2. Justice as Dependent upon Man. Plato's “doctrine
of ideas” was severely “criticized” by Aristotle in his
Metaphysics (1078b-1080a); and while Aristotle does
not devote the time or space to justice that Plato does,
he makes known his views in several places. In his
Politics he writes that “all men cling to justice of some
kind” (1280a), and in the Nicomachean Ethics he con-
cludes “that there is more than one kind of justice”
(1130b), for example, that involving “the rightly-
framed law” which “is complete virtue, but not abso-
lutely, but in relation to our neighbor” (1129b). Aris-
totle thus believed that man was a political and social
animal, who “alone has any sense... of just and
unjust” (Politics 1253a), and he sought to reconcile
justice with the conflicts he observed about him. In
his Politics he states that “justice is the bond of men
in states” (1253a), and in the Rhetoric he gives it some
content by saying that justice “is a virtue which assigns
to each man his due in conformity with the law,” while
injustice is a vice whereby man “claims what belongs
to others, in opposition to the law” (1366b).
In the Ethics Aristotle initially divides “the just [into]
the lawful and the equal or fair” (1130b); these are,
respectively, his universal or general, i.e., legislative,
and particular, i.e., judge-made decisions in individual
cases. The legislative type of justice requires obedience
to the law, and therefore comprehends a civic virtue.
Judicial decisions are distinguished from morality and
are now divided into distributive and corrective, that
is “the distribution of honour, wealth, and the other
divisible assets of the community... [and] that which
supplies a corrective principle in private transactions.”
This corrective principle is still further subdivided into
“those [acts and relations] which are voluntary and
those which are involuntary” (1131a), examples of
which he gives by referring respectively to commercial
dealings, and then to personal crimes or torts upon one
involuntarily made a participant (ibid.; see also his
similar divisions in Rhetoric 1373b).
Aristotle's main concern is with the particular and
corrective or remedial type of justice in which the
judge's task is to redress and not to punish (Aquinas
later also uses such terms and divisions but in a slightly
different sense, especially in going above and beyond
the Aristotelian view of nature). Aristotle further re-
gards justice (dike) as embracing many if not all the
other virtues, including a relation to persons as well
as to things, involving a just distribution of the latter,
and a fair meting out of punishment. In his Ethics
(1132b) he rejects the “simple” Pythagorean formula
for justice as equal reciprocity, since this does not apply
to either distributive or retributive justice, and then
tentatively suggests a third kind of exchange or com-
mercial justice.
There are three types of persons whom Aristotle
describes as acting justly, namely: (a) the legislator or
statesman who rewards; (b) the judge who decides; and
(c) the farmer or entrepeneur who exchanges goods
and services, although this last one does not include
a moral virtue and is therefore only an economic type
of justice, i.e., entitled to a just price (1132a-1133b).
Equals, continues Aristotle in his Politics, should be
treated alike, but unequals proportionally to their rel-
evant differences, and all with impartiality, whereby
justice now would be understood and served. As Muller
put it, “Plato and Aristotle would [a millennium] later
state the logic of [Hammurabi's] code by arguing that
justice consists not in giving equal rights to men natu-
rally unequal, but in giving every man his due” (An-
cient World, p. 59). Almost all thinkers throughout the
whole history of philosophy, down to our own century,
have agreed with Aristotle's definition. However, Aris-
totle points out that the problem of what constitutes
equals and what constitutes unequals cannot be solved
easily as, e.g., those who are superior in wealth feel
they are superior in everything, (although no problems
exist in assigning some, e.g., slaves, to an inferior posi-
tion, so long as they are given their due within this
group).
Anatole France's caustic version is that “Justice is
made to give everyone his due; to the rich his richness,
to the poor his poverty.”
Aristotle's solution is that equality must be judged
on the basis of goodness (shown by noble actions), and
anything short of such virtue is only a part of justice.
While Plato and Aristotle therefore agree in several
respects, for example, they both regard ethics and
morals as basic to a philosophy of law which is sub-
sumed under a theory of justice, their ideas and appli-
cations of the nature of justice do not coincide. Aris-
totle ties at least one form of justice to man.
