Justice

The discussion of justice in the Oresteia is the earliest sustained treatment of the subject in the tradition of the Great Books. It is set in the form of a trilogy in which an original wrong gives rise to a second wrong done by way of redress, and this to a third, until no further private act can bring the matter to an end. Agamemnon sacrifices his daughter and is killed by his wife; Clytemnestra having killed her husband is killed by her son; Orestes, in having avenged his father, has incurred the blood-guilt that falls on the killer of a mother. The Furies pursue him. At each stage the act that restores the balance is also the act that disturbs it, so that justice conceived as requital alone proves incapable of bringing the sequence to rest.

Aeschylus is not content to leave the matter there. In the Eumenides he traces the passage from the older retributive order to a form of justice that only the city can administer. Orestes flees to Athens. Athena institutes a court. The Furies are persuaded, though with difficulty, to accept a place in the new order and to surrender their private right of pursuit to the public authority. What has been achieved in the process is not the abolition of vengeance but its transformation: the blood-claim, which could not be put to rest by any further act of the same kind, is lifted out of the family and placed in the hands of a civic institution where it can be adjudicated and brought to a close. Justice, so understood, is inseparable from the establishment of the political community itself.

This treatment raises a number of questions to which the tradition returns under other ideas. The relation between justice and the public authority of law is considered under Law; the transformation of private vengeance into public punishment under Punishment; the bearing of divine upon human justice under God and Fate. In Aeschylus the three are not yet disentangled, and what gives the trilogy its weight is precisely the way they are made to bear on one another.

Plato and Aristotle take up what the tragedian had dramatized and place it within a more systematic frame. Where Aeschylus had shown the blood-feud exhausting itself and giving way to the city's court, Plato will ask what the just city is and whether a just soul must be one ordered like it; Aristotle will distinguish the several senses in which the word is used, and will separate the justice which is a particular virtue from the justice which is the whole of virtue exercised toward one's neighbor. However different in method, each begins from the same scene the Oresteia had set: a wrong which cannot be righted except by something more than a private act of return.

The question of justice in Sophocles is stated most sharply in the Antigone. Creon, as the new ruler of Thebes, has forbidden the burial of Polyneices, who has fallen in the assault on the city. Antigone, his sister, buries him notwithstanding. The confrontation that follows is not between a just person and an unjust one, but between two claims each of which, taken by itself, has something to be said for it. Creon's edict derives its authority from the need to keep the city together after a civil war; Antigone's act derives its authority from the obligations that family and religion lay upon the living with respect to the dead. Each is, on its own terms, a claim of justice. What the tragedy shows is that they cannot be fully reconciled.

Sophocles is not neutral between them. Antigone's words draw a contrast that has become one of the founding utterances of the natural-law tradition. What she has violated is an edict of a man; what she has obeyed are laws not of yesterday or of today but always, whose origin no one can say. The distinction she draws between the edicts of the city and an older, unwritten justice is not equivalent to the philosophical distinction between natural and positive law which later writers will formulate, but it makes the formulation possible. Creon, for his part, speaks for the city's claim that the good of the whole must be secured before any other consideration; his error, as the play unfolds, is not in having raised that claim but in having absolutized it against every other.

The problems raised here belong partly to the idea of Law, partly to that of Duty, and partly to the idea of Family. Whether there is a justice higher than the city's and by what faculty it is discerned is a question taken up in the treatments under Natural Law and under God. What Sophocles contributes is the first clear assertion that the conflict between the two justices is a real conflict and not a misunderstanding; the hero who appeals from one to the other does so at the cost of her life.

Plato will take up the question under a different head in the Crito, where Socrates refuses to escape from prison on the ground that the laws of the city have a claim on him which a private act of self-preservation cannot override. The answer seems opposite to Antigone's, but it is not formulated against a different question. Aristotle will note in the Rhetoric that an orator may appeal from the written to the unwritten law when the written law fails, and he cites Antigone as the classic instance. The space within which all the later discussion will take place is the one the tragedian had first opened.

The discussion of justice is the central theme in two dialogues of Plato, the Republic and the Gorgias. In the Republic, Thrasymachus advances the thesis that justice is nothing other than the interest of the stronger, and that the laws made by those in power constitute justice for those who are subject to them. In the Gorgias, Callicles argues similarly that the strong have the right to rule and to possess more than the weak. Against both, Socrates maintains that justice is something real in the nature of things and not merely a name for the advantage of those who happen to hold power.

Plato's answer is given in terms of a parallel between the state and the soul. As the well-ordered city has three classes, each performing its proper function, so the well-ordered soul has three parts: reason, spirit, and appetite. Justice consists in each part doing its own work and not meddling with what belongs to the others. The just man is not described primarily as a doer of good deeds toward others, but as one whose soul is in a condition of interior harmony. It is this interior order, rather than any external conformity to law, that Plato identifies with justice.

