University of Virginia Library

JUSTICE

Justice has been conceived historically in two sepa-
rate ways: as a supramundane eternal idea which is
independent of man, and as a temporal man-made
social ideal. The two meanings illustrate the difference
between contemplation and action, philosophical re-
flection and practical conduct. Our discussion will,
however, include a middle ground in which theory and
practice are intermingled.

We shall, accordingly, be concerned with: (1) an idea
or tradition of justice conceived to exist apart from
man and stemming from a higher source, although man
seeks to know its nature and draw inspiration from it
in his actions; (2) a conception completely dependent
upon man in its inception and practice; and (3) an
intermediate ground partaking of each of the preceding
two conceptions in various intermingled forms.

While each of these conceptions may be discerned
in the writings of ancient and modern authors, it is
in the middle ground where the tradition of justice
appears currently in the forms of man's faiths, ethical
beliefs, social institutions, and in those of his actions
which reflect this dual nature of justice.

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....”

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).

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.

4. Sources and Content of the Idea of Justice. The
idea of justice thus seems to have been a part of the
Western, if not the civilized, world's heritage since its
pagan inception. It has been, however, the ascertain-
ment of the course and the analysis of the very meaning
of the idea which, as we have seen, have simultaneously
been the desideratum and the bête noire of philoso-
phers, lawmakers, and others. These individuals have
proposed a variety of sources, as distinguished from
the content, of the idea of justice, and both source and
content may be separately recapitulated even though
interacting and necessarily determining each other to
some undisclosed extent.

The source of the idea of justice has been sought
by many philosophers. Some of these have already been
mentioned, e.g., the Platonic idea or ethical “pattern
of it” which “is laid” in “heaven... which he who
desires may behold.” The somewhat theocratic
(Augustinian) aspect follows in this vein, and also the
logically extended divine reason, although in contrast
with the impersonal Stoics' absolute reason. There is
an ambivalence in the view that utility is the only fount
of (legal) justice and its only basis, or that the basis
lies in the concept of reciprocity which leads into a
contract theory between God and man (the Hebraic
approach) or among men (with king or state, as in
Locke or with other men, as in the Mayflower Com-
pact). Man himself and his legal needs provide another
source, with respect to the governance of his actions
and relations, avoiding injustice, and otherwise resolv-
ing disputes. So, too, the source may be found in his-
tory, custom, or the spirit of the people (Volksgeist),
as in Maine, Savigny, or Herder; or, as Cicero put it,
“the origin of Justice is to be found in Law” (De
legibus, I. vi, 19), or even, as A. Brecht suggests,
“Sometimes a voice within us claims to know” what
is just and unjust. Brecht also lists twelve types of views
of justice which he examines and then concludes, “One
who changes from one conviction [source] to another
will thenceforth have a different idea of justice.”

The choice of one or more of these sources of the
idea of justice is not required of the individual. Hera-
clitus, for one, would not approve, and Aristotle, for
another, would insist upon distinctions, that is, should
an economic, political, or other factor influence the
source most closely approximating it; but if one's in-
terests determine the choice, this permits the basis for
the choice itself to return to the enumerated sources
themselves, and now this circular reasoning requires
another Alexander to cut the apocryphal knot. Aris-
totle's view of man as a social-political animal permits
a multiplicity and combination of choices to be made,
for modern pluralism stresses the variety of man's
interests, associations, and not only social solidarity
(Duguit) but even individualism (Laski), while Protag-
orean humanism and some correlative forms of pragma-
tism permit freedoms in choices almost without stint.

The very many elements which enter into the defini-
tion or content of the idea of justice cannot, of course,
be systematically classified through an arbitrary ar-
rangement of the components, for this presupposes the
possibility of discrete, analytical distinctions, nor can
it or they be subjected to content analysis. Any such
effort can only disclose what the term “justice” vari-
ously connotes rather than what the content of the idea
of justice itself contains. The content of the idea may,
nevertheless, be understood, if not defined, by both
positive and negative characteristics, and also by means
of illustrations; the terms, however, vary with different
thinkers' usages, as when Cairns refers to Plato's view
of justice as “doing one's own business and not being
a busybody,” or as M. R. Cohen sums up Plato “...
as saying that justice is the health of the body politic”
(Reason and Law, Glencoe, Ill. [1950], p. 92), or when
M. Radin refers to social, spiritual, etc., aspects of life
and concludes that “out of these factors there has been

created a social emotion which we call a sense of
justice” (“The Chancellor's Foot,” Harvard Law Re-
view, 49 [1935], 48).

The following characteristics which permit justice
broad latitude therefore merely indicate, and are not
exhaustive of, the meanings of the idea. Foremost is
the principle that the like be treated alike (equality,
impartiality, to each his own due), and other versions
of the idea refer to: harmony (ethics, morality); right-
eousness (equity, fairness); reason (man, divine, reli-
gion); reciprocity (contract, eye-for-eye); utility
(pleasure, pain); custom (group, tribe, polis); man, his
interests and needs, especially of order, and see also
Leibniz' mature definition of justice as caritas sapientis,
the charity of the wise man which, R. J. Mulvaney
believes, “is without verbal antecedent... in the
entire history of Western moral philosophy” (Journal
of the History of Ideas, 29 [1968], p. 53).

