In the same way as the contract by mutual consent sprang from the ritual and the real contracts, so in turn did a new form begin to grow out of the consensual. This was the just contract, objective and equitable. Its existence was revealed when the rule appeared whereby the contract is null and void when one of the parties has given his consent only under pressure of obvious constraint. The society declines to approve a declaration of will which has been got only under duress. How does this come about? We have seen how slight the foundation is for attributing the legal consequences of constraint to the fact that it suppresses the free will of the agent. Should this word be taken in its metaphysical sense? Then, if man is a free agent, he is free to resist every kind of pressure exerted on him; his freedom remains unimpaired whatever the duress he may be exposed to. Is the meaning of an act of free will simply a spontaneous act and are we to understand that consent implies that the will in consenting does so spontaneously? How often it happens that we consent because we are tied by circumstances—compelled by them, without any option of choice. And yet, when it is things and not persons that exert this constraint over us, a contract made in these circumstances is binding. Under the pressure of illness, I have to call in a certain doctor whose fees are very high: I am just as much bound to accept them as if I had a pistol at my head. We might quote many other instances. There is always constraint in any acts we carry out and in any consent we give, for they are never exactly in line with our wishes. When we say contract we mean concessions or sacrifices made to avoid more serious ones. In this respect there are only differences of degree in the form that contracts take.
The true reason why contracts got under pressure have come to be condemned is that they cause injury to the contracting party who suffered the constraint. For it has compelled him to yield what he did not wish to, and it takes from him by force something that he owned. It is a case of extortion. What the law refuses to approve is any act having the effect of making a man suffer who might not have deserved it, that is, an unjust act. The law disallows this because the sympathy we all feel in our fellow-man rouses our opposition to suffering being inflicted on him; that is, unless he has earlier committed some act that dilutes our sympathy and may even turn it into antipathy. It is because the consent has been grievous in its effect that the society considers it null and void: that the individual has not, in a true sense, been the cause of the consent he has given is not the reason. And thus the validity of the contract becomes subordinate to the consequences it may have for the contracting party.
The injustices inflicted by constraint are, however, not the only ones that may be done in the course of contractual relations. They are only a variety. The one party, by knavery or excessive shrewdness or by knowing how to make adroit use of some unlucky turn in the affairs of the other, may bring him to consent to an exchange that is utterly unjust; that is, to consent to give his services or things he may own against a payment lower than their value. We know of course that in every society and in all ages, there exists a vague but lively sense of the value of the various services used in society, and of the values, too, of the things that are the subject of exchange. Although neither of these factors is regulated by tariff, there is, however, in every social group a state of opinion that fixes its normal value at least roughly. There is an average figure that is considered as the true price, as the one that expresses the true value of a thing at a given moment.
How this scale of values is arrived at is not for the moment our concern. All sorts of causes enter into the way it has evolved: that is, a sense of the true usefulness of things and services, of the labour they have cost, of the relative ease or difficulty in procuring them, traditions and prejudices of every kind, and so on. It remains true—and this alone matters to us for the time being—that this scale is certainly a real one, and that it is the touchstone by which the equity of the exchanges is to be judged. This normal price, of course, is an ideal price only: it very rarely coincides with the real price, which naturally varies according to circumstance; there is no official price-list to apply to every individual case. It is only a fixed point, around which there must inevitably be many fluctuations; but these cannot go beyond a certain range in any direction without seeming abnormal. We might even say that the more that societies evolve the more too does this structure of values become stable and regulated and unaffected by any local conditions or special circumstances, so that they come to assume an objective form. When every town and almost every village had its own market, the price scale varied according to the locality: each had the scale and tariff that suited it. These variations left far more lee-way to a shrewd personal ingenuity and calculation. This is why bargaining and individual prices are one of the characteristic features of petty trading and small-scale industry. The more we advance, on the other hand, the more do prices come to have an international basis: and this through the system of stock exchanges and controlled markets whose action covers a whole continent. Formerly, under the system of local markets, there had to be negotiating and a battle of wits, to know on what terms an object could be had; to-day, we only have to open a well-informed journal. We are becoming increasingly used to the idea that the true price of things exchanged should be fixed previous to the contract and be in no way governed by it.
Any contract, however, that diverges from these prices too greatly must necessarily appear as unjust. An individual cannot exchange a thing for a price lower than its value without suffering a loss that cannot be made good or justified. It is just as if the amount unlawfully withheld were extorted under threat. In fact, we hold that there is a price that is due to him, and if he is denied it without cause our conscience rebels for the reason we mentioned before. The loss of standing inflicted on him, if he has not deserved it, wounds our sense of sympathy.
