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The American Legacy De Tocqueville: Frederick Douglass: Barbara Jordan: 1976
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JUSTICE: ANCIENT AND MODERN Justice, Aristotle wrote, is the political good and the highest political virtue. Law regulates politics. Consequently, law-making is the highest form of politics, and giving a people its fundamental laws is the greatest test of statecraft. Justice, however, judges laws. We design laws hoping that they will be just and we argue that particular "unjust" laws ought to be changed. Even regimes which are relatively "lawless," scorning the restraint of constitutions, claim that it is unjust to follow rigid, outdated laws. The Soviet Union, for example, appeals to the Marxist "science" of history, claiming that what history commands is just and suspends ordinary law. The defenders of any constitution, Aristotle observed, will claim that it is just. Justice, like love, has many meanings. I will be discussing two radically different ideas of justice, one which derives from ancient Greece and from Christianity and Judaism, and the second, which grew out of the Renaissance and the rise of commercial and industrial civilization. It is important to establish at the outset that just because people disagree about the meaning of justice, it does not follow that justice has no meaning. People disagree about a great many things. Sometimes, some of us are wrong. Sometimes, all of us are. Not so many years ago, most scientists argued that there were "inferior" races. And so on. Since we disagree about justice, some or all of us are surely wrong. But the very plurality of definitions of justice and the zeal with which people believe their system is just tell us that people care a good
deal about justice. At the very least, we want to seem just because we would be ashamed to be thought unjust. Justice is a human quest, sometimes a passionate one. As justice is blind, in trying to discover
justice we listen to arguments rather than looking for beauty, but otherwise, justice and love are much the same. We do not stop looking for love because we have been mistaken or because other people love
differently. We continue to look for love, in the first place, because we have some idea of what we are looking for, and second, because it seems to be our nature to do so. In the same way, it is our nature to
talk about Human nature is at the heart of disputes about justice. Both ancient and modern ideas of justice, for all their differences, begin by accepting
the definition which Cephalus gives to Socrates at the beginning of Plato's Republic: justice is giving someone what is due him. We feel we have acted justly when we treat someone as we feel they ought to be
treated. We have given them what we owe them, what belongs to them, what is proper for them and hence is their "property." But what is it that is owed In fact, first of all we have to answer the question, "What is it to be anything? How do we go about discovering what anything is? Classical and modern theories of justice give very different answers to the question, "What is a thing, really? And how do we find out what a thing is?" Given that difference, it is not surprising that the two sorts of theory disagree about what it is to be human and to treat human things justly. Classical theory is called "teleological," which is to say that it is concerned with the natural ends and goals of things. Classical
theorists argue that a thing (and accordingly, a human being) is not simply what it used to be or what it happens to be at the moment. Theorists like Plato and Aristotle also ask, "What is a thing going to
be? Toward what does it naturally incline?" The nature of a thing is not only what it appears to be, it is preeminently what it grows into. Aristotle observed that the nature of the acorn is the oak tree,
because when we look at an acorn we cannot understand it without realizing that, according to the nature of things, it would become an oak. The seemingly prosaic statement, "Socrates is a man," points
toward a similar truth. "Man," for the classical theorists, is not the average man or woman. Fully human beings have developed human excellence. They are extraordinary--just as only a few acorns
actually become oak trees--because they have grown to the stature which All human beings naturally incline toward excellence and we admire and envy exceptional people because, at this fundamental level, they are like us. Christian theologians, in the medieval period, sometimes referred to Jesus as humanitas, humanity in its true form, as the human being truly is according to nature. The rest of us, in this view, are only pale imitations, the acorns to the oaks which are Jesus or Socrates. Modern theory, on the other hand, views things "ontologically." It looks backward from what we are now to what we used to be: nature,
in modern theory, is where we began, not where we end. To modern thinking, the classics' concern with natural ends is gobbledygook, mere speculation and probably only the projection of our preferences onto
nature. To modern thinking, all that can be said is what we are now and where we came from, and to discover what we truly are, modern theorists look to our beginnings. For Aristotle, and classical theorists
generally, human nature is found in a fully grown human being who has enjoyed a fully human environment. Moderns see the natural human being in the child, or, more precisely, in its biological inheritance.