The idea of justice can also be understood by means
of historically concrete illustrations, e.g., in the bases
used for making judicial decisions, or in the political
treatment of minorities which is allegedly the mark
of a civilized society. So also it may be understood
in a negative aspect, e.g., as in diplomatic practice or
in international claims procedures which use the phrase
“denial of justice” to indicate a departure from some
sort of international standard. This negative approach,
however, is better disclosed where treatment based
upon color, national origin, etc., is labeled as unjust,
e.g., the “slaughter by command” of millions during
World War II which resulted in Nuremberg's condem-
nation of such unquestioning obedience (although
compare this type of obedience with the concept of
nomos applied at Thermopylae in 480 B.C. where
Leonidas and the Spartans voluntarily met their death;
so did Socrates in 399 B.C.). This slaughter by command
illustrates an unjust act or conduct, i.e., that injustice
flows from certain facts; there are, of course, other
variations of this negative terminology. This sense of
injustice in effect creates a series of negative criteria
which, by contrast, reveal the positive content of the
idea of Justice more clearly.

BIBLIOGRAPHY

Works on jurisprudence, political theory, social philoso-
phy, and those of particular authors mentioned contain
discussions of justice. Of special interest are the following,
most of which also contain references or bibliographies.

Aristotle, Nicomachean Ethics, and Plato, Republic, and
their other works, any edition. E. K. Allen, Aspects of Justice
(London, 1958). O. A. Bird, The Idea of Justice (New York,
1967). E. Bodenheimer, Jurisprudence (New York, 1940), p.
47. A. Brecht, Political Theory (Princeton, N.J., 1959), pp.
136, 155. E. N. Cahn, The Sense of Injustice (New York,
1940). H. Cairns, Legal Philosophy from Plato to Hegel
(Baltimore, 1949), p. 551. T. N. Carver, Essays in Social
Justice (Cambridge, Mass., 1932). L. Duguit, Law in the
Modern State, trans. F. and H. Laski (New York, 1919). D. E.
Emmet, “Justice and Equality,” Philosophy, 14 (1939),
46-58. E. N. Garlan, Legal Realism and Justice (New York,
1941). D. R. Hillers, Covenant: The History of a Biblical
Idea (Baltimore, 1969). L. T. Hobhouse, Elements of Social
Justice (London, 1922). R. Jaffe, “The Pragmatic Conception
of Justice,” Univ. of California Publications in Philosophy,
34 (Berkeley, 1960). W. Kaufmann, “The Origin of Justice,”
Review of Metaphysics, 23 (1969), 209-39. H. Kelsen, What
is Justice? (Berkeley, 1957). H. D. F. Kitto, The Greeks, rev.
ed. (New York, 1957; reprint, 1965), p. 176. J. H. Muirhead,
The Platonic Tradition in Anglo-Saxon Philosophy (London,
1931). H. J. Muller, trilogy of Freedom in the Ancient World
(1961); Western World (1963); and Modern World (New York,
1966). F. A. Olfason, ed., Justice and Social Policy (Engle-
wood Cliffs, N.J., 1961). C. Perelman, The Idea of Justice
and the Problem of Argument, trans. J. Petrie (London,
1963); idem, Justice (New York, 1967). Plato, Republic, trans.
B. Jowett, 3rd ed. (Oxford, 1888; New York, 1901). H. Potter,
The Quest for Justice (London, 1951). R. Pound, “Social
Justice and Legal Justice,” Century Law Journal, 75 (1912),
455-63. J. H. Randall, Jr., “Plato's Treatment of the Theme
of the Good Life...,” Journal of the History of Ideas,
28 (1967), 307, 319. A. Ross, On Law and Justice (London,
1958). H. Spencer, Justice (New York, 1891). R. Stammler,
“The Idea of Justice,” Univ. of Pennsylvania Law Review,
71 (1923), 303-17; idem, The Theory of Justice, trans. I.
Husik (New York, 1925), pp. 89f. F. M. Stawell, “The Mod-
ern Conception of Justice,” International Journal of Ethics,
19 (1908), 44-60. J. Stone, The Province and Function of
Law (Cambridge, Mass., 1950); idem, Human Law and
Human Justice (Stanford, 1965). G. del Vecchio, Justice,
trans. Lady Guthrie, ed. A. H. Campbell (New York, 1953).
A. Verdross, Abendländische Rechtsphilosophie (Vienna,
1958). J. H. Wigmore, A Panorama of the World's Legal
Systems, 3 vols. (St. Paul, Minn., 1928). E. Zeller, Outlines
of the History of Greek Philosophy, trans. L. R. Palmer, 13th
ed., rev. (London, 1931; reprints, 1948, 1955).

MORRIS D. FORKOSCH

[See also Equity; Law, Ancient Greek, Due Process, Equal
Protection, Natural; Platonism; Pre-Platonic Conceptions.]