The following is a set of condensed notes from the Lexicon of the Great Book Series. Following our Beechwood conversation tonight I decided it would be worth posting these notes.
The Debate of Justice
The discussion of justice is the central theme in two dialogues of Plato – the Republic and Gorgias. It is a conflict of such polar opposites that all the differences of opinion about justice became arguable only after one or the other of the two extreme positions is abandoned. It is the conflict between the exponents of might and the exponents of right – between those who think that might makes right and that justice is expediency, and those who think that power can be wrongly as well as rightly exercised and that justice, the measure of men and states, cannot be measured by utility.
Though Plato gives us the first full-fashioned statement of this issue, the issue runs through the fabric of Greek life and thought in the age of the imperialistic city-states, which played the game of power politics culmination in the Peloponnesian War. In his history of that war, Thucydides highlights the Melian episode by dramatically constructing a conversation between the Athenian envoys and the representatives of Melos, a little island colony of Sparta, which had refused to knuckle under to Athenian aggression.
Recognizing the superior force of the aggressors, the Melians enter the conference with a sense of its futility, for, as they point out, if they insist upon their rights and refuse to submit, they can expect nothing from these negotiations except war and, in the end, slavery. The Athenians reply with a frankness that is seldom found in the diplomatic exchanges of our own day, though in their real contentions the conferences which have preceded or followed the world wars of last century repeat what happened, if not what was said, at Melos.
The Athenians tell the Melians that they will not waste time with specious pretences “either of how we have a right to our empire… or are now attacking you because of wrong you have done us.” Why make a long speech, they say, which would not be believed? Instead they come directly to the point and put the matter simply or, as we now say, realistically. “You know as well as we do,” they tell the Melians, “that right, as the world goes, is only in question between equals in power, whereas the stronger do whatever they can and the weaker suffer whatever they must.” There is nothing left for the Melians except an appeal to expediency. “you debar us from talking about justice and invite us to obey your interest,” they reply to the Athenians, before trying to persuade them that their policy will end in disaster for Athens.
The language of Thrasymachus in the Republic resembles that of the Athenian envoys. “I proclaim,” he says, “that justice is nothing else than the interest of the stronger… The different forms of government and make laws democratic, aristocratical, tyrannical, with a view to their several interests; and these laws, which are made by them for their own interests, are the justice which they deliver to their subjects, and him who transgresses them they punish as a breaker of the law, and unjust. And this is what I mean when I say that in all states there is the same principle of justice which is the interest of the government; and as the government must be supposed to have power, the only reasonable conclusion is that everywhere there is one principle of justice which is the interest of the stronger.”
The thesis seems to have two applications. For the stronger, it means that they have the right, as far as they have the might, to exact from the weaker whatever serves their interests. Their laws or demands cannot be unjust. They cannot do injustice. They can only fail to exert sufficient might to hold on to the power which can secure them, not from the charge of injustice, but from reprisals by those whom they have oppressed or injured.
The thesis also means, for the weaker, that they can only do injustice but not suffer it. Injustice on their part consists in disobeying the law of their rulers. Hence for them, too, justice is expediency, only now in the sense that they are likely to suffer if they try to follow their own interests rather than the interests of the stronger.
This thesis appears to be repeated in somewhat different language by Hobbes and Sponoza. To men living in a purely natural condition, the notions of justice and injustice do not apply. They apply only to men living in civil society. “Where there is no Commonwealth,” Hobbes writes, “there is nothing unjust. So that the nature of justice consists in the keeping of valid covenants; but the validity of covenants begins not but with the constitution of a civil power sufficient to compel men to keep them.” The breach of civil laws or covenants “may be called injustice, and the observance of them justice.”
It is Spinoza’s opinion that “everything has by nature as much right as it has power to exist and operate.” It follows, therefore, that “in a natural state there is nothing which can be called just or unjust, but only in a civil state.” Here as before justice consists in obedience, injustice in disobedience, to whatever laws the state has the power to enforce, the laws themselves being formulated not by reference to justice, but to the interests of the state which must seek its own preservation and has the right to do so, so long as it has the power.
Those who take the opposite view agree that justice is political in the sense that the state, in organization and operation, is a work of justice. Wisdom is the virtue of the rulers in the Republic, but justice is the organizing principle of Plato’s ideal state.
Aristotle describes man “when separated from law and justice” as the worst of animals. Augustine describes the state without justice as “no better than a band of robber thieves.”
Those who agree that political institution involve justice are confronted by these alternatives: either the principle of justice is antecedent to the state, its constitution, covenants, and laws, or the determination of what is just and unjust is entirely relative to the constitution of a state, dependent upon its power, and consequent to its laws.
