justice which gives each one his share； is confronted in the
field of social policy by some other ideas。 These are in the
first place the idea of community； which allots to the whole that
which belongs to it； which regards the promotion of the whole
more than the rights of the parts； in the secund place the idea
of benevolence； which in its consciousness of community gives
more to the poor man than he can justly demand； finally； the idea
of liberty； which permits each part to act freely； placing
numerous limits upon justice and the community。 That this results
in many restrictions upon the exercise of justice we will here
only suggest； not demonstrate。 But the fact always remains that
the constantly growing and developing conceptions of justice
extend their influence daily and hourly into the activity of
practical life； that in the form of moral and religious sense of
duty； social custom and actual law； they regulate and modify rude
forces and selfish impulses。 The conflict between interest and
moral ideas will of course never cease； but only be moderated。
All human life only exists under the presumption of this never
ceasing internal combat。 There are always claims of economic
justice which appear to be only bold ideal dreams； but there are
always many which have conquered in life； or at least have
obtained for themselves the majorities； the leading powers。 And
to them the more refined economic culture owes its humane
character。
Practically the most important form in which these ideas
conquer is that of custom and of law。 Without these formal means
the conceptions and judgments of justice cannot easily be
realized； cannot easily be transmitted from generation to
generation。 Custom and law lend permanence and stability to ideas
of morality； and effect the agreement of men about that which
ought to be。 From the moral disposition of men arise rules of
custom； which as distinct rules of life curb the wild play of
passions and impulses。 Custom is that which we regularly
practice； originating in experience and recollection； in the
judicious conception of common purpose and in moral reflection。
As crude as custom may。 originally be； its rule is always an
improvement in comparison with the purely natural play of
instincts。 It appears to the growing generation the appropriate；
necessary； just and obvious condition of all intercourse； all
division of labor； all social existence。 As an independent power
it confronts the individuals and their impulses and becomes the
foundation of all morals； all religion； as well as all rights and
all institutions。
Originally inflexible and relentless in itself custom later
becomes more variable in individual morality； adapts itself to
conditions； though it still exacts the more noble and sublime； in
the positive law； which is gradually separated from custom； it
becomes a rule； demanding less； but for this 〃less〃 a much
stricter obedience。 Custom in higher stages of culture only
prevails through fear of reproach； of contempt； of social
ostracism。 Formal law only chooses the rules of social life most
important for common interest； but enforces their observation；
when necessary； through the physical compulsion which the whole
can exercise over the individual。
Internally of the same nature as morals and custom； i。e。；
originating equally in social ideals and primarily in the idea of
justice； the law adopts through its external； formal nature the
character of something independent； in consequence of which
independence the law can only uphold justice within its own range
and can only execute it in a certain sense。
To the essence of right and law； as it has been evolved from
religion； morals and customs by an experience of many thousand
years； belongs above all the uniform and sure execution of the
rules which have once been confirmed universally and uniformly。
Without uniform application； without a sure administration； law
does not remain law。 To achieve this is extraordinary difficult；
on account of the manifold complexity of life。 The goal we can
only reach by limiting ourselves to that which is of the most
importance and by long； laborious； logical brain…work； which
reduces the rules of law to a few clear and universally
intelligible sentences。 The exercise of the judicial power is
raised by this quality above the level of personal feelings and
changing disposition； laws are guided by it to a safe and uniform
application。 The more severely law interferes； subordinates
details； proceeds radically and relentlessly； the more important
this formal criterion grows。 The uniform and just application of
law becomes so important that the imperfect law whose just
application is secured is preferred to the more perfect and
materially more just law whose application varies； becomes
uncertain and thus unjust everywhere or in the hands of judges
and officials of to…day。 Nearly。 all positive law； therefore； and
especially written law； which the thinking mind generates by the
machinery of legislation； which has not as customary law been
derived from use； is inflexible； feeble； confined to outward；
clearly visible marks； it cannot regard individualities and their
natures； it deals with rough averages。 Instead of testing
individuals； for example； it divides adults and minors according
to a fixed age； approximately correct for the totality； but more
or less arbitrary in regard to the individual。 It calls all adult
men to the polls； not because they are really of equal importance
to the commonwealth； but because the application of every more
complicated distinction would result practically in greater
injustices。 Thus law becomes often inequitable and materially
unjust； not because formal justice is superior； but because it is
more easily attained in the existing stage of civilization。 This
gives rise to thousands of conflicts between material and formal
… justice； which are so often decisive for the practical
questions of distribution of wealth and incomes。
If there is any demand of justice which it is desired to
introduce into our institutions through the channel of ordinary
reform by positive law； it is not only necessary that the demand
be recognized and desired by the best as right； that it must have
become custom in certain places； that it must have overcome the
resisting powers of egoism； of listless indolence which clings to
tradition； that it should have triumphed over the eventual
obstruction of the other ethical ideas； which tending toward
other goals； often may be an obstacle； that it should have become
a dogma of ruling parties and statesmen。 No； it must also have
evolved the qualities of a practicable formal law； it must have
reached fixed boundaries； clear characteristics； determined
qualities and proportions； it must have traversed the long
journey from a conception of right to a clearly defined and
limited provision of law； the fundamental judgments of value must
be condensed to a fixed conventional scale； which； as a simple
expression of complicated and manifold conditions still grasps
their average justly。 In short the mechanism of positive law
limits every execution of material justice。 We have our formal
right only at the expense of a partial material injustice。
A demand of justice in rewarding great inventors can to…day
only become positive law in patent legislation； or in the public
arrangement of a system of premiums； in which the method of
execution is just as important as the principle。 A demand of
justice in regard to a progressive income tax can count upon
sympathy only when the demand is based on definite figures which
correspond to the average feeling of right of to…day。 The demand
of justice that the employer should provide better for his
laborers becomes practicable； when we demand in detail and
definitely that the employer carry this or that responsibility
for accidents； that he put such and such a contribution into the
benefit fund； that he accept the verdict of umpires with regard
to wages。 That the laborers should share in the profits of the
enterprise can be discussed as a legal measure only when definite
experience shows the possibility of a just execution。 Otherwise
such a law； like many other well…meant propositions for the
improvement of the condition of the lower classes； would； in
consequence of the violation of formal justice； lead to
arbitrariness； to favoritism； to the discontent of the classes
concerned。 This is confirmed by all deeper knowledge of the
results of the administration of our poor laws。 The poor law is
the most important piece of socialism which the German social
organization contains。 It is a piece of socialism which we could
not spare for the time being； because we do not know a better
substitute； nor yet how to meet otherwise by more perfect
institution is the inevitable demand of justice； that every
fellow…being be protected from starvation。 The drawback of this
poor law is the absolute impossibility of enforcing it in a
formally and materially just way。 Arbitrariness； chance； red tape
govern it； and therefore the assistance given has in many cases
such unfavorable psychological effects； leading to laziness