Natural man, according to early modern theory (echoed in some recent television shows and motion Classic and modern theories can be compared in a second way. Modern theory is analytic. That is, modern theorists characteristically argue that
to find out what a thing is, you must divide it into its parts. Modern theory hopes, by this process, to discover the ultimate part that can't be further It ought to be clear that this is a consequence of ontological reasoning. According to modern theory, to discover what human beings are like
naturally we must take away their education and their schools, their language, their culture and their community experience. All of these things are conventions, accidents and not essences, things which might be
different than they are. Modern theory seeks the one, last remaining thing that is human when all these excrescences have been stripped away. But as classical theorists observed, if, seeking the core of an onion, you keep peeling away external layers, you will eventually get to nothing. The onion is composed of layers, and if you do nothing but analyze, you will never understand onions. The part is not more important than the whole; things exist in context, in relationships which may be natural in general though accidental in particular. It is accidental that we speak English and that we are Americans, but, just as classical theory argued, a human being without some language or family or society would not be a human being. At best, he would be stunted or distorted, almost a parody of humanity, like a tree trained to grow sideways. To the classics, things can only be understood as parts of wholes, in their relationship to other things Language itself can only be understood as a relationship between words. Long before modern philosophy, Plato and Aristotle understood that all language (like all human life) depends on certain assumptions. If you persist in asking me to define my terms, I will eventually get to the point where I can't give you a definition. Every definition requires the use of the verb "to be." Every deflnition requires us to say that "X is Y." And there is no way that I can define "being" without assuming its existence. Even to try to define "being," I would have to say that being "is" something, and that involves assuming the thing to be defined. I can define some things only if I take other things for granted, and only if I see the thing to be defined in relation to other things. Seeing things in their relationship to other things, as parts of wholes, makes it easier to understand them. If we see human beings in families,
in politics or in cultures we understand much more about them than if we look at individuals in isolation. Similarly, we understand more about human beings if we see them as parts of the whole, nature than if we
try to abstract them from nature. In this view, classical theory is "holistic" or Having said this much, it is easier to talk about the political consequences of these ideas. For modern thinkers, like the liberal theorists who shaped our formal political institutions, human beings are born free. That is, human beings are born as individuals who are morally complete. Once we get rid of everything else, as modern theory urges us to do, we come down to the inexorable fact of the separate human being, locked into one body with one set of senses. I can make noises which call up pictures in your head, but I cannot see with your eyes or feel with your fingers, and if I die, I am all by myself. We live and die, according to modern theory, alone. And because we come into the world alone, we have, modern theory tells us, no natural obligations to anybody. Nature's rule is, "take care of number one." Protect yourself, advance your interests, guard your own, and above all, stay alive. Just as you do not owe anybody anything else, always remember that neither do they owe you. The rule of nature is that law of self-preservation which James Madison ranked with "the transcendent law of nature and of nature's God." Moreover, as 17th and 18th century liberals conceived of him, natural man was not a rational animal. Human beings at the beginning are creatures of passion and will who have only desires, needs and wants. A human being, according to the moderns, is naturally a creature of his passions. Those passions tell us to want to live forever, to live comfortably and to have enough--in fact, they tell us to want more than enough in case next year proves to be a bad one. By nature, human beings want to do whatever comes to mind. Unfortunately, nature doesn't let us. The natural world, as modern theory sees lt, is a place of scarcity, shortages and frustration. Despite our will, our desire or our dignity, we will die sooner or later. The weather will sometimes be too cold and sometimes too hot. People we want to go to bed with refuse to do so. The world is full of such unpleasantness. As a result, we spend our lives struggling for the ability to do what we want to do. "So that in the first place," Thomas Hobbes wrote, " I put for a general inclination of all mankind, a perpetual and restless desire of power after power that ceaseth only in death." This struggle for power is identical with our love for liberty. Modern theory tells us that