When the second alternative is chosen, the proposition that justice is political is seriously qualified. It is merely political. There is no natural justice, no justice apart from man-made laws, nothing that is just or unjust in the very nature of the case and without reference to civil institutions. On this theory, only the individual who is subject to government can be judged just or unjust. The government itself cannot be so judged, nor can its constitution, its laws, or its acts; for, since these determine what is just and unjust, they cannot themselves be judged for their justice.
The opposite answer conceives political justice as a determination of natural justice. “Political justice,” Aristotle remarks, “is partly natural and partly conventional or legal.” The fact that these is a sense in which just action on the part of a citizen consists in law-abiding conduct, does not exclude another sense in which the laws themselves can be called just or unjust, not only the laws, but the constitution of the state itself. Though the justice of civil laws is partly relative to the constitution under which they are made and administered, there are some enactments, which, since they violate natural justice, cannot be justified under any constitution. The constitution, moreover, cannot be regarded as the ultimate standard of justice by those who compare the justice of different forms of government or diverse constitutions. On their view, the ultimate measure of justice in all human institutions and acts, as well as in the character of men, is not itself a man-made standard, but rather a natural principle of justice, holding for all men at all times everywhere.
Those who deny natural justice and natural law also tend to deny natural rights, which, unlike civil rights, are not conferred on the individual by the state, but are inherent in his human personality. They are, according to the Declaration of Independence, “unalienable” in the sense that the state cannot rescind them. What the state does not create, it cannot destroy. If a government transgresses natural rights, it negates its own reason for being, since it is “to secure these rights [that] governments are instituted among men.”
Those who deny natural rights, among which the right to liberty is usually included, do not have a standard for judging when governments violate the rights and invade the liberties of men. When men are thought to have no rights except those granted by their rulers, the absolute power which the rulers exercise cannot be criticized as tyrannical or despotic.
The principle of natural justice is sometimes not accompanied by a doctrine of natural law and natural rights, as for example in Greek thought. Their connection first seems to occur in Roman jurisprudence and mediaeval theory. Not all the opponents of natural justice avoid the use of the words “natural law” and “natural rights.” Using these words in a different sense, Hobbes, for example, speaks of men living under natural law in a state of nature, which is “a condition of war of every one against ever one,” and “in such condition every man has a right to everything, even to another’s body.” Only when abandon this unlimited right in order to form a commonwealth, do they acquire in recompense certain civil rights or, as Hobbes says, “properties.” Then, and only then, can there be any meaning to justice, conceived according to the ancient maxim, which Hobbes accepts, that justice is “the constant will to render to each man what is his due.”
Sometimes the statement of the first precept of the natural law is “Seek the good; avoid the evil.” Sometimes it is “Do good to others, injure no one, and render to every man his own.” In this second formulation, the natural law seems to be identical with the precept of justice. The essential content of the precept seems to be present – separate from any doctrine of natural law – in Aristotle’s analysis of the nature of justice both as a virtue and as a quality of human acts.
“The just,” Aristotle says, “is the lawful and the fair.” What he means by the word “lawful” in this context does not seem to be simply the law-abiding, in the sense of conforming to the actual laws of a particular society. He thinks of law as aiming “at the common advantage… We call those acts just,” he writes, “that tend to produce and preserve happiness and its components for the political society.” Lawful (or just) actions thus are those which are for the common good or the good of others; unlawful (or unjust) actions, those which do injury to others or despoil the society.
It is in this sense of justice that both Plato and Aristotle lay down the primary criterion for differentiating between good and bad governments. Those, which are lawful and serve the common good are just; those which are lawless and serve the private interests of the rulers are unjust. This meaning of justice applies as readily to all citizens – to all members of a society – as it does to those who have the special duties or occupy the special offices of government.
Whether it is stated in terms of the good of other individuals or in terms of the common good of a community (domestic or political), this understanding of justice seems to consider the actions of a man as they affect the well-being, not of himself, but of others. “Justice, alone of the virtues,” says Aristotle, “is thought to be ‘another’s good,’ because it is related to our neighbor.” Concerned with what is due another, justice involves the element of duty or obligation. “To each one,” Aquinas writes, “is due what is his own,” and “it evidently pertains to justice,” he adds, “that a man give another his due.” That is why “justice alone, of all the virtues, implies the notion of duty.” Doing good to others or not injuring them, when undertaken as a matter of strict justice, goes no further than to discharge the debt which each man owes every other.
In consequence, a difference of opinion arises concerning the adequacy of justice to establish the peace and harmony of a society. Some writers, like Kant, seem to think that if perfect justice obtained, a multitude of individual wills would be perfectly harmonized in free action. Others, like Aquinas, think justice necessary but insufficient precisely because it is a matter of duty and debt. “Peace,” he writes, “is the work of justice indirectly, in so far as justice removes the obstacles to peace; but it is the work of charity directly, since charity, according to its very nature, causes peace; for love is a unitive force.” The bonds of love and friendship unite men where justice merely governs their interaction. What men do for one another out of the generosity of love far exceeds the commands of justice. That is why mercy and charity are called upon to qualify justice or even to set it aside. “Earthly power,” Portia declares in the Merchant of Venice, “doth then show likest God’s when mercy seasons justice.”
