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Friday, June 4, 2010

Of Justice

June 4, 1756


“What is Truth?” said a jesting PILATE, and wou’d not stay for an Answer. So many are the divers characters in which Justice is display’d, so various and confus’d are the Robes in which this mute Lady is cloathed, that there are those who wou’d with as much Ease wash their Hands of her too.

Iustitia est constans et perpetua voluntas ius suum cuique tribuendi, instructed the Emperor JUSTINIAN, to young Men ent’ring upon the Study of the Laws, “Justice is the constant and perpetual Will to give to each Man what is his Due,” to which he adds that iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tibuere, “The Maxims of Justice are these: to live uprightly, to do no Harm, and to give each his Due” [Justinian, Institutiones, Lib. I, tit. I – Ed.].

But to this, we might reply as TULLY once did, that nec cognovi quequam, qui maiore auctoritate nihil diceret, “Never have I known anyone who said Nothing with more Authority” [Cicero, De Divinatione, 2.67 – Ed.], for altho’ this Definition offends not our Judgment, neither does it increase our Understanding. It is precisely what is a Man’s Due according to the Rules of Justice that we wish were known. Justice tells us to give to each Man what is his, but it fails to tell us what is his.

Fortunately, Justinian tells us that Justice is voluntas, or the Will to give each what is his. And since this Will is constans et perpetua, it must therefore be a Virtue inhering in a Man’s Character. Justice, then, is the characteristical Virtue of the just Man. But again, we are left with little more Knowledge than we possessed before; for it remains for us to discover who is the just Man? a question which, methinks, cannot be answered without previously knowing what is Justice. In other words, we are left wanting Knowledge of that which makes the just Man just. And so we find ourselves lost in a Maze of our own devising, which always brings us back to that Place from whence we set out.

“What is Justice?” ― The characteristical Virtue of the just Man. ― “And what is it about this Virtue that makes the just Man just?” ― Why, it makes him to do that which is just. ― “And what is it that makes what the just Man does just?” ― Why, Justice, of course.

Indeed! Is not this a notable and ingenious Explanation! One that explains using only that which is to be explain’d! This is true Parsimony and prudent husbanding of scarce Words. Intellectual Nourishment is so rationed as to leave the Brain feeling sated whilst the Understanding starves. Such Explanations do for the Mind as much good as a bellyful of Sawdust does for the Body.

The judicious Mr. HUME, in his Enquiry concerning the Principles of Morals, gives us to understand that there are two kinds of Virtues. There are first, the natural Virtues, those which form part of the common Patrimony of Mankind, tho’ different Men possess it in varying Degrees. Such a natural Virtue is Benevolence, or the wish to do good to our fellow Man. It is a Virtue which is more commonly felt than reflected upon, and is the Possession both of the untutor’d Savage and the refin’d European.

Second, there are the artificial Virtues, of which Justice is one, it being a Virtue that only arises when Men begin to inhabit Commonwealths. Justice requires Reflection, whose Task it is to overpower the immediate Sentiments accompanying the natural Virtues. Thus, the Judge, in dispensing Justice, must lay aside his Inclination to act according to Benevolence because, at Law, he cannot bestow the Largess of his Benevolence upon both Sides to a Dispute: Judgment must come at the Expense of one or other of the Parties adjudged.

Fiat iustitia, ruat caelum, “Let Justice be done, tho’ the Heavens fall!”, altho’ as Maxims go this is a harsh and bitter Fruit, yet it bears within it Seeds of Truth: Justice must be always honoured, even against our more immediate Inclinations to do good; it is in truth the Cement of civil Society. Benevolence, betimes, is more like the Ivy, which, however pleasant it be to look upon, oft eats away at the Mortar which holds together the very Edifice upon which it depends, whilst being convinc’d that it shou’d get sole Credit for propping it up. But here I begin to mix my Metaphors.

Sometimes it is not easy to tell Benevolence from Justice, as both concern the doing a good Deed to some Party or other. The distinguishing Mark of an Act of Justice is that it is always done according to some fixt Rule or Maxim. In the story of the Judgment of SOLOMON, no one doubts but that this King display’d superior Wisdom. But we may quibble at calling it Justice, for he acted according to no establish’d Rule. Neither of the Women involv’d in the Dispute cou’d know ahead of time that going to Law wou’d jeopardize the Life of the Infant they fought over. Thus, in Vulgar speech we refer to the “Wisdom of Solomon” but rarely to the “Justice of Solomon”. A little Obstinacy on the true Mother’s Part, or some imperceptible Perturbation in the Mind of the Judge, wou’d have meant the poor Babe’s bloody Doom. That can be no just Proceeding where the Rules are made up along the Way, no matter how felicitous may be their Issue.

I intend not to be understood as saying that Wisdom and Justice are not closely allied, but by depending upon Rules establish’d beforehand, the wise Judge will give Judgment untainted by his narrow Interest or Passion, for truly, says ARISTOTLE, διόπερ άνευ ορέξεως νος ο νόμος εςτίν, “Therefore the Law is Wisdom without Desire” [Politics, 1287a25 ― Ed.]. Where it is concerned with Wisdom, then, Justice concerns the Wisdom of Rules, not of Men, and it is of three Kinds.

First, there is the Justice of the Legislator, whose task it is to devise the best Rules which will determine the Conduct of ev’ry Citizen. He is to do this in an impartial Fashion, never taking his own Profit or Interest into account. His Justice, in short, consists in the giving Laws for the common Good.

Second, there is the Magistrate’s Justice, which is concerned with giving Force and Effect to the Laws in a way consonant with the Principles of Equity, such as the equal application of the Laws to all, and treating like Cases alike. The Magistrate concerns himself only in those Cases where he is disinterested, and where his Passions are not allowed a Voice. If he cannot do this, then the Magistrate must recuse himself.

Third, there is the Justice of the Citizen, whose Place it is to be concerned only with observing the duly enacted Laws of the Legislator and giving Aid and honest Testimony to the Magistrate charg’d with enforcing them. This kind of Justice encompasses the others, for ev’ry Legislator and ev’ry Magistrate must needs be also a Citizen. Nevertheless, it is not to be assum’d that in a Commonwealth of free Men, a Citizen may not express his dissatisfaction with the Injustices of Legislators and Magistrates; he may censure freely. But he must obey promptly.

Of Justice, I think, no Man may say more without perjuring himself.

I am, Sir, your Servant etc.

Joseph Darlington, Esq.
Darlington Close,
Horton-cum-Studley, Oxon.

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