Justice

Justice is the idea under which men ask what they owe one another and what the community owes each of them. It covers the virtue of the just person, the order of a well-governed state, the fairness of private bargains, the integrity of judges, the punishment of wrongdoers, and the justice of God or the gods. It is a great idea for these books because nearly every one of them takes it up somewhere. The Odyssey measures peoples by whether they are “wild and unjust” or hospitable and god-fearing¹. Job demands to know the charge against him². Socrates dies rather than do wrong³. Adam Smith counts the administration of justice among the first duties of the sovereign⁴. Across three thousand years the authors disagree about what justice is. They never doubt that it matters.

The oldest and most persistent definition is that justice gives each his due. Marcus Aurelius praises firmness in giving every man according to his deserts⁵. He holds that acting unjustly is impiety, since nature made rational beings to help one another according to their deserts⁶. George Long, his commentator, states the formula plainly as giving every man his due⁷. John Winthrop draws a practical consequence from it: a fixed penalty applied alike to a first-time liar and a habitual one is itself unjust, because desert differs⁸. Hobbes refines the vocabulary. He distinguishes the justice of persons, a conformity of manners to reason, from the justice of particular actions, and he holds that an injury presupposes some individual who is wronged⁹. The moderns extend “due” into the language of rights. Kant treats attacks on another’s freedom and property as using him merely as a means¹⁰. Mill argues that the legal subjection of women is unjust and that they need an equal voice in making the laws that bind them¹¹.

Many authors also hold that justice is the root of the other virtues. Marcus calls it the foundation of the rest¹², and he places the good itself in the disposition to justice and its practice¹³. Plutarch reports that Aristides earned the title the Just, and he remarks that justice makes a life godlike while injustice makes it beastlike¹⁴. In Aeschylus, the Furies warn that if the shrine of Justice falls, none will worship Right¹⁵. Burke turns the same conviction toward politics: justice is “the great standing policy of civil society,” and any departure from it is no policy at all¹⁶.

Against this tradition stands the view that justice is not prior to society but made by it. Hobbes argues that in the war of all against all nothing is unjust. Justice begins with the keeping of covenants, and before a coercive power exists there is no injustice^17,18. On his account injustice is a kind of absurdity, the voluntary undoing of what one voluntarily did¹⁹. He then gives the “fool” his say. The fool argues that breaking covenants may serve one’s benefit and so is not against reason²⁰. Hobbes replies that where there is a power to compel, or where the other party has already performed, keeping faith is reasonable²¹. Rousseau ties justice even more closely to property. Savages, he says, had no notion of mine and thine²², and the first rules of justice follow from property, since securing each his own requires that each have something²³. Hume uses injustice is violation of property as an example of a proposition true by definition²⁴. Penn²⁵ and Smith²⁶ see justice chiefly as the security that lets property and commerce flourish.

From here the great controversy follows: is justice natural and unchanging, or conventional and enforced by power? Antigone appeals to a Justice dwelling with the gods below that did not trace Creon’s laws²⁷. Augustine holds that true righteousness is one and unchanging, though its application varies with times and places²⁸. Johnson judges Shakespeare by a justice “independent on time or place”²⁹. Pascal is the great sceptic of the collection. He mocks a justice bounded by a river, where killing is murder on one bank and heroism on the other³⁰, and he concludes that nothing is just in itself by reason alone, so custom becomes the rule³¹. Justice without might is helpless, might without justice tyrannical; unable to make might obey justice, men made what is mighty just^32,33. He adds that it is dangerous to tell the people their laws are unjust, since they obey only because they think them just³⁴. Pascal’s scepticism, however, is the prelude to faith rather than its end. True justice, for him, exists as God reveals it³⁵. Aesop’s wolf, manufacturing pretexts to devour the lamb³⁶, dramatizes the cruder thesis that might makes right. Tacitus observes that when the sword rules, the stronger claim fair dealing for themselves³⁷. The moderns resist conventionalism from several sides. Smith says the smuggler breaks his country’s laws but cannot violate natural justice³⁸. Burke denies that popular will, any more than a king’s, is the standard of right³⁹. Channing holds that arbitrary ordinances cannot permanently subvert the principles of justice⁴⁰.