Bodenheimer feels that Plato's “realization” of justice
in his Laws depends on the police power of the state,
whereas Aristotle considers various types of law with
at least one relating man and justice (Jurisprudence
[1962], p. 47).
It is Aristotle's tying of justice to diverse human
situations which may be termed the most distinguishing
feature of his disagreement with Plato's central idea
of justice as harmony. Aristotle's four illustrative types
of voluntary acts therefore disclose that only in the
last type, where man acts by a deliberate choice, are
the act and doer unjust (1135a-1136a). In his Rhetoric
Aristotle further links justice to the human condition
by saying that “equity is justice that goes beyond the
written law” (1374a), is left by the legislators to permit
a margin of fairness to soften the rigors of the statutes,
and therefore provides judges with a degree of discre-
tion (1374b). This may be Aristotle's greatest practical
contribution to “justice,” for the preliminary title of
the Code Napoléon of 1804 restates this doctrine, the
Austrian and Italian Civil Codes mandate it in the
absence of express rules, and the English and American
common law division into law and equity follow it,
as do all nations in one fashion or another.
Legal positivists such as Kelsen nevertheless object
to any extra-legal criteria and reject any effort to
include such a conception of justice in the field of law.
After the Greeks, we must consider three historically
important versions of justice in the Hebraic, the
Roman, and the Thomistic teachings, with the latter
two exercising a more direct and broader position.
The Hebraic requirement of the individual's freedom
of the will paralleled his religious commandments to
lead a moral life, and the idea of justice was necessarily
broadened to include these. Here the idea of justice
concurs somewhat with Plato's, and there is also a
certain parallelism with an Aristotelian base, for the
idea cannot be altered by man and yet arises out of
man's needs. It was these needs which determined the
concept of the idea as a moral contract between nation
and God. The Covenant is a commitment which justice
obligates God (voluntarily) to honor so long as man
does; here justice, right, and contract are somewhat
interchangeable, but only if freely-willing participants
are found, i.e., a consenting partnership of presumed
equals in which obligations and rights are stressed on
the basis of divine commandments. While Mosaic law
and justice (promulgated ca. 1250 B.C.) borrowed little
from Egypt, they were later influenced by the Assyrians
during the “Babylonian Captivity” (ca. 586 B.C.); thus
prior to the exodus from Egypt the Jews conceived
of justice as deliverance, thereafter when in exile as
benevolence, and during the Roman era as strict ob-
servance; in all these it was God whose justice would
be so reflected, but it was man who was required to
act, as the Covenant decreed. Religion, morals, right-
eous conduct, and strict application to duty thus went
into the Hebrew concept of justice; so long as man
obeyed the Commandments he would receive justice
through divine deliverance.
This “give and take” type of justice may be com-
pared with that of the “reciprocity” or “equality” of
the Pythagoreans, above; however, it is to be distin-
guished from the pagan notion whereby the gods would
dispense with justice as a matter of favoritism, not of
right. The concept of such a quid pro quo was expressed
in the Covenant on a high level, and on a lower one
by statements such as an “eye for an eye.” Against this
primitive idea of retaliation toward a family, clan, or
a tribe for the actions of the members (as in Helen's
abduction and the siege of Troy), there stood the
Hebrew concept of individual moral responsibility
which carried over into the later Christian teachings.
This elicited the need for a corresponding doctrine of
the freedom of the will and the focus upon man as
a political and social animal was reinforced, as in
Aristotle's view.
The Roman conquest of Greece brought, by the first
century A.D., an interchange of ideas, but not any
change of the aristocratic character of Greek political
ideas to any form of democracy. Nor did the Roman
dependence upon Greek ideas and civilization extend
to an uncritical adoption of their superstitions and
beliefs. Roman mythology described customs or laws
promulgated by Romulus (ca. 753-16 B.C.), and there-
after by other kings, which, for example, created vari-
ous classes, assigned powers, and implicitly ordered the
lives of the people. The Roman Epicurean Lucretius,
a contemporary of Julius Caesar, conceived of order
and law in nature as free from the caprice of gods,
thereby gaining security for the individual. The Epicu-
rean could rise above his passions and bear the evil
afflicting him by freeing himself from their grip
through knowledge and reason, and by becoming re-
signed to the universal law of change and death.
