Justice

Justice is for Hume both a developed notion, laden with the trappings of a fully developed moral and legal system, and a basic virtue. In being the latter justice is, in fact, the foremost of all the artificial virtues whose discussion takes up Part ii of Book III.

Hume starts by emphasising “that all virtuous actions derive their merit only from virtuous motives, and are consider’d merely as signs of those motives.”¹ Motive is the prime determinant of virtue. Yet since Hume conceives of justice in layers, with the fundamental core layer being basic rules of stable possession,² the obvious search is to find a motive for justice, for repaying a loan, for respecting property. It would always be impermissible for Hume to say without more that the motive for acting virtuously is regard for the morality of the action {i.e. for duty).³ For one thing, there must be distinct and prior natural motives if the explanation is to be in causal or empirical, rather than Nagelian or Kantian, terms.⁴ For another, the motive for justice cannot usefully be explained as the regard for justice. To say that an action is just because it proceeds from a motive to be just merely begs the question of the source of this motive towards justice. It pre-supposes justice, a system of rules of stable possession, already to be in existence and already to be a virtue. The problem therefore remains. What natural motive could lead to the acceptance of the rules of justice in the first place? Hume dismisses the possibility that humans behave justly (i.e.

Hume therefore frames the problem more sharply by positing mankind “in his rude and more natural condition.”⁵ Why would anyone leave another in possession of her goods or pay back a loan in some “suppos’d state of nature''?⁶ And if there be no natural, instinctive motives to do so, how is the passage made from a state where there are no rules of justice (but otherwise humans have the general qualities they do currently) to one where there are? Hume first looks to see if there might be some natural motive which could lead directly to acceptance of the rules of justice. But neither private interest (i.e. self-interest)⁷ nor the limited benevolence we naturally show to lovers, relations, friends and benefactors⁸ nor public interest (if in fact this generally is a natural motive)⁹ nor benevolence for the interests of other parties concerned¹⁰ can account for the establishment of rules of justice. These motives either oppose justice on numerous occasions or are manifestly too weak. Quite simply, no natural, implanted, original human motive can explain how it is that humans approve of and perform just acts. Hume’s answer is:

that the sense of justice and injustice is not deriv’d from nature, but arises artificially, tho’ necessarily from education, and human conventions.¹¹

Hume’s convention-based picture of the origins of justice in Book III ii 2 has been widely discussed.¹² I do not intend to involve myself in detailed exegetical analysis. My discussion will have two immediate objectives in view. Firstly, I wish to assess the part played by reason in the escape from a justice-free state of nature.

Hume imagines humans with all their existing instinctual tendencies and dispositions. Self-interest or self-love is the predominant ‘fact’ which must be recognised although people are not completely selfish.¹³ Limited benevolence or confined generosity, the natural result of family living (which itself is the product of the instinctive sexual appetite and concern for offspring), exists side-by­side with self-love but it is a limited, biased benevolence whose strength tends to vary directly with the closeness of the relationship.¹⁴ Hume explores the possibility¹⁵ that experience of the advantages of family living might lead to some sort of a natural escape to large social living but considers such an explanation to fail. The model of warring individuals would merely be replaced by the model of warring families.

Nor is human nature the only difficulty. Not to be overlooked are the “outward circumstances”'¹ that goods are scarcer than wants and can be easily carried off by others. (These ‘circumstances’ are obviously taken from existing social life and posited back into the supposed state of nature. It seems, moreover, on the evidence to hand, that wants outpace goods regardless of a society’s wealth.)

Thus, with hindsight, the features which seem to stand in the way of an escape to justice, to basic rules of stable possession and ultimately large-scale social living are:

1) self-love and limited, related-to-self benevolence;

2) scarcity of goods compared to needs.¹⁷

Had 1) not been the case, had men been wholly benevolent by nature, the result would be some sort of “communist utopia, which corresponds to Hobbes’s description of the life of bees and ants, among whom ‘the common good differeth not from the private.’”¹⁸ A universal, completely self-less regard for others would make redundant any need for rules of justice.

Now Hume admits that both the communist utopia and the golden age are idle fictions,²⁰ not unlike the violent, warring, and justice-less fiction of a state of nature.²¹ It may be regarded as certain:

that ‘tis only from the selfishness and confin’d generosity of men. along with the scanty provision nature has made for his wants, that justice derives its origin.²²

And as features 1) and 2) do exist it is only by means of a fiction that they can be wished away. Hence, given the observable facts of only a partially relieved self-interest together with scarcity, how does Hume say the escape is made?

It is no easy task for a group of largely selfish people to arrive at justice, at a system of constraints on conduct. Regard to public interest or a strong, extensive benevolence cannot be the first or major source of our observation of the rules of justice since such a strong benevolence would make such rules otiose from the start. Nor could the foundation of justice be demonstrative, narrow-sense reason because the content of justice is not a function of the relation of ideas. That content is contingent, not eternal, immutable or universally obligatory whatever be the factual conditions. ‘“Twas therefore a concern for our own, and the publick interest, which made us establish the laws of justice”,²³ says Hume. But how?

In the state of nature constraint in regard to goods or persons would not be a virtue but a disability to survival. The dilemma is this: People are poised at the entrance to the passage to civilization. In retrospect, it would be in everyone’s interests for all people to join in and create binding justicial and wider moral rules.

Hume’s solution to how the rules of justice are established as practices relies on self-interest being re-directed towards justice. Also needed is the experience of family living together with causal reason. The dilemma dissolves by way of a convention “not of the nature of a promise”²⁶ but rather like the convention by which two men rowing a boat pull together without having made any promises. Such a convention “arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it.”²⁷ It is analogous, says Hume, to the origins of language and to the special value attributed to gold and silver by convention.

Hume’s actual discussion of the convention leading on to the remedy of justice is surprisingly short. It begins on page 489 and effectively concludes on page 490. Mackie fleshes it out somewhat further.²⁸ However it is a brilliant insight that Hume offers in these two short pages. He provides an apercu into conventionalist solutions, one which David Lewis uses to develop a full conventionalist account of the origins of language in his book Convention^ Much of what Lewis says there would also apply to Hume’s account of justice. My intention in this book, however, does not range quite so far afield. Instead I want to return to the two objectives 1 set out right after footnote 12 above in order now to consider the coherence of Hume’s conventionalist account of justice­building as well as to assess the role of reason in that account. I will argue that Hume’s explicitly ahistorical account of justice, the pre­eminent artificial virtue, emerging ever so gradually from reciprocal conventions, is coherent. Where small family living is natural, the result of original or inherent principles, life in society is created artificially by convention. I will say this narration is coherent while recalling that Hume was attempting to explain all of human morals, aesthetics and virtues in a Newtonian, natural-causal way. It is as one component of his wider empirical explanation of human nature and conduct that I say Hume’s account of the escape to justice is coherent.

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