A second line of inquiry concerns the soul of the agent. Socrates teaches that unjustly taking a life is a greater evil than suffering it⁴¹, and that the higher part of man is improved by justice and ruined by injustice⁴². From this he concludes that one must never retaliate injury for injury⁴³. Paul counsels suffering wrong rather than doing it⁴⁴. Marcus says the wrongdoer wrongs himself⁴⁵. Confucius dissents from the counsel of endurance. He rejects repaying evil with good: meet evil with justice and good with good⁴⁶. Manzoni adds a further consideration: the oppressor is guilty both of the wrong done and of the corruption of mind he causes in those he wrongs⁴⁷. Pascal and Locke trace injustice to self-love. Pascal says the self is unjust in making itself the centre of everything⁴⁸, and that we are born unjust because all tends to self⁴⁹. Locke holds that injustice springs from too great love of ourselves and too little of others⁵⁰, and he would check it early in children⁵¹. Socrates adds a sober corollary: one who fights for the right cannot survive long in public life⁵².

In private dealings, justice forbids exploiting another’s ignorance or need. Penn calls such advantage next to fraud⁵³. Bacon condemns bargains that live by another’s sweat⁵⁴. The Thousand and One Nights sets an honest jeweller who pays fairly by the truth of God against a cheat⁵⁵. Hospitality is the archaic form of this justice. Penelope condemns the wooers for ignoring suppliants and consuming the house without atonement⁵⁶. Job swears he never wronged servants, widows or orphans⁵⁷. The Koran binds guardians to deal justly with orphans’ property⁵⁸. Good faith must be kept even where it is costly. Luther holds that a safe-conduct must be honoured though the world perish⁵⁹. Smith calls payment in debased coin a fraud on creditors⁶⁰. Cervantes shows how difficult it is to right such wrongs. Don Quixote forces a farmer to swear he will pay the boy Andrew his wages, but the farmer beats Andrew nearly to death once the knight is gone⁶¹, and Andrew afterwards curses knights-errant for their help⁶². Sheridan’s Rowley states the moral briefly: be just before you are generous⁶³.

The classical distinction between distributive and commutative justice reappears in modern dress. Hobbes separates the justice of contractors from the justice of an arbitrator, rejecting the old doctrine of arithmetical and geometrical proportion⁶⁴. He defines equity as equal distribution of what belongs to each, which partiality or “acception of persons” violates⁶⁵. Browne, by contrast, professes to keep geometrical proportion in both kinds⁶⁶. Winthrop argues that distributive justice cannot be fixed in advance, because merit is uncertain⁶⁷. This is also why he would leave room for equity, since a judge with the person before him judges better than a lawmaker⁶⁸. Equity tempers the letter of law. Pliny remits part of a vintage price by strict equity⁶⁹, and More’s Chancery is praised for relieving the people’s injury from rigid law⁷⁰. More’s Utopia argues that death for theft passes the limits of justice, because extreme justice is extreme injury⁷¹. Utopia raises the deeper question as well: no just distribution is possible while property is private⁷². Lear, exposed on the heath, learns to “shake the superflux” to the poor⁷³. Rousseau says it clashes with natural right that a few glut in superfluity while the multitude lack necessities⁷⁴. Mill calls inequality of birth an injustice, whether or not it can be fully remedied⁷⁵. Emerson, however, thinks such inequality seems unjust only until it is seen closely⁷⁶.

The administration of justice gathers the most concrete counsel. Bacon makes integrity the judge’s proper virtue⁷⁷. He holds that the judge’s chief duty is to suppress force and fraud and to make unequal parties equal⁷⁸, and he counts patient hearing an essential part of justice⁷⁹, as Pliny had⁸⁰. Penn pictures justice as blind, with one scale for rich and poor⁸¹, and adds that to delay justice is injustice⁸². More would give the devil his right if his cause were good⁸³, and he refused gifts from suitors⁸⁴. The Koran requires witnesses to testify even against themselves and their kin⁸⁵. Corruption is denounced with equal force. The Psalmist rebukes judges who favour the wicked⁸⁶. Lear sees that the “strong lance of justice” breaks against gold⁸⁷. Luther says Roman officials sell justice and injustice alike⁸⁸. In Manzoni, a lawyer’s verdicts turn on the rank of the parties⁸⁹. Dana shows courts excusing captains who abused their seamen on pleas of family and good character⁹⁰. The moderns propose institutional remedies. Smith would pay judges by fees after decision⁹¹, and Burke calls for a judicature independent of the supreme power⁹².