The implications of this conception extend to the question raised in the Gorgias, whether it is better to suffer injustice or to do it. If justice resides in the health of the soul, then the man who does wrong injures himself more gravely than his victim, for he destroys what is most precious in his own nature. The connection between justice and happiness, treated more fully under the idea of Happiness, follows from this same identification of justice with spiritual well-being.

Plato's definition of justice as an interior condition of the soul stands at the beginning of the tradition, and every subsequent theorist must come to terms with the question it raises: whether justice is primarily a quality of the person or a quality of actions and institutions. Aristotle will take up this question by insisting on the irreducibly social character of justice as a virtue directed toward the good of others.

Aristotle agrees with Plato that justice is a virtue but differs from him in conceiving it as irreducibly social. "Justice alone of the virtues," he writes, "is thought to be 'another's good,' because it is related to our neighbor." Where Plato defines justice as a harmony within the soul, Aristotle treats it as a habit of action concerned with what is due to others and to the community. He further distinguishes general justice, which he calls "complete virtue" insofar as it directs all virtuous action toward the good of one's fellow men, from special justice, which concerns the particular matter of fair dealing.

The analysis of special justice turns on two modes of equality. Distributive justice allocates honors and goods in proportion to merit: equals are to be treated equally, and those who are unequal in desert should receive unequal shares. Commutative or corrective justice, by contrast, operates on the principle of simple or arithmetic equality, seeking to restore the balance disturbed by injury or unfair exchange. The sphere of corrective justice, as Aristotle describes it, covers both voluntary transactions such as sale and purchase and involuntary ones such as theft, assault, and fraud.

Aristotle observes that while all men agree that distributive awards should be according to merit, they do not all specify the same standard of merit. Democrats identify it with the status of freeman, supporters of oligarchy with wealth or noble birth, and partisans of aristocracy with excellence. The question of which standard is correct is treated more fully in the chapters on Democracy and Aristocracy, but it bears directly on the theory of justice, since the fairness of any particular distribution depends upon the criterion of desert that is employed.

Aristotle's analysis provides the conceptual vocabulary that subsequent thinkers employ in their discussions of justice. His distinction between distributive and commutative justice is taken up and developed by Aquinas, and his identification of justice with what is fair or equal becomes the common framework within which later disagreements about the standard of fairness are conducted.

Augustine introduces into the discussion of justice a theological dimension that transforms the terms of the classical analysis. If justice requires rendering to each what is due, then God, as the source of all being and goodness, is owed supreme worship. A commonwealth that fails to render God his due cannot, on Augustine's view, achieve true justice in any of its other dealings. The state without justice he describes as "no better than a band of robber thieves," differing from a robber band only in scale and not in moral character.

Augustine applies this standard to Rome itself. The Roman commonwealth, however admirable its civic institutions, fell short of true justice because it did not worship the true God. This judgment does not mean that earthly states are incapable of all order or all fairness; it means that the perfection of justice exists only in the City of God, which is not identical with any earthly polity. The distinction between the two cities, developed more fully under the idea of God, bears upon the theory of justice by establishing that the ultimate measure of right dealing among men depends on their relation to a standard higher than any human institution.

The practical consequence of this view is that political authority, while necessary and even beneficial, can never be self-legitimating. The question whether a kingdom differs from a robber band cannot be settled by appealing to its power or to the mere existence of its laws, but only by examining whether its governance conforms to the order of divine justice. This criterion provides the ground on which unjust rulers may be judged, a position that Aquinas will develop more systematically through the framework of natural law.

Augustine's insistence that justice is theological at its root shapes the mediaeval tradition and raises a question that modern thinkers from Hobbes onward must confront: whether a secular foundation for justice is possible, or whether the removal of the theological ground leaves justice without any standard beyond convention and power.

Aquinas undertakes a synthesis of the Aristotelian and Augustinian traditions on justice. From Aristotle he takes the definition of justice as rendering to each what is due, together with the distinction between distributive and commutative forms. From Augustine he takes the insistence that the ultimate ground of justice lies in the divine order. The instrument of this synthesis is the doctrine of natural law: the participation of rational creatures in the eternal law of God, by which reason can discern the principles of right dealing among men.

Justice, Aquinas writes, is "a habit whereby a man renders to each one his due by a constant and perpetual will." Unlike courage and temperance, which concern the passions, justice is a habit of the will directed toward what belongs to another. It is in this sense that justice "alone of all the virtues implies the notion of duty." The Aristotelian framework of distributive and commutative justice is preserved, but it is embedded in a larger theory of law. Positive law is just only insofar as it derives from natural law; a law that departs from natural law is, in Aquinas's formulation, "no longer a law but a perversion of law."

