disapproval of it. The conception of justice as derivative from efficiency implies that judging the justice of a practice is always, in principle at least, a matter of weighing up advantages and disadvantages, each having an intrinsic value or disvalue as the satisfaction of interests, [90]irrespective of whether or not these interests necessarily involve acquiescence in principles which could not be mutually acknowledged. Utilitarianism cannot account for the fact that slavery is always unjust, nor for the fact that it would be recognized as irrelevant in defeating the accusation of injustice for one person to say to another, engaged with him in a common practice and debating its merits, that nevertheless it allowed of the greatest satisfaction of desire. The charge of injustice cannot be rebutted in this way. If justice were derivative from a higher order executive efficiency, this would not be so.
But now, even if it is taken as established that, so far as the ordinary conception of justice goes, slavery is always unjust (that is, slavery by definition violates commonly recognized principles of justice), the classical utilitarian would surely reply [189] that these principles, as other moral principles subordinate to that of utility, are only generally correct. It is simply for the most part true that slavery is less efficient than other institutions; and while common sense may define the concept of justice so that slavery is unjust, nevertheless, where slavery would lead to the greatest satisfaction of desire, it is not wrong. lndeed, it is then right, and for the very same reason that justice, as ordinarily understood, is usually right. If, as ordinarily understood, [92]slavery is always unjust, to this extent the utilitarian conception of justice might be admitted to differ from that of common moral opinion. Still the utilitarian would want to hold that, as a matter of moral principle, his view is correct in giving no special weight to considerations of justice beyond that allowed for by the general presumption of effectiveness. And this, he claims, is as it should be. The every day opinion is morally in error, although, indeed, it is a useful error, since it protects rules of generally high utility.
The question, then, relates not simply to the analysis of the concept of justice as common sense defines it, but the analysis of it in the wider sense as to how much weight considerations of justice, as defined, are to have when laid against other kinds of moral considerations. Here again I wish to argue that reasons of justice have a special weight for which only the conception of justice as fairness can account. Moreover, it belongs to the concept of justice that they do have this special weight. While Mill recognized that this was so, he thought that it could be accounted for by the special urgency of the moral feelings which naturally support principles of such high utility. But it is a mistake to resort to the urgency of feeling; as with the appeal to intuition, it manifests a failure to pursue the question far enough. [94]The special weight of considerations of justice can be explained from the conception of justice as fairness. lt is only necessary to elaborate a bit what has already been said as follows.
If one examines the circumstances in which a certain tolerance of slavery is justified, or perhaps better, excused, it turns out that these are of a rather special sort. Perhaps slavery exists as an inheritance from the past and it proves necessary to dismantle it piece by piece; at times slavery may conceivably be an advance [190] on previous institutions. Now while there may be some excuse for slavery in special conditions, it is never an excuse for it that it is sufficiently advantageous to the slaveholder to outweigh the disadvantages to the slave and to society. A person who argues in this way is not perhaps making a wildly irrelevant remark; but he is guilty of a moral fallacy. There is disorder in his conception of the ranking of moral principles. For the slaveholder, by his own admission, has no moral title to the advantages which he receives as a slaveholder. He is no more prepared than the slave to acknowledge the principle upon which is founded the respective positions in which they both stand. Since slavery does not accord with principles which they could mutually acknowledge, they each may be supposed to agree that it is unjust: it grants claims [96]which it ought not to grant and in doing so denies claims which it ought not to deny. Amongst persons in a general position who are debating the form of their common practices, it cannot, therefore, be offered as a reason for a practice that, in conceding these very claims that ought to be denied, it nevertheless meets existing interests more effectively. By their very nature the satisfaction of these claims is without weight and cannot enter into any tabulation of advantages and disadvantages.
Furthermore, it follows from the concept of morality that, to the extent that the slaveholder recognizes his position vis-a-vis the slave to be unjust, he would not choose to press his claims. His not wanting to receive his special advantages is one of the ways in which he shows that he thinks slavery is unjust. It would be fallacious for the legislator to suppose, then, that it is a ground for having a practice that it brings advantages greater than disadvantages, if those for whom the practice is designed, and to whom the advantages flow, acknowledge that they have no moral title to them and do not wish to receive them.
For these reasons the principles of justice have a special weight; and with respect to the principle of the greatest satisfaction of desire, as cited in the general position amongst those discussing the merits of their common practices, the principles of justice have an absolute weight. In this sense they are not contingent; and this is why their force is greater than can be accounted for by the general presumption [98](assuming that there is one) of the [191] effectiveness, in the utilitarian sense, of practices which in fact satisfy them.
If one wants to continue using the concepts of classical utilitarianism, one will have to say, to meet this criticism, that at least the individual or social utility functions must be so defined that no value is given to the satisfaction of interests the representative claims of which violate the principles of justice. In this way it is no doubt possible to include these principles within the form of the utilitarian conception; but to do so is, of course, to change its inspiration altogether as a moral conception. For it is to incorporate within it principles which cannot be understood on the basis of a higher order executive decision aiming at the greatest satisfaction of desire.
It is worth remarking, perhaps, that this criticism of utilitarianism does not depend on whether or not the two assumptions, that of individuals having similar utility functions and that of diminishing marginal utility, are interpreted as psychological propositions to be supported or refuted by experience, or as moral and political principles expressed in a somewhat technical language. There are, certainly, several advantages in taking them in the latter fashion.21 For one thing, one might say that this is what [100]Bentham and others really meant by them, as least as shown by how they were used in arguments for social reform. More importantly, one could hold that the best way to defend the classical utilitarian view is to interpret these assumptions as moral and political principles. It is doubtful whether, taken as psychological propositions, they are true of men in general as we know them under normal conditions. On the other hand, utilitarians would not have wanted to propose them merely as practical working principles of legislation, or as expedient maxims to guide reform, given the egalitarian sentiments of modern society.22 [192] When pressed they might well have invoked the idea of a more or less equal capacity of men in relevant respects if given an equal chance in a just society. But if the argument above regarding slavery is correct, then granting these assumptions as moral and political principles makes no difference. To view individuals as equally fruitful lines for the allocation of benefits, even as a matter of moral principle, still leaves the [102]mistaken notion that the satisfaction of desire has value in itself irrespective of the relations between persons as members of a common practice, and irrespective of the claims upon one another which the satisfaction of interests represents. To see the error of this idea one must give up the conception of justice as an executive decision altogether and refer to the notion of justice as fairness: that participants in a common practice be regarded as having an original and equal liberty and that their common practices be considered unjust unless they accord with principles which persons so circumstanced and related could freely acknowledge before one another, and so could accept as fair. Once the emphasis is put upon the concept of the mutual recognition of principles by participants in a common practice the rules of which are to define their several relations and give form to their claims on one another, then it is clear that the granting of a claim the principle of which could not be acknowledged by each in the general position (that is, in the position in which the parties propose and acknowledge principles before one another) is not a reason for adopting a practice. Viewed in this way, the background of the claim is seen to