most distant relations, those of neighbors, of fellow-tribesmen, of fellow-citizens, have been visited upon those whose sole guilt lay in such a connection with the directly guilty parties. This is not a sporadic phenomenon. Among the ancient Hebrews, in Babylonia, in Greece, in the later legislation of Rome, in medieval and even in modern Europe, the principle of collective responsibility has been accepted and has seemed acceptable. Asia, Africa and Oceania have cast votes for it. So have the Americas. [Footnote: WESTERMARCK, I, chapter ii; DEWEY AND TUFTS, Ethics, New York, 1919, Part I, chapter ii.]

5. THE CODES OF COMMUNITES: VERACITY.—As to veracity: It has undoubtedly been valued to some degree, and with certain limitations, by tribes and nations the most diverse in their degrees of culture. Did men never speak the truth they might well never speak at all. But to maintain that absolute veracity has at all times been greatly valued would be an exaggeration. The lie of courtesy, the clever lie, the lie to the stranger, have been and still are, in many communities both uncivilized and more advanced, not merely condoned, but approved. With the defence which has been made of the doctrines of mental reservation and pious fraud students of church history are familiar. In diplomacy and in war today highly civilized nations find deceptions of many sorts profitable to them, nor are such generally condemned. [Footnote: WESTERMARCK, II, chapters xxx and xxxi.]

What modern government does not employ secret service agents, and value them in proportion to the degree of skill with which they manage to deceive their fellows, while limiting the exercise of professional good faith to their intercourse with their paymaster? The secret service agent of transparent frankness, who could not bear to deceive his neighbor, would not hold his post for a day. He would be a subject for Homeric laughter.

Moreover, if the question may be raised: what constitutes justice? may one not equally well ask: what constitutes veracity or its opposite? Where does the silence of indifference shade into purposed concealment, and the latter into what is unequivocally deception? At what point does deception blossom out into the unmistakable lie? One may take advantage of an accidental misunderstanding of what one has said; one may use ambiguous language; one may point instead of speaking. Between going about with a head of glass, with all one's thoughts displayed as in a show-case to every comer, and the settled purpose to deceive by the direct verbal falsification, there is a long series of intermediate positions. The commercial maxim that one is not bound to teach the man with whom one is dealing how to conduct his business, and the lawyer's dictum that the advocate is under no obligation to put himself in the position of the judge, obviously, will bear much stretching.

6. THE CODES OF COMMUNITIES: THE COMMON GOOD.—Nor are the facts which confront us less perplexing when we turn to that "regard to the common good" which Butler finds to be acknowledged and enforced by the primary and fundamental laws of all civil constitutions. Whether we look at the past or view the present, whether we study primitive communities or confine ourselves to civilized nations, we see that common good is not, apparently, conceived as the good of all men, however much the words "justice" and "humanity" may be upon men's lips.

Has any modern state as yet succeeded in incorporating in its civil constitution such provisions as will ensure to all classes of its subjects any considerable share in the common good? Slaves and animals, said Aristotle, have no share in happiness, nor do they live after their own choice. [Footnote: Politics, iii, 9.] The pervading unrest of the modern economic community is due to the widespread conviction that the existing organization of society does not sufficiently make for the happiness of all. Some states with a high degree of culture have not even made a pretence of having any such aim. They have deliberately legislated for the few. [Footnote: The "citizens" of the ancient Greek state were a privileged class who legislated in their own interest. Let the reader look into Plato's Laws and Aristotle's Politics and see how inconceivable the cultivated Greek found what is now the ideal of a modern democracy. "Citizens" should own landed property, and work it by slaves, barbarians and servants. They should not be "ignoble" mechanics or petty traders. Compare the spirit of Froissart's Chronicles, in the Middle Ages. See what Bryce (South America, New York, 1918, chapters xi and xv) says about the position of the Negro in our Southern states, and of the Indians in South American republics.]

Even where the avowed aim is the common good of all, states have assumed that some must be sacrificed for others. Certain individuals are selected to die in the trenches in the face of the enemy, that others may be guaranteed liberty and the pursuit of happiness. Grotius, the famous jurist of the seventeenth century, has been criticized for holding that a beleaguered town might justly deliver up to the enemy a small number of its citizens in order to purchase immunity for the rest. How far do the cases differ in principle? "Among persons variously endowed," wrote Hegel, "inequality must occur, and equality would be wrong." [Footnote: Hegel, The Philosophy of Right, translated by Dyde, London, 1896, p. 56.] Commonwealths of many degrees of development have recognized inequalities of many sorts, and have treated their subjects accordingly.

"For diet," said Bentham with repellent frankness, "nothing but self- regarding affection will serve." Benevolence he considered a valuable addition "for a dessert." He had in mind the individual, and he did injustice to individuals in certain of their relations. But how do things look when we turn our attention to the relations between states? Does any state actually make it a practice to treat its neighbor as itself? Would its citizens approve of its doing so?

The Roman was compelled to formulate a jus gentium, a law of nations, to deal with those who held, to him, a place beyond the pale of law as he knew it. [Footnote: See SIR HENRY MAINE, Ancient Law, chapter iii.] Many centuries have elapsed since pagan philosophers taught the brotherhood of man, and since Christian divines began to preach it with passionate fervor. Yet civilized nations today are still seeking to find a modus vivendi, which may put an end to strife and enable them to live together. The jus gentium, or its modern equivalent, is, alas! still in its rudiments.

To obviate misunderstanding at this point, it is well to state that, in adducing all the above facts, I do not mean to argue that it is abnormal and an undesirable thing that the scales of justice should, at times, be weighted in divers ways. I am not maintaining that the distribution of common good should proceed upon the principle of strict impartiality. What is possible and is desirable in this field is not something to be decided off-hand. But the facts suffice to illustrate the truth that the discrepancies to be found in the codes of different communities can scarcely be dismissed as unimportant details. They are something far too significant for that.