This doctrine provides a standard by which human institutions and enactments may be judged. If the principles of justice are features of the moral order discoverable by reason, then the laws of any particular state can be measured against them and found wanting. The subject is not bound to obey a law that commands what natural law forbids. The question of obedience and disobedience that this raises is treated more fully under the ideas of Law and Duty, but it bears directly on the theory of justice, since it determines whether justice is ultimately conventional or natural.

Aquinas gives the natural law tradition its most systematic formulation. Hobbes and those who follow him will deny that any standard of justice exists prior to the sovereign's will, and in so doing they will be rejecting precisely the position that Aquinas here establishes: that reason, consulting nature, can determine what is just independently of what any human authority commands.

Hobbes takes the position that, in a state of nature where there is no common power to enforce agreements, the notions of justice and injustice have no application. "Where there is no Commonwealth," he writes, "there is nothing unjust. So that the nature of justice consists in the keeping of valid covenants; but the validity of covenants begins not but with the constitution of a civil power sufficient to compel men to keep them." On this view, justice comes into being only with the establishment of sovereign authority; prior to that, men have unlimited natural right but no obligations that could be called just or unjust.

The content of justice, for Hobbes, is exhausted by the keeping of covenants. His Third Law of Nature prescribes "that men perform their covenants made," and in this rule alone consists the whole of justice. There is no appeal to a higher law, no natural standard of fairness antecedent to the sovereign's commands. The breach of civil laws or covenants may be called injustice, and the observance of them justice, but these terms derive their meaning entirely from the civil order under which men live. The question treated under the idea of Law, whether positive law can be measured against a law of nature, receives from Hobbes a negative answer.

This position has consequences that extend to the evaluation of governments. If justice is determined by the sovereign's will and there is no prior standard against which that will can be judged, then the sovereign cannot, strictly speaking, act unjustly toward the subject. The government itself, its constitution, its laws, and its acts, since these determine what is just and unjust, cannot themselves be judged for their justice. It is this conclusion that Locke's doctrine of natural rights is designed to oppose, as treated under the idea of Liberty.

Hobbes's conception of justice as entirely dependent on civil authority stands in direct opposition to the natural law tradition of Aristotle and Aquinas. Hume and Spinoza share elements of his view, holding that justice has meaning only where there are recognized titles to property and legally established rights, though they differ from Hobbes in their accounts of how conventions arise and what moral sentiments attend them.

Hume agrees with Hobbes and Spinoza that justice is not a natural property of actions discoverable apart from human conventions, but he gives a different account of how those conventions arise. Justice, in Hume's analysis, is an "artificial" virtue, not in the sense of being arbitrary or contrived, but in the sense that its rules originate from human experience of their utility rather than from instinct, divine command, or the nature of things. Where there is no recognized title to property, there can be no justice and no injustice.

Hume argues that certain circumstances make rules of justice necessary. If goods were superabundant, no one would need rules governing their distribution. If human beings were perfectly benevolent, no conventions of property would be required. Justice arises under conditions of moderate scarcity and limited generosity, where stable rules of property and promise-keeping are needed to sustain the cooperation on which society depends. It is these circumstances, not eternal law, that generate the principles of justice. The connection between justice and the conditions of social life is treated more fully under the ideas of Custom and Convention and Wealth.

Once conventions of justice are established, however, Hume maintains that they acquire genuine moral force. We develop a sentiment of approval for just conduct and disapproval for unjust conduct, rooted in our sympathetic concern for the public utility that the rules of justice serve. Justice is thus artificial in its origin but moral in its operation. It may be regarded as a custom or moral sentiment based on considerations of utility, rather than as an obligation derived from natural law or rational duty.

Hume's account provides the foundation on which Mill will construct the utilitarian theory of justice. It also furnishes the position against which Kant reacts most forcefully, for Kant denies that justice can be grounded in sentiment or contingent facts about human psychology, insisting instead on an a priori principle of practical reason.

Kant conceives justice not as a sentiment, a convention, or a quality of the soul, but as an a priori principle of practical reason. Where Hume grounds justice in the utility of social conventions, and Hobbes in the will of the sovereign, Kant holds that the principle of right is discoverable by reason alone and is binding on all rational beings independently of their particular desires or circumstances. Justice, on this view, is a necessary condition of rational agency, not a contingent fact about human psychology or political arrangement.