It hardly matters that he does not resist the indirect constraint put upon him and that he may even voluntarily accept it. There is something about this exploitation of one man by another that offends us and rouses our indignation, even if it is agreed to by the one who suffers it and has not been imposed by actual constraint. It is the same thing, of course, if the exchange is agreed at a price higher than the true value, for then it is the buyer who has been exploited. We see here that the notion of constraint recedes more and more into the background. (A just contract is not simply any contract that is freely consented to, that is, without explicit coercion; it is a contract by which things and services are exchanged at the true and normal value, in short, at the just value.)
Such contracts must seem to us immoral: no one will deny it. For contracts to be accepted as morally binding, we have come to require not only that they should be by consent, but that they respect the rights of the contracting parties. The very first of these rights is that things and services should not be given except at the fair price. We disapprove any contract with a ‘lion’s share’ in it, that is, one that favours one party unduly at the expense of the other; therefore we hold that the society is not bound to enforce it or, at least, ought not to enforce it as fully as one that is equitable, since it does not call for an equal respect. It is true these views, with their source in the conscience, have so far remained moral ones and have not yet greatly affected the law. The only contracts of this sort that we absolutely decline to recognize are contracts of usury. Even here, the just rate, that is, the rate for lending the money, is fixed by law and may not exceed it. For various reasons we need not examine, this particular form of unjust exploitation is quicker to touch us and to rouse a deeper revulsion of conscience, perhaps because here the process is rather more physical and tangible.
Quite apart from the contract of usury, all regulations that are introduced in industrial law bear witness to the same need. These are designed to prevent the employer from abusing his position to get labour out of the workman on terms too much against his interests, that is to say, on terms that do not equate his true value. This is why we get proposals, whether justified of not, to fix a firm minimum wage. These are evidence that not every contract by consent is in our view one that is valid and just, even when there has been no actual coercion. In default of any regulations for a minimum wage, there are now provisions in the laws of several European countries that require the employer to insure the workman against sickness, old age and accidents. It was whilst this mood prevailed that our recent law was passed on industrial accidents. It is one of the many means employed by the legislative assembly to make the contract of labour less unjust. Wages are not fixed, but the employer is obliged to guarantee certain specific advantages to his employees. Protests are made and it is said this really amounts to giving privileges to the worker. In one sense this is quite true, but these are meant to counterbalance in part those other privileges enjoyed by the employer which leave him free to undervalue at will the services of the worker. I will not debate the usefulness attributed to these practices. It may be they are not the best or they may even work against the aim in view. No matter. It is enough to recognize the moral impulses that inspired them and whose reality they prove.
Everything goes to shew that we are not at the end of this development and that our demands on this score are rapidly growing. The feeling of human sympathy, indeed, which is their determining cause, is bound to gather greater force as it takes on a more egalitarian character. We are still inclined, under the influence of all kinds of prejudices inherited from the past, not to consider men of different classes from the same point of view. We are more sensitive to the distresses and undeserved hardships that a man of a superior class may undergo, who has important duties, than to the distress and burdens of those given up to humbler duties and labours. Everything leads us to suppose that this discrepancy in our way of sympathizing with different classes of people will tend gradually to fade away; that the misfortunes of one class will no longer seem more deplorable than the distresses of the other; that we shall consider them both as equally painful, since both are aspects of human suffering. Therefore we shall now be trying to take stronger measures to ensure that the contractual system shall hold an even balance between the two sides. We shall demand greater justice in contracts. I will not go so far as to say that the day will ever come when this justice will be absolute, when values will be exactly equated as between services exchanged. It might be said, and with reason, that it is not possible to carry it to the extreme limit. Are there not services which are beyond any adequate remuneration? Moreover, only a rough attempt can be made to make things square absolutely. But certainly, the balance of values that exists to-day still does not satisfy our present ideas of justice, and the more we advance the more we shall try to get near to the correct ratio. No one can set any limits to this development.