when we can do what we want to do, then we are free. Since, in the modern view, our desires are infinite, we need infinite power to be free. Even self-preservation, which makes us want to live forever, puts us at odds with nature. By nature, we are at war with nature, naturally striving to master nature itself. Our fellow humans follow that same path, of course, and they seek to make us do what they want, just as they often resist doing what we want. That each of us is free is an obstacle to the freedom of the other. And human beings are more dangerous opponents than nature because they are harder to predict or trust. To master nature, we must master them too. The world, in these terms, is naturally a struggle between rulers and ruled, tyrants and tyrannized, oppressors and oppressed. Fortunately, liberal theory tells us, reason modifies that bleak prospect. Reason, in the modern view, is only the instrument of the passions,
the desires which are truly natural. Seeking to serve the passions, reason tells us that this endless, internecine conflict is stupid. Even if I have the ability to win fights, I lack security. As Hobbes
observed, the weakest human being can kill the strongest by stealth or conspiracy. Reason tells us to combine. Together, we can more easily beat up someone else, and--for security--one of us can sleep while the
other watches. Societies and states, modern theory asserts, are created by this prudential calculation of forces. We form societies and states hoping that we will get more power and, hence, that we will be
freer, than if we are alone. Reason teaches us to "give up" some of our natural independence in order to be more secure and more effective with what power remains to us. Political society is
fundamentally undesirable, a limitation of our natural freedom, justified only so far as it more effectively meets the demand of essentially In all of this, there is a kind of natural justice for liberal and modern theorists. Natural justice is whatever I can get: what belongs to me is what I can lay hold of or give shape to. By "mere nature," Hobbes declared, the only rule of property is "every man's that he can get, and for so long as he can keep it." Civil justice, justice in political societies, differs. We set up rules and procedures as limits on our freedom of action. We agree to obey the
rules and follow the procedures, but we do not agree to accept or share the values, goals and aspirations of any of our fellow citizens. We agree, in the language of the loyalty oaths, that we will not overthrow
the government by "force, violence or other unlawful means;" we do not pledge to support the government or its fundamental principles. After all, Civil justice is a second-rate sort of justice. We would all rather be tyrants, or so modern theory tells us, able to do whatever we want as soon as we want it. Since that sort of tyranny is impossible (at least, until science makes us fully masters over nature, as modern theory was confident it would, in the end,) we settle for the procedures of political, civic justice, and political justice can make no higher claim on our allegiance. To the ancients, this whole argument turns on a radically inaccurate premise, the notion that human beings are born free. Not in the least, Plato and Aristotle would have answered. Human beings are born the most dependent of all the animals, the most in need of nurturance and support from their fellows. The classics understood far better than moderns (especially modern Justices of the Supreme Court) that life outside the womb is only part of a continuum with life inside. There is no radical break when the child emerges into open air. Any genuine freedom for human beings presumes a long, continuing history of good care. The development of our higher faculties, such as speech, reason or the arts, requires an even longer dependence and apprenticeship than does physical survival. Any freedom or independence we eventually attain, whether of body or spirit, the classics observe, is founded on the work of others. We become free only by owing debts that we cannot repay to our families, our friends and our polities. And it increases our obligation if those who cared for us did not expect repayment. The freer their giving, the greater our owing. The greatest freedom,then, entails the greatest indebtedness and obligation. Our lives are given to us, like our names. This does not mean that we are wholly creatures of society, unable to call it to account. Quite the contrary, classical theory sees us as more than family members, social animals or citizens. It sees political society, and all lesser human groups, as parts of nature, indebted in their turn to nature as a whole, obliged to respect nature's law and forms. Society owes something to our humanity. Political society owes us the greatest possible development of our human nature. It owes us speech, education, and the kind of concern that will lead to the development of reason. In liberal-modern theories, by contrast, while you owe society very little, it is difficult to say that society owes you anything. Consider the statement that society "doesn't owe you a living." In classical theory, political society owes you a good deal more than that. It owes you a human