The universal principle of right, as Kant formulates it, requires that the free exercise of each person's will be compatible with the freedom of every other person under a universal law. Justice concerns only the external conditions under which free beings can act without interfering with one another. It does not prescribe the pursuit of happiness or the cultivation of inner virtue; it prescribes the form that external action must take if a plurality of free wills is to coexist. The authority of the state is grounded in its role as the enforcer of this universal law of freedom, and the question of political obligation, treated more fully under the idea of Duty, receives from Kant an answer quite different from that of Hobbes.

From this principle it follows that persons must be treated as ends in themselves and never merely as means, a formula that bears on questions of punishment, property, and political right. Punishment, for Kant, must respect the dignity of the offender and be proportioned to the offense; it cannot be justified merely as a deterrent or as a means to social utility. Rights, on this conception, are not derived from calculations of aggregate welfare but are antecedent to and constraining upon such calculations. The question whether justice is categorical or dependent on consequences is perhaps the deepest issue dividing Kant from the utilitarian tradition.

Kant's view that perfect justice would harmonize a multitude of individual wills in free action stands in contrast to Aquinas's observation that justice, however necessary, is insufficient for social harmony, since the bonds of love and charity unite men where justice merely governs their interaction. Mill, for his part, will argue that rights themselves derive their authority from utility, and that the categorical character Kant attributes to justice is better explained as the special urgency of those utilities on which human well-being most depends.

Mill addresses the apparent conflict between the utilitarian principle and the claims of justice. If morality consists in maximizing happiness, it may seem that justice, which appears to impose absolute obligations, must rest on some foundation independent of utility. Mill's answer, developed in the fifth chapter of Utilitarianism, is that justice names the most weighty and urgent class of moral rules: those which protect the conditions of human well-being so essential that they are felt to have a more absolute character than any other rules for the guidance of life.

The sentiment of justice, Mill argues, is rooted in the impulse of self-defense combined with the capacity of sympathy, expanded by reason into a concern for the security and rights of all. What distinguishes claims of justice from mere benevolence is that justice involves a right: something a person may rightfully demand of others, and which society ought to defend. To have a right is to have something that society ought to protect one in the possession of, and the ground of this obligation is general utility. Rights, on Mill's analysis, are not independent of utility; they are utility at its most urgent, the point at which the protection of individual security becomes indispensable to the common welfare.

Mill also insists that nothing less than universal suffrage provides a just distribution of political status, and that withholding from anyone the ordinary privilege of having his voice reckoned in public affairs constitutes a personal injustice. The connection between justice and liberty, treated more fully under the idea of Liberty, is central to Mill's political thought, for he holds that a man is entitled to all the liberty he can use justly, that is, without injury to others or to the common good. More liberty than this would be license.

Mill's utilitarian account of justice represents the most sustained attempt to reconcile the intuitive weight of rights with the principle of general utility. Whether this reconciliation is fully successful remains a question that Marx, approaching from a different direction entirely, will reframe by asking not what justice requires but whose interests any given conception of justice serves.

Marx does not engage directly in the controversy between natural and conventional justice, yet his analysis of economic exploitation seems to assume a principle of justice that does not derive from but rather measures human institutions. In his consideration of the exploitation of labor in its various historic forms, including chattel slavery, feudal serfdom, and what he calls "wage slavery" under industrial capitalism, Marx appears to take it as self-evident that a clear principle of justice is violated when the goods produced by one man's labor enrich another disproportionately to that other's contribution or desert.

The labor theory of value, which Marx attributes in its origin to Adam Smith, provides the analytical instrument for this judgment. If the value of commodities is determined by the labor socially necessary to produce them, then the extraction of surplus value by the capitalist constitutes an injustice, however fully it may conform to the laws of contract and property that obtain under bourgeois society. Marx grants that bourgeois justice represented an advance over feudal justice in abolishing personal bondage and establishing formal equality before the law. But formal equality, he argues, is not material equality; the worker who sells his labor under conditions of economic necessity does so under duress, whatever the legal form of the transaction. The connection between justice and the institution of property is treated more fully under the ideas of Labor and Wealth.

In the Critique of the Gotha Program, Marx distinguishes two stages of communist society: the first, in which distribution follows the principle "to each according to his contribution," and the higher stage, governed by the maxim "from each according to his ability, to each according to his needs." He suggests that in a society beyond class division and scarcity, the categories of right and justice would lose their application, since the conditions that make rules of distributive fairness necessary would no longer obtain.

Marx's contribution to the discussion of justice lies less in a positive theory than in the question he raises about the relation between conceptions of justice and the material interests of particular classes. This ideological-critical perspective transforms the terms of the discussion by asking not merely what justice is, but whose interests any given formulation of justice may serve, a question that connects the theory of justice to the broader problems examined under the ideas of State and Revolution.