Now the supreme obstacle it comes up against is the institution of inheritance. It is obvious that inheritance, by creating inequalities amongst men from birth, that are unrelated to merit or services, invalidates the whole contractual system at its very roots. What indeed is the fundamental condition for ensuring the reciprocity of contracted services? It is this: for each to hold his own in this kind of duel from which the contract issues, and in the course of which the terms of exchange are fixed; the weapons of the contracting parties must match as nearly as possible. Then, and then alone; there will be neither victor nor vanquished; this means that things will be exchanged so as to balance exactly and to be equal in value. What the one receives will be equivalent to what he gives and vice versa. Conversely, a privileged contracting party could make use of the advantage he holds to impose his will on the other and oblige him to give the thing or service being exchanged at a price below its true value. If, for instance, the one contracts to obtain something to live on, and the other only to obtain something to live better on, it is clear that the force of resistance of the latter will far exceed that of the former, by the fact that he can drop the idea of contracting if he fails to get the terms he wants. The other cannot do this. He is therefore obliged to yield and to submit to what is laid down for him.
Now inheritance as an institution results in men being born either rich or poor; that is to say, there are two main classes in society, linked by all sorts of intermediate classes: the one which in order to live has to make its services acceptable to the other at whatever the cost; the other class which can do without these services, because it can call on certain resources, which may, however, not be equal to the services rendered by those who have them to offer. Therefore as long as such sharp class differences exist in society, fairly effective palliatives may lessen the injustice of contracts; but in principle, the system operates in conditions which do not allow of justice. It is not only to cover certain particular points that ‘lion’s share’ contracts can be entered into, but the contract represents the ‘lion’s share’ system as far as any relations of the two classes are concerned. It is the general lines on which the services of those not favoured by fortune are assessed that seem unjust, because the conditions stand in the way of their being reckoned at their true social value. The inherited fortune loads the scales and upsets the balance. It is in opposition to this inequitable assessment and to a whole state of society that allows it to happen, that we get the growing revolt of men’s conscience. It is true that over the centuries, the injustice could be accepted without revolt because the demand for equality was less. To-day, however, it conflicts only too obviously with the attitude which is found underlying our morality.
We begin to appreciate what a signal event it was when this that we call the just contract came on the scene, and what widespread effects this concept was to have. The whole institution of property became transformed, since one of the sources of acquisition, and a principal one at that—I mean inheritance—stood condemned by this very concept. But it is not in this indirect and negative way alone that the development of contractual right tends to affect the right of property: that right is affected in a direct way. As we have said, justice demanded that services given or exchanged should not be remunerated below their value. This principle calls forth another, its corollary: that any value received must equate a service rendered. It is of course patent that in so far as the one value falls short of the other, the privileged individual can only have secured the excess value he may enjoy at the expense of someone else. This excess from which he benefits must have been the work of someone other than himself, who has been unlawfully deprived of it. If he is to receive more, that is, more than he is entitled to, another must receive less. Hence, we get this principle: the distribution of things amongst individuals can be just only if it be made relative to the social deserts of each one. The property of individuals should be the counter-part of the services they have rendered in the society. In this principle there is nothing that offends those humane feelings which are at the heart of this particular branch of morals. For this sympathy is liable to vary in depth according to the deserts of the individual as a social being. We have greater sympathy for those who serve the collectivity better and our goodwill towards them is all the greater; here nothing prompts us to protest if they are better treated—(with certain reservations we shall touch on). Again, a distribution of property on this pattern is closely in line with the interests of the society. For the society is concerned with seeing that things should be in the most capable hands.
The working of the principle, then, that lies at the foundation of the contract conforming to equity extends beyond the contractual right, and tends to become the basis of the right of property. As things are, the primary distribution of property is according to birth (institution of inheritance). The next stage is, that property originally distributed in this way is exchanged by contracts. But it is by contracts which, inevitably, are in part unjust as a result of an inherent state of inequality in the contracting parties, because of the institution of inheritance. This fundamental injustice in the right of property can only be eliminated as and when the sole economic inequalities dividing men are those resulting from the inequality of their services. That is why the development of the contractual right entails a whole re-casting of the morals of property. But close heed should be given to the way in which we summarily express this principle common to real right and contractual right. We are not going to say that property derives from labour, as if there were a kind of logical necessity for the thing to be attributed to the one who laboured to make it, as if labour and property were one and the same. There is nothing about the bond linking the thing with the person, as we described it, that can be analysed; there is nothing about labour that compels us to infer that the thing to which this labour has been applied derives from the workman. We have already shown all the unreason of such a deduction. It is the society that makes the synthesis of these two heterogeneous terms, property and labour. It is the society that does the allocation of property and it proceeds to allocate and distribute, according to the sentiments it has for the individual and moved too, by the way it calculates the value of his services. Since this way of calculating may be governed by principles that vary greatly, it follows that the right of property is in no wise something defined once and for all, a kind of immutable concept. No, on the contrary, it is something that can go on evolving indefinitely. Even the principle just mentioned can vary, more or less, and is therefore capable of developing. (We shall be reverting to this point.) At the same time, this is how we escaped the fallacies the classical economists and the socialists fell into, when they identified labour with property. Such an identification has a tendency indeed to make the output of labour take precedence over quality. But as we have said, it is not the amount of labour put into a thing which makes its value; it is the way in which the value of this thing is assessed by the society, and this valuation depends, not so much on the amount of energy expended, as on the useful results it produces, such at least as they are felt to be by the collectivity, for there is a subjective factor there which cannot be ruled out. An idea of genius, flowering without effort and created with joy, has greater value and merit than years of manual labour.