In the transactions of commerce, fairness seems to require the exchange of things equivalent in value. For all to share alike is not a just distribution of deserts if all do not deserve alike. “Awards should be ‘according to merit,’” Aristotle writes.
The labor theory of value, the origin of which he attributes to Adam Smith, Marx conceives as solving a problem in justice which Aristotle stated but did not solve. He refers to the chapter in the book on justice in Aristotle’s Ethics, in which Aristotle discusses money as the medium to facilitate the exchange of commodities. The brilliancy of Aristotle’s genius is shown by this alone, that he discovered, in the expression of the value of commodities, a relation of equality. The principle even seems to be implicitly involved in Adam Smith’s distinction between real or natural price and the market price which fluctuates with variations in supply and demand.
The connection, which has become evident between justice and both liberty and equality does not imply that these three basic notions are simply coordinate with one another. On the contrary, equality seems to be the root of justice, at least insofar as it is identified with fairness in exchange or distribution; and justice in turn seems to be the foundation, not the consequence of liberty.
The condemnation of slavery confirms this observation. If slavery were not unjust, the slave would have no right to be free. The injustice of treating a man as a chattel ultimately rests on the equality between him and his master as human beings. His right to the same liberty which his master enjoys stems from that equality. The justice of equal treatment for equals recognizes that right and sets him free. Aristotle’s theory of natural slavery is based on a supposition of natural inequality which is though to justify the enslavement of some men and the freedom of others. Whenever slavery is justified or a criminal is justly imprisoned, neither the slave nor the criminal is regarded as deprived of any liberty to which he has a right.
It would seem to follow that if a man is justly treated, he has all the liberty which he deserves. From the opposite angle, Mill argues that a man is entitled to all the liberty that he can use justly, that is, use without injuring his fellow man or the common good. More liberty than this would be license. When one man encroaches on the rights of others, or inflicts on them “any loss or damage not justified by his own rights,” he is overstepping the bounds of liberty and is, according to Mill, a fit object “of moral reprobation, and, in grave cases, of moral retribution and punishment.”
It is Mill again who insists that nothing less than universal suffrage provides a just distribution of the political status of citizenship, and that “it is a personal injustice to withhold from anyone, unless for the prevention of greater evils, the ordinary privilege of having his voice reckoned in the disposal of affairs in which he has the same interest as other people.”
The injustice of tyranny lies on a violation of equality.
One meaning of justice remains to be considered. It is related to all the foregoing considerations of economic and political justice, of just constitutions, just laws, and just acts. It is the meaning of justice in which a man is said to be just – to possess a just will, to be just in character, to have the virtue of justice. Here difference in theory reflects the difference between those moralists for whom virtue is the basic conception and whose who, like Kant, emphasize duty or who, like Mill, reduce the propensity for justice to a moral sentiment. But even among those who treat justice as a virtue, there seems to be a profound difference in analysis.
For Aristotle, the virtue of justice, like other moral virtues, is a habit of conduct. It differs from courage and temperance in that it is a habit of action, not of the passions. It is not a rationally moderated tendency of the emotions with regard to things pleasant and painful. It is that settled inclination of the will “in virtue of which the just man is said to be the doer, by choice, of that which is just, and one who will distribute either between himself and another or between two others not so as to give more of what is desirable to himself and less to his neighbor (and conversely with what is harmful), but so as to give what is equal in accordance with proportion.
“Justice,” Socrates declares, is concerned “not with the outward man, but with the inward, which is the true self and concernment of man: for the just man does not permit the several elements within him to interfere with one another, or any of them to do the work of others – he sets in order his own inner life, and is his own master and own law, and at peace with himself.” His is “one entirely temperate and perfectly adjusted nature.”
This conception of justice bears a certain resemblance to what the Christian theologians mean by “original justice.” The perfect disposition of Adam’s soul in a state of supernatural grace consisted, according to Aquinas, in “his reason being subject to God, the lower powers to reason, and the body to the soul – the first subjection being the cause of both the second and the third, since while reason was subject to God, the lower powers remained subject to reason.” The justice of man’s obedience to God seems to be inseparable from the injustice internal to his own members.
The way in which justice is discussed in the Gorgias may similarly be inseparable from the way it is defined in the Republic, Certainly Callicles will never understand why it is always better to suffer injustice than to do it, unless Socrates succeeds in explaining to him that the man who is wronged suffers injury in body or in external things, while the man who does wrong injures his own soul by destroying what, to Soctates, is its greatest good – that equable temper from which all fitting actions flow.