life, which includes all the things necessary to reach the fullest possible measure of humanity. This includes the right to be a citizen and participate in political life. In the pure sense, citizenship is ruling and being ruled in turn. When we vote, we are rulers for one brief moment of one day. The great majority of the time, however, we are ruled. Our moment of rule is serious, and our officials and our rulers never forget that we are sovereigns on election day, flattering us in brazen ways in order to win our votes. Few courtiers in old-time monarchies would have been so transparent. In the classical view, however, citizenship required much more participation and much more ruling. Aristotle, who defined citizenship as ruling and being ruled, argued that of the two, one must first learn how to be ruled. Being ruled is a right and an art to be learned. We are so much the products of liberal and modern theory that it strikes us as peculiar to say that human beings have a right to be ruled. Most of us, however, do want to be ruled at least a good part of the time. There is nothing more intolerable than always to be responsible. Decisions which affect our families, even decisions which seem purely personal, are difficult and agonizing. How much more difficult it is to be responsible for war and peace or the livelihood of millions. (By contrast, it is easy and amusing to have opinions on these matters.) We create an office like the Presidency to make those life-and-death, war-and-peace decisions, in part, so that the rest of us can get on with
the business of making a living and pursuing our private bents. When was the In fact, it is an important advantage of politicality that it gives me the right to demand that you share burdens with me and that you take on part of the obligation of rule. Classical political theory aimed to make people strong enough to bear the burdens which human begins must bear, and second, it gave them the right to ask other human beings to share those burdens which are too heavy, especially those burdens which no one can bear alone. Modern theory, by contrast, promises to free us from our burdens; especially through the progress of science in mastering nature. Such progress, it is argued, will reduce our obligations to our fellows and our need to make claims on them. For the classics, justice is, and when political communities give us what is necessary to realize the highest virtues of which we are capable, including the discipline of obedience, the loyalty of friendship and the exercise of political responsibility. Eor modern theory, we are treated more justly when we are given the greatest freedom, including the freedom from discipline, loyalty and responsibility. Increasing freedom, in turn, requires victory in the war against nature. To the classics, human beings are not at war with nature. They are a part of nature, and to be at odds with nature is to be in conflict with their own humanity. The modern view, seen from a classical perspective, is futile and self-defeating. If, above all else, human beings seek to preserve their lives, then they reject their own mortality. To hate your mortality is to hate yourself, for you are mortal. Far from being free or pursuing your "self-interest," the modern view represses your real self and its interests. Your self's interest is the interest of your real, mortal and limited self; most behavior we call "self-interested" is not self-interested at all. More than mortality is involved here. The "war with nature" rejects our dependence, is ashamed of our needs and despises passivity. In this sense, modernity condemns all the qualities historically thought to be feminine. Modernity, then, is radically sexist in a way that even Aristotle, for all his belief in the inequality of the sexes, is not. Even more important, the "feminine" qualities for which modernity has contempt are human qualities and to disown them, in the name of independence, rejects the self. To deny one's self is to act unjustly, denying the self its due. Moreover, that injustice slights our freedom. Human liberty is brave, not indulgent: it acts courageously in spite of danger, and it does not try to wish risks away. Given our nature, classical theorists argued, human justice must be political justice, and political justice requires the small state. Modern theory looks to the big state, for large states have more political power. You are far less likely to have an electric garbage disposal or a nuclear reactor if you live in Andorra than if you live in the United States, but classical theory did not regard such devices as essential to the good life. To the classics, only the small state can be just, because if I am to give you what is your due, I have to know who you are. I have to know you not only in terms of what you appear to be at present; I have to know your past and how you have become what you are; I have to know something about where you are going. If you were an unattractive child and became lovely in adolescence, I should know it. Behind your beautiful facade is probably a self-doubting, self-rejecting little child. To acquire the knowledge I need to treat you justly,I must be close to you for a long time. Justice demands intimacy and stability. In the large