This Roman wisdom, borrowed from Epicurus, was
also in the chronological stream of the moral philoso-
phy of Plato and Aristotle, for now man's first concern
was to know and obey the laws of his being; the substi-
tution of nature for deities also brought Lucretius
closer to the moral philosophy of the Stoics. Stoic
philosophy, however, was the main inspiration in the
further development of Roman jurisprudence, which
became oriented to the world rather than to the gods;
and Rome's great expansion into a world power, with
a consequent “Pax Romana,” required a jus gentium
(“law of nations”) founded upon the concept of a
universal and uniform idea of justice, equally accessible
to all through reason. The term justice was, for Rome,
given legal content first by Ulpian (ca. A.D. 170-228)
and later by Justinian (483-565) who, in the opening
pages of his Institutes, repeated it almost verbatim (as
later did Aquinas) as “the set [fixed] and constant pur-
pose which gives to every man his due.”
Aquinas formulated the natural law from man's en-
joyment “of a certain share in the divine reason,” but
this share could thus be limited to such law itself and
therefore not partake of justice. There is, also, an
uncompromising position taken by Aquinas with re-
spect to “divine” reason which is made the touchstone
for his conclusions. His formulation of the idea of
justice follows both a Platonic and Aristotelian tradi-
tion; like Aristotle, Aquinas proposes the secularization
of the idea, and the logical extension of his thoughts
only eventually reaches an extremely religious form.
The Christian ethic to that time had stressed love, e.g.,
of God and neighbor to achieve justice, so that baptism
redeemed one from sin, the most fundamental injustice,
and “it becomes us to fulfill all justice” (Matthew 3:15,
Douay version); but there was a corresponding love
of God for man, e.g., as through the giving of Christ
(suggesting, perhaps remotely, the aspect of justice as
reciprocity in the Protagorean and Hebraic approach).
Both Plotinus and Augustine had constituted the
church as the only fount of justice for man, who so
obtained it through his love of the highest good, i.e.,
God, although the state could and did exist separately
and did properly dispense its own brand of justice while
linked with the church as its secular arm, e.g., do unto
others. Aquinas did not disagree in this division of
justice but advanced the view (in greatly disputed
passages) that the state, for one, could independently
so dispense justice even though ultimately there was
the divine idea; commutative justice therefore could,
in practical effect, stand alone. He disagreed with the
idea that justice was simply what was “due to each
man” (e.g., as in the Pythagorean, Hebraic, and Augus-
tinian views), for God could not properly be held to
be a debtor; this severance between God and man
could now also be found, and here again he did not
follow Augustine's attribution of justice solely to God
or its identification with His essence.
It is in Grotius that this tentative ideological sever-
ance is given rationality, and acquires a significant
independence from God with a resulting dependence
(solely) upon nature (or man). Grotius argues as follows:
first, he agrees with Aristotle that man is a naturally
social creature (and so utilizes the social contract doc-
trine), necessarily requiring some minimum form of law
(and justice), even if God did not exist—though surely
He exists; second, this minimum is a resultant of man's
reason; ergo, this universal or natural law “is un-
changeable—even in the sense that it cannot be
changed by God.... He cannot cause that which is
intrinsically evil be not evil” (De Jure Belli ac Pacis,
trans. F. W. Kelsey, 2 vols., Oxford [1925], II, 40), or,
conversely, tamper with the intrinsic concept of justice.
In the seventeenth century Hobbes's man warred in
a “state of nature” in which notions of justice and
injustice had no place, but his third law of nature
required the performance of covenants, for in this
“consisteth the fountain and Originall of Justice....
And for the definition of Injustice, is no other than
the not performance of Covenant. And whatsoever is
not Unjust, is Just” (Leviathan, ed. Waller, Cambridge
[1904], p. 109).
