3. Justice as a Fluctuating Mean between Inde-
pendence and Dependence on Man. The duality of the
independence or dependence of the idea of justice on
man would thus require that man steer by an existing
star or else create one. Or, perhaps, both these could
occur and be used singly, or as checks. For example,
in the field of jurisprudence, used singly as where a
person receives particular justice when his rights and
obligations are determined, Justices W. J. Brennan and
B. N. Cardozo respectively objected because, wrote the
former, this is not “my sense of justice” (dissenting in
State v. Tune, 13 N.J. 203 [1953]) to which, continued
the latter, decisional law itself “should conform. Jus-
tice in this sense is a concept by far more subtle and
indefinite than any that is yielded by mere obedience
to a rule. It remains to some extent, when all is said
and done, the synonym of an aspiration, a mood of
exaltation, a yearning for what is fine or high” (The
Growth of the Law, New Haven [1927], p. 87). Or,
where the idea of justice is to be used as a check, the
latter jurist also comments that “What we are seeking
is not merely the justice that one receives when his
rights and duties are determined by the law as it is;
what we are seeking is the justice to which the law
in its making should conform.”
Stammler (1856-1938) seeks “to find merely a uni-
versally valid formal method” to determine whether
“the necessarily changing material or empirically con-
ditioned legal rules... have the quality of objective
justice” (Theory of Justice, pp. 89f.). Here, of course,
the objections earlier made against the personalization
of the idea (of natural law and rights) are likewise
available, but this does not necessarily mean that they
do not represent the collective feelings and aspirations
of men, politically, theologically, or otherwise. For
example, the basic documents of the United States,
France, and the United Nations, as well as England's
Magna Carta, specifically and literally set forth and
emphasize their yearnings for justice as an end and
as a means, although the Soviet Constitution states only
that “justice is administered by” various courts. The
use of the same word, however, does not guarantee
agreement in meaning, e.g., G. F. Kennan mentions
as “shocking” the use of “justice under law” in an
American-Russian agreement to recognize the German
judicial system (Memoirs, Boston [1967], p. 259).
Whether or not ideas can shape the world, justice
seems to be a terminological, if not ideological, neces-
sity in such major documents.
A recurrent and universal idea of justice may there-
fore be assumed, even while the method of its seeking
and its content may be questioned; that is to say, justice
as a term which embodies the idea is used, even though
its source or its definition is not clear and its substance
is rejected by many. For example, Lao-Tzu uses the
word “Tao” to denote the invisible, formless, nothing
and nonbeing, which to him represented the “way”
that anteceded the world and even Ti, the supreme
god of the Chinese.
So the idea or term “justice” has also been popularly
thought of as constant and absolute, at least in one
aspect of a possible definition. Nevertheless, neither
such an absolute nor any operative ideal has developed
or been applied in a strict uniform fashion. Rather,
the idea and the ideal have somewhat surged and
circled, and have been subjected to a degree of cross-
fertilization. In many respects ideals are part of the
institutionalized substructure of cherished ideas, be-
liefs, and prejudices into which Western man is born,
but the jelled climate of opinion so passively received
is itself in constant change. This is not to imply that
the idea itself is necessarily a constantly fluctuating
one, since the ambiguous term has retained an ideolog-
ical permanence which has made it an article of faith
(slogan) or, in Holmesian language, a fighting word;
e.g., the Romans warred in the name of justice, as still
do modern nations, with the conquered then denounc-
ing the wars as unjust. Or, in the middle sixties, and
even though nationalism enters, the turmoil created
in many countries and throughout the world because
of the suppression of dissent, the form of government,
the unequal distribution of resources, or the type of
(legal) justice granted, illustrates further the compelling
urge to achieve justice.
