Concerning Justice. Emery Lucilius Alonzo
common burdens, for some privilege not to be accorded to others; does not see that what he is battling for may cause injustice to others. Through ignorance of the real nature of justice, the grant to one of his plea for what he calls justice may work grievous injustice to others. So when altruists, warm with sympathy, obtain the enactment of laws intended for the betterment of the less fortunate, they may at times do injustice to others and even to those they hoped to benefit. History records many instances where laws intended to insure justice had the contrary effect. Many a statute designed to prevent oppression has itself proved oppressive in operation. Many a theory of justice has been found to work injustice. A conspicuous and familiar instance is found in the history of the French Revolution. The Jacobins believed that their theories if given effect would usher in the reign of justice in France. They obtained power and exploited their theories only to bring in the Reign of Terror, that reign of terrible injustice.
As mistakes and grievous mistakes have been made in the past as to what is justice, so they will be made now and in the future, and can be lessened only by greater wisdom and forethought, by greater effort to consider justice apart by itself, with philosophical detachment, with minds unclouded by pity, sympathy, charity, and other like virtues, on the one hand, or by envy, hate, prejudice, and like evil sentiments, on the other. True, men are more enlightened now and education is more general, but society is more complex, with more diverse and conflicting interests, than formerly. The social mechanism is now so intricate that even a slight disturbance in one part may disarrange the whole. Injustice to one may injure the many. Hence the duty of ascertaining as completely as possible the real nature of justice is as imperative today as ever. As declared by Ulpian, this duty is especially incumbent upon those who have to do with the framing or administration of the laws, since justice can be enforced only by law.
In any inquiry into the nature of justice we get little help from the wisdom of the ancients. They wrestled with the question but seem to have been as puzzled as we of today. Indeed, Plato represents the sage Socrates as frankly confessing his inability to answer satisfactorily the persistent question "What is justice?" The question comes up for discussion by Socrates and some friends at the home of Cephalus at the Piræus. Socrates criticizes and punctures the definitions advanced by the others until Thrasymachus, apparently with some heat, challenges Socrates to give an answer of his own to the question "what is justice?" and not to content himself, nor to consume time, with merely refuting others. After some further discussion of various aspects of the question, Socrates finally says, "I have gone from one subject to another without having discovered what I sought at first, the nature of justice. I left the inquiry and turned away to consider whether justice is virtue and wisdom, or evil and folly, and when there arose a further question about the comparative advantages of justice and injustice I could not refrain from passing on to that. The result of the whole discussion has been that I know nothing at all. I know not what justice is and therefore am not likely to know whether or not it is a virtue, nor can I say whether the just man is happy or unhappy." Granting that the confession may have been intended ironically, the further discussion did not result in any practical solution, even if in one possible in Plato's ideal, but impossible, state. Indeed, the inquiry is not yet closed and will not be until the millennium.
Still, upon a question so old, so important, so persistent, so ingrained in human society, and even now receiving such diverse and conflicting answers, a brief consideration of the earlier beliefs and theories may not be useless. As said by Bishop Stubbs, the historian, "The roots of the present lie deep in the past and nothing in the past is dead to him who would learn how the present came to be what it is." The roots should be examined by him who would understand the tree.
In Homer we get a glimpse of a theory of his time, to wit, that each separate decision given by the magistrate in any litigated controversy was furnished to him by Zeus specially for that case. The Greek word for such a decision was themis, and it was supposed that somewhere in the Pantheon was a corresponding deity whose special function was to furnish the appropriate themis for each case. This deity was shadowily personified as the goddess Themis, the daughter of heaven and earth, the companion and counselor of Zeus. It was she who summoned gods and men to council and presided unseen over their deliberations. Hence she came to be regarded as also the spirit of order without which the Greek philosophers, notably Plato, held there could be no justice.
This theory that justice and even the laws were but the will of deity, revealed in various ways, was long generally accepted. In Rome, in the time of the kings, the king was the Pontifex Maximus, and as such, with the help of the College of Priests, declared the laws and decided lawsuits. For some time also under the Republic, when a vote was to be taken in the Comitia upon a proposed law, the question was thus put: "Is this your pleasure, O Quirites, and do you hold it to be the will of the gods?" Under the Empire, despite the reasoning of many philosophers and lawyers that the Emperor derived from the people his power to make laws and declare the law in any given case, he assumed and was assumed to have derived the power and inspiration solely from the gods.
The early Christian Church also preached the doctrine that the ruling power in the state, however established, was ordained of God and as such was entitled to the obedience of the pious. This belief that justice and judgment were simply the will of God, to be ascertained, not by reason but by other means, was so general and deep that such crude devices as trials by ordeal and battle were often resorted to for determining guilt or innocence and other questions of fact. Indeed, resort to such expedients for determining questions of law, as well as questions of fact, was not unknown. In the tenth century under the Saxon King Otto a question arose whether upon the death of their grandfather his grandchildren by a prior deceased son should share in the inheritance along with their surviving uncles. The king ordered a trial by battle, which being had, the champions for the grandchildren were the victors. It was therefore held to be the divine will that grandchildren by a prior deceased child should inherit direct from their grandfather. I may here remind you that trial by battle was not formally abolished in England until well into the 19th century. And there is even now professed a belief that the will of God can be ascertained by counting ballots. "Vox Populi Vox Dei" is still a shibboleth.
But the doctrine that justice is heaven born, superior to and controlling the opinions and wills of men, did not escape challenge even in ancient times. Those sects of philosophers known as Epicureans and Sophists, consistently with their theory of the nature of virtue in general, maintained that justice was merely a name for such conventions among men as they should adjudge best for their own utility and happiness. The most vigorous champion of this latter theory appears to have been one Carneades, a Greek philosopher of the second century B.C., said to have been the founder of the third Academy and expounder of the philosophy of probabilities and to have possessed the acutest mind of antiquity. In a course of lectures at Rome he stated the arguments for the orthodox view of justice and then boldly assumed to answer them and demonstrate that justice was not a virtue at all as virtue was defined by the philosophers, but was merely a convention; was what men should agree to be a sound basis for the maintenance of civil society, and hence that it varied with times, places, circumstances, and even opinions. This argument evidently had much effect upon public opinion, for Cato urged in the Senate that Carneades be banished because dangerous to the state.
So great was the influence of Carneades that a century later Cicero, a disciple of the Stoic school of philosophy, thought it necessary to refute him specifically as the chief heretic, and to uphold the orthodox theory against his arguments. Cicero denounced with eloquent warmth the doctrine that utility was the foundation of justice. He declared that, not utility, but nature, was the source of justice, that justice was a principle of nature, the ultimate principle behind all law. To abridge the familiar quotation from his "De Republica," "There is a law which is the same as true reason, accordant with nature, a law which is constant and eternal, which calls and commands to duty, which warns and terrifies men from the practice of deceit. This law is not one thing at Rome, another at Athens, but is eternal and immutable, the expression and command of Deity." In his treatise "De Legibus" he declared that men are born to justice; that right is established not by opinion but by nature; that all civil law is but the expression or application of this eternal law of nature; that the people or the prince may make laws but these have not the true character of law unless they be derived from the ultimate law; that the source and foundation of right law must be looked for in that supreme law which came into being ages before any