This agreed principle, although it is now graven in the conscience of civilized nations, is still not formally recognized by the law, and it raises a practical question. What reform could make it a reality in law? One primary reform is possible at once and almost without any transition. This is the discontinuance of inheritance ab intestat or by next of kin and above all of obligatory succession, allowed by our Code of Civil Law in the case of direct descent. We have seen moreover that inheritance ab intestat, a survival of the old right of family joint ownership, is to-day an archaic survival and without justification. It no longer corresponds to anything in our ethics and could be abolished without disturbing the moral structure of our societies in any way. As far as testamentary inheritance goes, it seems a more delicate matter. It is not because it is more easily reconciled with the principle we have raised. It offends the spirit of justice as much as inheritance ab intestat does and creates the same inequalities. Nowadays, we no longer allow a man to bequeath by will the titles or rank he acquired or the offices held in his lifetime. Why should property be any the more transferable? The position in society we have succeeded in attaining is at least as much our own creation as our fortune. If the law prohibits our disposing of the first, why should it be any different concerning the second—that is, property? Such a limitation to the right of disposal is in no way an attack on the individual concept of property—on the contrary. For individual property is property that begins and ends with the individual. It is the hereditary transference, whether by a man’s Will or otherwise, that is contrary to the spirit of individualism. There are no real difficulties on this point, except when it is a question of testamentary inheritance in direct descent. Here a kind of conflict arises between our sense of justice and certain family customs that are very deeply rooted. It is clear that at the present day the idea that we could be prevented from leaving our possessions to our children would meet with very lively resistance. For our work is done quite as much to ensure their happiness as our own. That does not mean that this state of mind does not derive very closely from the present structure of property. Let us grant that there is a transfer by inheritance and in consequence an initial inequality in the economic status of individuals at the time they enter the life of the society. We then attempt to make this inequality have as little disadvantage as possible for the human beings with whom we have the closest ties; we go further, and try to make it even a positive advantage. Hence our anxiety to work for them. But if equality were the rule, this need would be of far less concern to us. For the peril to them of facing life with no resources but their own would have disappeared. This peril comes solely from certain people being at present endowed with initial advantages, a fact that places those not so endowed in a position obviously inferior. All the same, it is not unlikely that something would always remain of the right to dispose of property by will. The old institutions never disappear entirely; they only pass into the background and fade away by degrees. This one has played too great a role in history for it to be conceivable that nothing of it should survive. It would only survive, however, in a weakened form. We might for instance imagine that every head of a family would have the right to leave to his children specified portions of the heritage. The inequalities that would then continue would be so slight as not to seriously affect the working of the contractual right.
And so, it is beyond us to make any very accurate forecast on this subject, for one factor needed in making it is at present lacking. To whom, indeed, would the wealth go to that each generation would leave behind without an owner as it left the scene? When there were no longer any heirs either by birth or by right, who would then inherit? The State? It is clearly impossible to concentrate such vast resources in hands that are already so blundering and wasteful. Alternatively, a periodic sharing-out of these things amongst individuals would have to be made, or at the very least of certain things, such as those essential to labour, of the land, for instance. Surely we can imagine some form of auction, when things of this kind would be knocked down to the highest bidder. But it is obvious that the State is too far removed from things and individuals to be able to carry out tasks so vast and so complex with any competence. There would have to be secondary groups, more limited in range and closer to the facts in detail, to be able to fulfil this function. We could hardly choose any better suited to the task than the professional groups. They are well equipped to manage any particular set of interests and could branch out into all parts of the country; at the same time they would take into account the regional differences and purely local affairs. They would satisfy all the conditions for becoming in a sense, in the economic sphere, the heirs of the family.