state, by contrast, we begin with the knowledge that Jimmy Carter cannot know us personally. He can only know us as categories, through abstractions like "the American people" or, more specifically, "Northeastern working-class people," and the like. Government policies are designed on the basis of classes and categories, which is the best we can expect in a large state. Justice in a large state is imperfect justice. Similarly, the small state encourages shared associations, feelings and memories, lessening the tension between private feelings and the public good. In a large state, even public symbols may conceal very dissimilar feelings. "Land where my fathers died," we sing, "land of the Pilgrims' pride." That song places Roman Catholics in a difficult position: their fathers were not Pilgrims, and it is doubtful if their real fathers and the Pilgrims prided themselves on the same things. And so on. When we were a much smaller state than we are now, Nathaniel Hawthorne said that America was too vast by far to be taken into one small human heart. Our justice is second-rate, limited to appearances and surfaces. We deal with semblances like wealth, power and costume. In a small town, I may not need collateral for a loan if my character is known to be good, but I am not likely to be so lucky at Chase Manhattan even if, as the ads say, I "have a friend" there. The friendship of great cities is superficial, and people learn to trust the material power of their fellows more than their unknown souls. In Act I of Shakespeare's Othello, Brabantio accuses Othello of having won Desdemona by some sort of witchcraft. After all, Brabantio says,
my daughter is younger than Othello; he is a foreigner; he is poor, relatively; he is ugly. It is "against all rules of nature" for my daughter to love someone like Othello. All of Othello's
defects--his age, his lack of money, his ugliness--are matters of appearance or material well-being. Only The Doge speaks for classical theory, which rates the soul above the appearances in defining our nature. For him, it is the most natural thing in the world for a young girl who has never left Venice to love a great general who has been everywhere. She does not love the way he looks; she loves what he can say. Desdemona treats Othello more justly than her father: she sees that Othello is more than an aging face and a low bank balance. But in large, modern states, law and policy must side with Brabantio against both Desdemona and the Doge. Modern theory attempts to make the best of it. It argues that a large state is desirable precisely because we are not known. The anonymity of
great cities and states gives me privacy. No one knows or cares what I do, and I can be allowed, for the most part, to do as I like. In the first place, however, this emphasizes that my individual, private
freedom is a by-product of my weakness and insignificance. I am not free, in the large In a large state like America, justice in a court of law consists in beins treated "fairly," according to established procedures and rules that make you "equal before the law " We presume that we have "had justice" if the two sides had lawyers of roughly equal ability, if the jury was not biased, if the judge was not partisan and if there was a reasonably fair atmosphere. Where all these conditions exist, we are inclined to say that justice has been done. To the classics, it would be evident that we have left out the verdict, the result of the trial. Was the guilty person convicted? Was the
innocent person acquitted? If not, it violates common sense to say that the trial was "just." Justice is a matter of answers as well as procedures. Justice is not done unless the guilty are punished,
the vicious are constrained and the decent and the noble are rewarded and admired. In our system, the "exclusionary rule" forbids juries to consider unchallenged evidence that you are guilty if the
police acquired it in some illegitimate way. Although it has been demonstrated that you did wrong, we treat you as though you had not. That, evidently, is a travesty of justice: in fact, we are giving you In The Godfather, Amerigo Bonasera, the undertaker, comes to Don Corleone because the courts have not punished the young men who wronged his daughter. The proper procedures were followed, but the result was wrong, and he asks the Godfather for substantive justice. It is a serious, even compelling, critique of our sort of political justice, because the questions, "Was justice done? Were the guilty smitten? Did the punishment fit the crime? Were you treated according to your due?" are always the sort of things people will ask the laws. And they will need answers. A classical theorist could not understand why we place so much emphasis on rules and procedures, why we exclude unreasonable searches and seizures, ordinarily forbid wiretaps and rule that certain kinds of confessions are inadmissable. We think such rules are important because of the risk of giving government the right to intrude on our telephone conversations, enter our houses arbitrarily, or extract confessions by torture or manipulation. Given the vast size of American society, we do not know government well enough to trust its judgment and we are not strong enough or informed enough