What is Justice? Part Three: A Working Definition
This is the third essay in a series about justice. In Part One we observed that everyone wants justice but we disagree about what it requires. In Part Two we concluded that there must be truth about justice, and that we can pursue the truth about justice using the same methods that we use to understand truths about dogs and friendship. We know that dogs and friendship exist, and we know what they are. We can achieve the same certitude about justice.
In this essay, we’ll begin our study of justice with a working definition. It is arguably the most important and influential definition of justice in human history. So, though we will modify and improve the definition in later essays, we’ll start with it.
The authors of this definition did not abolish slavery. But their writings provided the justification and motivation for those who did abolish slavery. They did not extend religious liberty, free speech, or due process of law to all human beings. But the rights and duties that they articulated and the institutions of law that they described provided the foundation for civil liberties, due process, equal protection of the laws, and the rule of law throughout the Western hemisphere. The authors of this definition of justice crafted the raw materials from which most of the great achievements of justice have been built.
The authors were the jurists of the sixth-century Christian emperor Justinian. The books they wrote, collectively known as the Corpus Juris Civilis, became the definitive treatises on justice throughout Christendom. The world’s first university, the University of Bologna, was founded for the express purpose of teaching and studying the Corpus Juris Civilis. Every law student read them. Every great judge quoted them. They framed the conceptual categories that eventually gave us the rule of law.
The Institutes and Digests of Justinian made it possible to think about equal justice under the rule of law, and so made it possible to achieve equal justice under the rule of law. Because law can have objective meaning, it can stand above the powerful, even above the sovereign. Because law can stand above the sovereign, the law is not merely the sovereign’s commands and prohibitions. The most powerful men can be subject to the law. And it is possible to have human rights, which are not contingent on the will of the sovereign, do not change with the shifting fortunes of war and politics, and can belong to all human beings.
Because of Justinian’ jurists, we can deny that might makes right. And we can explain in detail how justice makes right.
The jurists thought that justice is important. So, they oriented their entire account of law toward justice. The Institutes opens with a definition of justice. Here it is, in English translation (drawing on a classic translation by J.B. Moyle.):
Justice [iustitia] is the set and constant purpose which gives to everyone what he is due as a matter of right [ius suum cuique].
A lot is packed into that sentence. Let’s unpack it.
First of all, Justinian’s jurists teach that justice is the point of law. Today, most ruling elites think the point of law is social engineering, and the highest and best study is legislation or economics or sociology. Too many lawyers assume that the point of law is to achieve the best result for one’s client, and law is basically procedure. Many activists, and a growing number of officials and educators, insist that the point of law is social justice or equality of outcome. In that case, we should dispense with the artificial distinctions of the law altogether and study systems of power and inequality instead.
However, we cannot understand the law that we have if we assume that the point of law is winning, or perfecting the human condition, or achieving equality of result. For nearly all of Western legal history, legal education and practice began with the proposition that the point of law is to achieve justice. The lawyers and jurists who shaped the law acted on the understanding that the entire point of their decisions and actions was to achieve justice. They built the law to achieve justice because law is the means by which we achieve the goal of justice.
So, to understand law, we need to study justice. And to achieve justice, we need to study law.
Second, Justinian’ jurists define justice as a disposition, a way of interacting with other people and the world. Justice is the set and constant purpose to do something. Justice is not a state of affairs out there in the world but rather is a disposition or attitude or continual intention that is interior to an acting person. Justice is, in the words of the great tradition, a virtue. Justice is something that must be in me, and must drive and motivate my choosing and intending and acting.
Justice is not about getting the best possible results for my client or my race or my gender or my religious group or my political party. The result that my client or my tribe wants is not always the just result. Nor is justice primarily about engineering society, making the world conform to my desires or opinions. Justice is instead a disposition or a virtue. It must begin and reside in me, shaping me to conform to what justice requires.
Third, justice is not dependent upon outcomes or consequences. Nor does it depend on my particular circumstances. I can be just toward other people whether I am rich or poor, comfortable or uncomfortable, even when other people are unjust toward me. If someone defames me, for example, I can still speak truthfully and charitably about them… or at least say nothing in return.
Nor is justice about equality of result—what we today call social justice. The jurists tell us that the virtue of justice is a disposition to give to everyone what each is due or owed. And we owe different people different things. What is due to a person differs according to who they are, what they do, and, sometimes, on where they are from or where they are located. I owe more to my own children than to other children. I owe honor to someone who acts courageously and dishonor to a con man who steals life savings from vulnerable old people.
Therefore, to insist that everyone be treated the same is actually a kind of injustice. To achieve perfect equality of outcome requires us to do away with all distinctions and discriminations, which makes it impossible to reason practically about our differences.
If justice is not about outcomes, then what is its point? The point, Justinian’s jurists tell us, is to give or render or bestow to every person what he or she is due or owed. To understand this statement, we need to read it as it was written. What lawyers read when they opened the Institutes is this: “Iustitia”—what we today call justice—is the set and constant purpose or disposition to give to everyone “ius suum cuique”—what we would today say is his or her property as a matter of right, or what is due to the person as a matter of law.
Notice that the term for right and the term for justice have the same root: “ius.” The right and the just are the same thing. Today, when people speak of rights they tend to mean personal claims or entitlements. The first-person perspective of a right today is the point of view of the person who believes he is owed something.
The perspective of the Institutes is the other way around. The point of view of justice and rights is the perspective of the acting person, the person who owes something to others. Rights are about justice, which concerns what is right to do. And, by derivation, injustice is what is wrong to do.
This was the perspective of the entire legal tradition throughout Europe, England, America, and the other former English colonies right up until the day before yesterday. Thomas Aquinas, the most important philosopher to write about justice, took his definition of justice from Justinian. (He also built upon it, adding important insights that we will consider in later essays.) William Blackstone, the great English jurist whose Commentaries on the Laws of England has, more than any other written work, influenced American legal doctrines since it was first published 1765, defined law as that which requires us to do what is right and forbids us to do what is wrong. American jurists such as John Adams, James Wilson, Joseph Story, James Kent, and Abraham Lincoln all accepted that definition as obviously true.
So, if you want to understand fundamental rights in our legal tradition then you must stop thinking of rights as entitlements. Rights are directed at what we owe to others, not what others owe to us. Rights direct our own action and our own attitude. They point us to the equal dignity and different properties of other human beings. They call us to act justly toward others.
Justice is the disposition or virtue of rendering to others what belongs to them as a matter of right. That is not all there is to say about justice. But that is our point of departure.