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When we consider that Hardy makes a point to judge Tess's life at the end of the novel, we could safely assume that Hardy feels the following way:
First, he would agree that Tess's life has been filled with unfairness and unhappiness. Second, he knows that she is a pure woman whose wrong doings are actually caused by the callous treatment of others. Third, he agrees that her death is probably the best thing that could have happened to her, as death can liberate her from the "sport", or "game" that fate seems to always have against her.
We can find this fact at the end of the novel, when the narrator makes a statement after Tess is found and executed for the stabbing death of Alec. In this statement, the word "justice" has quotation marks because it means something different for Tess, and something different for society. For society, "justice" has been served with the arraignment and execution of a woman who does commit a capital crime.
"What is it, Angel?" she said, starting up. "Have they come for me?"
"Yes, dearest," he said. "They have come."
"It is as it should be," she murmured. "Angel, I am almost glad--yes, glad! This happiness could not have lasted. It was too much. I have had enough; and now I shall not live for you to despise me!"
She stood up, shook herself, and went forward, neither of the men having moved.
"I am ready," she said quietly.
However, in a very ironic sense, the "justice" that Hardy speaks of has to do with the liberation of Tess as a prisoner of her own circumstances.
"Justice" was done, and the President of the Immortals, in Aeschylean phrase, had ended his sport with Tess. And the d'Urberville knights and dames slept on in their tombs unknowing. The two speechless gazers bent themselves down to the earth, as if in prayer, and remained thus a long time, absolutely motionless: the flag continued to wave silently. As soon as they had strength, they arose, joined hands again, and went on.
Therefore, we can argue that Hardy is condescending to Tess but in a way that will help us appreciate the struggle and sad series of events that have made her life so complex and so unhappy until the end.
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