to control it on a case-by-case basis. Government cannot know us well enough to judge us in particular cases and we do not know our rulers well enough to judge us in particular cases and we do not know our rulers well enough to judge them. We can only proceed by general rules, and our weakness as citizens makes us incline toward general rules that seem certain to do us no harm. We are more fearful of injury than we are zealous for justice. As a result, we sacrifice justice in particular cases for the sort of justice that seems suited to our society as a whole. Classical theorists would understand the argument that the whole takes precedence over the part and the political order is prior to the individual. But classical theorists would insist that we face up to the fact that we are sacrificing justice in a good many individual cases and reducing the standard of justice generally. we may have done what was necessary, but we ought not to pretend that our choice is admirable or that justice is defined by what we have established. Quite the contrary: justice in our massive regime is anxious as well as mediocre. These differences between classical and modern theory can be looked at in still another way. To modern theory, equality is a means. We are "equal before the law" and ought to be treated according to the same rule. Modern philosophic discussions of equality are characteristically discussions of the claims of equal treatment. But equal treatment can apply to a multitude of sins: the Social Darwlnist who urged the "survival of the fittest" meant that rule to apply to everybody. It is even more important that, in contrast to their enthusiasm for equal treatment, very few modern theorists believe that human beings really are equal or that we ought to make them so. Quite the contrary, modern theory presumes that each human being is unique, and that what matters is making the individual free, preserving and developing the diversities of humankind. Even Marx argued that in communist society, we will be free in an unparalleled way, able to fish in the afternoon and read in the evening, wholly able to develop our idiosyncrasies. For the liberal founders of our tradition, equality was a characteristic of the low, probably violent, pre-political "state of nature," where we all had roughly equal force. In order to establish a civilized society, all of us have to be talked into playing by the rules. I will have to pretend that you are equal to me in worth because, in fact, you are roughly equal to me in force and this pretense is necessary to cajole you into consenting to law. But that is about as far as equality goes in modern theory. Equality is a fiction or deception characteristic of political communities. This deceit helps make politics an inferior calling in our perception; the Framers began with the notion that politics is inferior to private life because politics must be premised on the idea of equality. To the classics, equality was an end and not often a means. Aristotle observes that it is unjust to treat unequal things equally, and it is evident that we do not begin as equals. The rich and the poor, the oppressors and the oppressed, the learned and the untutored are different, and it is unjust to treat them by the same rules. We know this: the graduated income tax is a rule of differentiation. Similarly, classical theory might make Robin Hood a judge instead of an outlaw. Justice is likely to take money from the rich and give it to the poor because the harmony of political society is important to us and because we owe something to the humanity of the poor (and the humanity of the rich who need to be protected against taking pride in things of dust.) Our individual abilities and excellences are, in the last analysis, not deserved. They exist by good fortune and because we borrow--or steal--from the collective stock of knowledge and art. We are created by the wholes of which we are parts, indebted to politics and limited by nature. Classical political theory points toward a politics in which there is more authority for rulers and more dignity for the ruled, not a politics
in which we are all the same. In political communities where we are known and treated with dignity, we are not so likely to resent or distrust those who command. In communities where rulers are known, they are
less tempted and less able to behave arrogantly toward those who are ruled. We can Our formal institutions ln America were shaped by statesmen imbued with liberal and modern theory. But classical ideas pervaded our families, our churches and our local communities. Classical theory can be detected in the greatest of our literature. It reminded us that no political society is just which does not acknowledge that human beings are parts of nature and limited by its law. At the same time, it insisted on the old paradox that human beings, limited and weak creatures, envision immortal destinies. The classical tradition has grown inarticulate in recent years with the weakening of the communities which transmitted it. We must learn its language again, and soon. Modernity has brought power, if not justice, and that power threatens us, all too imminently, with the fate of Babel. |
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