Fair trial is a concern from the beginning. Aeschylus’s Athena refuses to judge a case unheard⁹³, and Festus states the Roman custom that the accused must face his accusers⁹⁴. Yet Pilate finds no fault in Jesus and yields to the crowd anyway⁹⁵. The Athenians imprison accused men without hearing them, out of fury and calumny⁹⁶. Calvin protests that his doctrine is condemned without a hearing or due order of law⁹⁷. Pascal adds the bitterest observation, that Jesus was put to death by the forms of justice⁹⁸, and Mill numbers Socrates and Christ among the victims of judicial iniquity⁹⁹. Torture is distrusted on reasoned grounds. Hobbes holds that testimony extracted by torture is not credible¹⁰⁰, and Shelley’s Beatrice denounces it as a farce¹⁰¹. The Song of Roland still trusts the duel to reveal God’s verdict¹⁰². The later documents write guarantees into law. The Body of Liberties forbids coerced confession and double sentence¹⁰³, and the Constitution guarantees due process and the equal protection of the laws^104,105.

Systemic oppression is the modern theme par excellence, though Manzoni sets it in the seventeenth century. There the privileged escape punishment while arbitrary magistrates oppress the helpless¹⁰⁶. Ruskin sets poor boys jailed for stealing walnuts against bankers who go unpunished¹⁰⁷. Franklin’s Assembly condemns the proprietors’ exemption from taxation as injustice¹⁰⁸. Smith asks that subjects contribute in proportion to their abilities¹⁰⁹, and he holds that hurting one order of citizens to favour another violates the equal justice the sovereign owes all¹¹⁰. More indicts a commonwealth that starves its necessary labourers and calls the result “justice” by law¹¹¹. Woolman says slaves have not been treated with the purity of justice¹¹². Smith observes that the pious purpose of conversion sanctified the injustice done to America’s natives¹¹³.

Retribution runs from blood-feud to law. In Aeschylus, Justice claims her debt and whoever takes the sword perishes by the sword¹¹⁴. The chain is broken only when Athena institutes a court¹¹⁵, and the Furies protest that ancient right is overridden when Orestes is freed on an equal vote¹¹⁶. Some societies replace vengeance with compensation. Tacitus praises the composition of homicide by cattle¹¹⁷, and the Koran allows retaliation while commending remission¹¹⁸. Bacon calls revenge “wild justice,” which puts the law out of office¹¹⁹. Cellini nonetheless stabs his brother’s killer¹²⁰. Manzoni’s friar rebukes Renzo: God alone judges¹²¹. Shelley’s Beatrice argues that human law bars retribution and then blames the avengers¹²². Dana praises a vigilance committee as a last resort where fraud hides behind legal forms¹²³. Between nations the same tension appears. Aristides rejects a plan that is advantageous but unjust¹²⁴, yet he concedes that public policy sometimes demands injustice¹²⁵. More satirizes a princely justice that is unbound by the rules governing private men¹²⁶. Washington urges good faith toward all nations¹²⁷, and the treaties provide for arbitration by friendly sovereigns¹²⁸.

Finally, the books ask whether justice is rendered by God. The Psalmist trusts that God judges the world in righteousness¹²⁹. Job, however, finds no umpire between himself and God², and he sees the wicked and the righteous die alike¹³⁰. Ecclesiastes notes that sentence against evil is not executed speedily¹³¹. The Christian poets reconcile justice and mercy through atonement. In Milton, either Man dies or Justice must be satisfied by one able and willing to pay¹³², and Dante holds that only the Son’s taking flesh fully satisfied justice¹³³. Dante’s eagle answers how the virtuous man born on the Indus can be justly condemned, saying that justice is consonance with the Primal Will¹³⁴. Rousseau’s vicar finds the damnation of those who never heard the gospel irreconcilable with justice¹³⁵, and FitzGerald’s Omar refuses to call such a decree grace¹³⁶. Hume argues that divine justice can be inferred only as far as it is seen in this world¹³⁷. Browne, by contrast, expects the last day to reconcile this world’s inequalities¹³⁸. Emerson denies that justice is ever postponed¹³⁹. Edgar finds the gods just in making our vices our plagues¹⁴⁰, and Lincoln reads the Civil War as blood drawn by the sword paying for blood drawn by the lash¹⁴¹.

Several questions remain open at the end of this conversation. Is justice discovered in nature or established by covenant? Can institutions secure what virtue alone cannot? Does the order of things finally balance the account? The ancients locate justice in the soul and the cosmos. The moderns increasingly look to contract, rights and institutions. Pascal’s doubt and Job’s cry show that neither answer has wholly settled the matter.