1. Justice as a Supramundane Idea. Justice as an
idea independent of man, sans referent, and as the
order of the universe, goes to a dubious extreme when
it ignores or makes difficult man's knowledge and use
of the idea. Historically, this independent view of
justice seems first to appear in a primordial conception
of the relation of man to his environment. Such a
primitive concept apparently grew out of a naturalistic
religion rooted in fear and need. It necessarily involved
blind submission to the elements conceived as gods.
In all these primitive ideas of divine justice, one
discerns the supernatural envisaged as an external
power, with man as the buffeted recipient of favors
or punishment.
The early Homeric anthropomorphism (ca. eighth
century B.C.), perhaps following Mycenaean patterns
(ca. sixteenth century B.C.), created a pantheon of
deities, loosely ruled by Zeus, to whom man was a
plaything; and the Greek tragedies depict a universal
conception of man confronting destiny. Kitto holds that
“behind the gods (though sometimes identified with
them) is a shadowy power that Homer calls Ananke,
Necessity, an Order of things which even the gods
cannot infringe” (The Greeks, p. 176). Such heirarchical
polytheism guaranteed a justice by which man submit-
ted to fate or destiny, although the gods themselves
were not subject to such constraint in their own rela-
tions with men. Implicit in Homer's poems is the idea
that the rulers on earth pronounce justice on the basis
of religion and customs (although it may be argued
that if these traditions are the basis for justice, then
man, by adopting them, also participates in the sub-
stance of justice). Hesiod (ca. seventh century B.C.) pre-
sents a pessimistic philosophy of history, holding a de-
gree of hope; Zeus had, for the creatures of the earth,
decreed a mortality based upon mutual annihilation,
but men were spared such self-destruction by means
of justice, although who was to define and ultimately
apply this salvational justice was not too clear.
The Greek terms for justice included themis (a con-
sort of Zeus) and Dike (a daughter), both permitting
many and varied interpretations. For example, the
former might be defined as the personification of ra-
tional thought, or as self-inherent righteousness (as in
Kant and Hegel), analogous to the idea of justice;
however, Dike, without any moral content and refer-
ring to a way of behavior, was the personification of
punishment, or the decision of a judge, and was applied
to relations among persons, analogous to an ideal of
justice (Aristotle's subsequent distinctions of retributive
and distributive justice may be referred back to these
various connotations of Dike). Herodotus (ca. fifth cen-
tury B.C.) in his History, and Aeschylus in his plays,
later depicted man as a puppet but with some minor
degree of choice, and Zeus as the punisher of over-
weening ambition, so that justice might now acquire
a patina of man's free will; but here again man was
subordinated, even though apparently elevated to a
higher moral level. The “... immutable and unwritten
laws of Heaven,” to which Sophocles' Antigone appeals
against Creon's decrees, offer, perhaps, the kernel of
the Platonic idea of justice as well as of the ideas of
natural law and natural right in the later Stoics and
Romans. The Pythagoreans preached a doctrine of
transmigration, along with their view that the nature
of things is number, and that justice is basically equal-
ity, a notion which has remained as perhaps the most
important component of the idea; an all too common
application, however, of the notion of justice as “re-
ciprocity” results in the “eye for an eye” standard of
retaliation. The later Eleatic School included Par-
menides whose poem “On Justice” spoke of the “All,”
somewhat analogous to Anaximander's Indeterminate
(apeiron), and mentioned justice as “... the mighty
avenger, that keepeth the keys of requital,” and adds
that “... neither production neither destruction doth
Justice permit.... ”
The most significant of the pre-Socratic philosophers
for our theme are Heraclitus and the Sophists (although
Plato sarcastically refers to the Sophist as “a sort of
merchant or dealer in” wares, in Protagoras 333c).
Heraclitus said that nothing is stable, that permanence
is an illusion conceived by man, and that strife “is the
justice of the world... ” (Zeller, p. 46). In the next
century the Sophists compared different customs and
civilizations, questioned whether the gods and institu-
tions were really sacred and inviolable, felt these were
the creatures of man and his conventions and therefore
capable of change, and oriented Greek thought and
ideas to a form of humanism (vide Rousseau, in the
eighteenth century, who attacked institutions as cor-
rupters of natural man). One of the most renowned
of the Sophists was Protagoras who, in the fifth century
B.C., brought the idea of justice into a humanistic
framework in his famous statement “that man is the
measure of all things...” (Theaetetus 152a). A further
contention that change was an illusion and not a fact
(illustrated by the paradoxes of Parmenides and Zeno
of Elea) resulted in the ultimate reductio ad absurdum
(by Zeno's pupil Gorgias) that if Being is infinite and
eternal it cannot be located in a particular space or
time and therefore cannot exist, i.e., Being and Nothing
would then be the same; this argument, of course,
struck at the idea that justice could vary in different
places and times.
The Heraclitean-Sophist concept of justice has had
and still has a considerable influence; its implications
for the contrasting Eleatic and Platonic idea of the
immutability of justice are significant. However, so
long as man conceives of permanence as inherent in
the idea of justice, then the idea of justice as eternal
is necessarily a function of and inseparable from man;
and since the only permanence is change, the idea of
justice must be relative to man and constantly chang-
ing. While Plato was affected by Heraclitus thoughts
he did not accept the latter's conclusions, and his views
of eternal “higher laws” certainly did not coincide with
those of the Sophists.
