CHAPTER VI JUSTICE modern wealth THE true foundations of the state consist of the natural The true foundations instincts, casual impulses, and rational interests, which of states induce men to demand leadership, or at least to submit to and of the the authority of rulers. But the relative influence of these commonvarious factors varies greatly in different kinds of states. In backward states impulse and instinct play a comparatively large part in determining the conduct of peoples. The more energetic, enterprising, and masterful men impose their authority by force and by craft upon the inert masses. Authority once established is re-enforced by the habitual deference of those accustomed to obey, and may endure long after it has passed into the hands of men greatly inferior to the original rulers of the state. But the modern commonwealth is less dependent upon impulse and instinct for its existence. Its foundations consist in larger measure of the rational interests by which a body of people may be united in an organization of the kind called political. In some states the authority of the rulers is profoundly affected by powerful corporate sentiments, springing from the various religious, racial, cultural, economic, and social interests of the people. If the body of people which is bound together by such corporate sentiments is substantially the same as that which constitutes the state, these sentimental ties will enhance the stability of the state, and need not impair its character as a commonwealth. In modern times they frequently have had a contrary effect, because a commonwealth cannot rest on What is justice? The sentiments which not all its people may share. The rational interests which support commonwealths must be such as can be shared by all its members, regardless of creed, race, culture, or class. Such interests cannot be the exclusive possession of any special or privileged group within the state, whatever be its character. They must be public interests. The foremost of these is a people's interest in justice. What, then, is justice, this first affair of state? It is commonly said to mean that each shall receive his due. It implies a sense of right on the part of the beneficiary, and of obligation on the part of the giver. No normal man denies the obligation. Nevertheless, the greatest differences of opinion exist concerning its nature. What justice is and how it shall be established are questions which have always caused the bitterest strife, and still remain uppermost in the minds of the masses of men. The best known and most revered rule of justice in Christian countries is called the Golden Rule. This rule seems so clear, so forceful, and so easy that for the private guidance of the individual it is the most useful rule of justice in the world. No rational man disputes its wisdom. Yet it is singularly inadequate as a public guide to conduct in any organized body of people. The significance of any rule lies in its application. Now the Golden Rule makes each individual the judge of his own rights as well as of his duties to others. When it is reduced to practice, on account of the differences in the natures and conditions of men and their resulting differences of opinion, instead of one common rule, accepted by all as the standard of right and wrong, there are as many different rules as individuals. The body of people as a whole has in effect no fixed rule, received by general consent and employed as the common measure to decide all controversies between its members. Hence, though all civilized governments profess to admin ister justice, nowhere is the attempt made to dispense justice on the basis of the Golden Rule. This may properly be the ideal of Christians, but it cannot be the practice of statesmen. Justice, as the term is used in modern politics, has come Legal justice to have two different meanings: First, it means the rules of conduct which are actually enforced in any political community by authority of its established rulers. Such rules of conduct may be termed civil laws, to distinguish them from ecclesiastical or moral or natural or divine laws. Their sanction is the will of the sovereign, if we mean by sovereign that agency of authority in the community which is itself beyond the power of the law, that is, which is legally capable of amending or repealing it. Might makes right. Justice and legality become interchangeable terms. Secondly, justice may mean, not the rules of conduct actually enforced in a community, but those which ought to be enforced. In this sense of the term, justice is not a reality but an ideal. Political justice, Political as distinguished from legal justice, is the ideal of the relations which should exist between the members of the state. It is not necessarily identical with law, nor with morality, nor with anything that is actually enforced or generally observed. It does not necessarily express the will of anybody in particular, but rather the feelings and aspirations of the people in general. Its ultimate sanction is not any visible authority, but the invisible power of right reason or conscience. Political justice is not the product of force. Might does not make right, but, on the contrary, the people of a commonwealth would say that right ought to make might. The two meanings of justice serve very different ends in politics. Legal justice emanates from the established rulers. It is invoked in the name of peace and order. It tends to preserve the status quo. It is the palladium of justice The Sophist's theory of justice Might makes right vested interests, the instrument of conservatism. Political justice, on the other hand, is the instrument of the forces of change. It repudiates the claim of dominant interests to become vested rights. It challenges the old order, and subordinates stability to progress. It reflects the point of view, not of rulers, but of the ruled. In a well-ordered state many men, even in an ill-ordered state some men, are satisfied with legality. Others will not rest until either the law is felt to be just, or their ideal of justice becomes the law. It may not be necessary to justify the law to all men; but in a commonwealth at least it should be possible. 2 Efforts to justify the law are as old as law itself. An ancient and widely held justification is that put by Socrates into the mouth of the Sophist and recorded by Plato in the first book of the Republic. "We both admit," Socrates is reported to have said, "that justice is in harmony with interest; but you lengthen this into the assertion that justice is the interest of the stronger." Elaborating the theory his adversary had queried: “Have you never heard that forms of government differ, that there are tyrannies, and democracies, and aristocracies? . . . And the rulers in each state make laws democratical, aristocratical, or tyrannical, with a view to their several interests; and these laws, which are made by them for their own interests, are the justice which they deliver to their subjects, and him who transgresses them they punish as a breaker of the law and unjust. And that is what I mean when I say that in all states there is the same principle of justice, which is the interest of the rulers; and as the rulers must be supposed to have power, the only reasonable conclusion is, that everywhere there is one principle of justice, which is the interest of the stronger." And again he ridiculed Socrates, because the latter had exposed himself to the charge that he believed that the shepherd tended the sheep with a view to the good of the sheep and not to the good of the shepherd or his master, and that the rulers of states did not think of their subjects as sheep and were not ever studying how best to promote their own advantage at the expense of their subjects. Socrates routed the Sophist by a dialectic tour-de-force of the kind that has made his dialogues famous, but the opinion of the Sophist has been renewed in modern times and sustained by arguments more cogent than any with which Socrates had to deal. In modern states, however, no respectable rulers claim a The right to use their power deliberately and exclusively for of political justification the promotion of their own personal interests, regardless authority of those of others. Since Frederick the Second of Prussia popularized the doctrine that the king is the first servant of the state, the distinction between a state and an estate has been at least outwardly respected. Those who continue to hold that might makes right seek to justify the law by justifying the authority that makes the law. If they can justify a political authority which is absolute, its commands must be just, however injurious they may appear to those who are required to obey. This was done to the satisfaction of many people by 1. The means of the dogma of divine right. The way of think- the divine theory of ing which made the dogma of divine right so great a force right of kings in modern history is best illustrated by the quaint treatise of the pedantic King James the First of England, published for the edification of his dutiful subjects under the title, "The True Law of Free Monarchies." In support of his views King James naïvely cited the instance of the ancient Hebrews in the time of their commonwealth, who, tiring of the rule of their judges, prayed for a king, "that 1 Reprinted in Charles H. McIlwain, The Political Works of King James the First, Cambridge, 1917. |