The family was in the past better suited to ensure the continuity of economic life as well, because it was a small group in direct touch with things and people and also itself endowed with a genuine continuity. To-day this continuity no longer exists. The family is all the time in process of breaking up; it lasts only for a period and it may die out here and there. It no longer has sufficient power to link the generations one to another, in the economic sense. But only a secondary, fairly small medium can be a substitute. This can and should have greater scope than the family because the economic interests themselves have grown in importance and are found to touch every part of the country. It is not possible for any central organ to be everywhere present and everywhere active at the same moment. All these points, then, persuade us in favour of the professional groups.
Beyond these practical conclusions, this study of contractual right leads us to put forward an important point of theory. In the sphere of ethics we have just been examining, that is, in the morals of human behaviour, we usually distinguish between two very different varieties of duty. In one, they are known as duties governed by justice and in the other, they are duties governed by charity. Between the two, it is agreed there is a kind of hiatus or break in continuity. They seem to derive from ideas and sentiments that have nothing in common. In justice, there is a further division as between distributive justice and commutative justice. The second of these is the justice that governs or ought to govern exchanges, to the end that we receive always a just recompense for what we give. The first relates to the way the laws are applied and office and rank allocated or shared out by the society amongst its members. The result of all this is that there are only differences of degree amongst these various layers of morals and that they are in line with one and the same collective consciousness and with one and the same collective sentiment taken at different periods in the development of these.
To begin with, as far as a distributive justice and a commutative justice are concerned, we have seen that they mutually affect one another and are mutually involved. If exchanges are to be equitable, they have to be justly balanced, and of course the distribution of things, even if it had followed all the rules of equity to begin with, would still not remain just, if exchanges could be contracted on unjust terms. Both are the sequel in law of the same moral sentiment—the sympathy that man has for man. It is only that this sympathy is considered in both cases from two different aspects. In the one, the feeling is against the individual giving more than he receives or rendering services that are not rewarded at their true value. In the other case, this same feeling requires that there shall be no social inequalities as between one man and another, except those that reflect their own unequal value to society. In a word, this sentiment, in both its aspects, tends to eliminate or strip away from all social sanctions every kind of physical and material inequality—all inequalities that derive from the accident of birth or from family status, leaving only those of merit.
If justice alone is in question, these inequalities of merit will still persist. But where human sympathy is concerned, even these inequalities can not be justified. For it is man as a human being that we love or should love and regard, not man as a scholar of genius or as an able man of business, and so on. … Essentially, are not these inequalities of merit fortuitous, too? For these all men are born with—by temperament, and it seems hardly just to make them bear responsibility for them. To us it does not seem equitable that a man should be better treated as a social being because he was born of parentage that is rich or of high rank. But is it any more equitable that he should be better treated because he was born of a father of higher intelligence or in a more favourable moral milieu? It is here that the domain of charity begins. Charity is the feeling of human sympathy that we see becoming clear even of these last remaining traces of inequality. It ignores and denies any special merit in gifts or mental capacity acquired by heredity. This, then, is the very acme of justice. It is society, we find that is coming to exercise complete dominion over nature, to lay down the law for it and to set this moral equality over physical inequality which in fact is inherent in things.
However, we see that this feeling of human sympathy only comes to have this depth in some rare forms of consciousness, the highest; consciousnesses remain as a rule too feeble to go the whole way in their logical development. We have not yet reached the day when man can love all his fellow-creatures as brothers, whatever their faculties, their intellect or their moral values. Nor has man reached the stage when he has shed his egotism so successfully that it is no longer necessary to put a tentative price on merit (a price likely to decline), with the purpose of stimulating it (the merit) and of keeping the price steady. This is what makes a complete levelling to equal values impossible to-day. On the other hand, it is certain that the depth of feeling of human fraternity will go on increasing, and that the best amongst men are capable of working without getting an exact recompense for their pains and their services. This is how it comes about that we go on trying to soften and tone down the effects of a distributive and commutative justice which are too strictly reckoned, which, that is, in reality remain unachieved.
This is why, as we go on, charity, in its true meaning, becomes ever more ?significant (illegible) and so it ceases, as it were, to be optional and to go beyond what it need be, and becomes instead a strict obligation, that may be the spring of new institutions.