The following century saw the inauguration of the
split in Western thought between the philosophies of
Plato and Aristotle, and the idea of justice historically
reflects their differing views. Both men followed old,
and also created new, traditions and paths. They each
also sought answers to the same questions which had
burdened their predecessors. In general, they felt that
a proportion and order existed from which a determi-
nate harmony (justice) flowed, but each found this in
a different manner and with different results.
For Plato the idea of justice is a transcendental and
permanent harmonious unity, which while separate
from man, preserves some connection or link; as an
eternal object of a priori thought it has universal
meaning (which will be defined below) and is thereby
knowable, even though it may not yet have been com-
pletely embodied in man or his institutions; man there-
fore aspires to apply this eternal, perfect, and absolute
idea to his mortal conduct in an all-embracing system
of applied justice.
Following a hierarchical order, Plato understood the
meaning of justice through its application to the three
classes (philosopher-rulers, soldiers, and workers), each
minding its “own business” (Republic 443d), ultimately
in order to find out how each person could order his
own life, i.e., not “be a busybody” (433b), by respecting
the functions and needs of each component part of his
nature (reason, will, and emotions). A proper and due
harmony within the individual and within the state,
regardless of any economic and political inequality
which resulted, thus conformed to his idea of justice;
in such ordered health of the ideal political body every
part of it performs its proper task (as needed to main-
tain such state) in a perfect harmony (each individual
in each class receives his due proportion).
Plato's theory and definition of justice is thus found
in his conception of the division of the ideal state into
three classes consisting of: a small body of rulers in
whom wisdom is found, and who have attained a
knowledge of absolute justice; the guardians (military
or auxiliaries) in whom courage flows; and, lastly, the
artisans or governed (slaves are excluded). Justice is
the unifying and harmonizing principle which keeps
all three in equilibrium, and it occurs when each indi-
vidual functions properly and in harmony with the
others, in compliance with his proper function accord-
ing to his class and without interfering with the other
two classes, whereas injustice consists of intermeddling
and a refusal to give another his due. Justice is thus
the only way to achieve the ideal state on earth, “for
the gods have a care of anyone whose desire is to
become just and to be like God,” so that Plato's “coun-
sel is that we hold fast ever to the heavenly way and
follow after justice and virtue always...” (Republic,
Book V, pp. 320, 329).
The idea of justice, according to the Platonic tradi-
tion, is therefore generally to be considered as being
an immutable, eternally valid, and universal idea, the
highest or supreme one, which is now sought to be
understood and applied by man as natural justice ob-
tained through pure reason. The idea thereby offers
a formula or standard to determine the acceptance or
rejection of positive rules set by legislation to govern
man's conduct and actions. This is also the basis for
the natural rights theory, so that in this sense justice
includes such rights.
Aristotle does not disagree with Plato completely,
declaring that “... rules of justice vary is not abso-
lutely true, but only with qualifications”; he divides
political justice into two parts, “one natural, the other
conventional [legal]” (Ethics 1134b), and thereby sup-
ports a concept of natural justice. So Edmund Burke
later wrote that human laws “may alter the mode and
application, but have no power over the substance of
original justice” (Works, Boston [1867], VI, 323). Some
critics have denounced all this as a metaphysical play
upon words, arguing that not only is the idea of justice
unknown, but reason, as the catalyst, itself must be
defined and understood; thus, they urge, there can
never be a concretization of justice as a standard for
man to approximate or to apply in a given situation
to determine conduct, or guilt, or punishment. Hobbes,
for example, denied that there could be any standard
of justice apart from utility or expediency, whereas
Grotius maintained that there was an essential morality
as well as a natural justice governing men and nations,
despite their varying customs. Hobbes's views led him
to justify the state and support the imposition of justice
by it, thereby providing a base for others' man-made
law proposals, others who could then logically urge
the irrelevance of morality or even justice in the en-
forcement of the laws. A parallel criticism had been
urged by Epicurus who saw no sign of justice or moral-
ity in the universe, and therefore rejected any theolog-
ical basis for conduct; he regarded perception and
feeling as sole criteria for ethics. In Epicurus there is
thus no fear of gods or death, and man is the aim of
all action so that intellectual pleasure and freedom
from pain are good, for they produce peace of mind,
and the converse is evil; it is therefore the purpose
of law to secure man against injustice, i.e., the wise
abstain from unjust conduct and the others are deterred
so that justice results in this negative fashion.
Another form of criticism concentrated upon the
human factor, arguing that all men differ in every
significant aspect of time, place, etc., and therefore
each has a different mentality and reason; thus what-
ever is defined as natural law and applied to a given
situation, is really no reflection of the universal idea
but is only man's personal and distorted effort. This
criticism is illustrated by Sir Frederick Pollock's state-
ment that “Natural justice has no means... of choos-
ing one practical solution out of two or more” equally
plausible ones, so that “Positive law, whether enacted
or customary, must come to our aid” (Expansion of
the Common Law, London [1904], p. 128). This criti-
cism is illustrated also by the disagreement among the
Justices of the Supreme Court of the United States over
the definition and application of the constitutional term
“due process of law.” As to this constitutional term,
as early as 1898 a majority of the Justices subscribed
to the view that “there are certain immutable princi-
ples of justice which inhere in the very idea of free
government,” so that such due process language im-
plies “a conformity with natural and inherent princi-
ples of justice....” Strong minorities later opposed
this construction as it left the application of the con-
cept “to the Court, with no guide but the Court's own
discretion”; and a current minority likewise denounces
the majority's ability to “roam at will in the limitless
area of their own beliefs as to [due process] reasona-
bleness” and thereby to “appropriate for this Court
a broad power....”
