Unpacking the history and complexities of a cardinal ideal
COLUMN
BY ELLIOTT SCHWEBACH
What is justice? Certainly, each of us hopes that our personal compass leads us toward it. Yet, how often do we pause to reflect upon this ideal? How would we define it if pressed? What is justice really? And what is justice not?
This new column will explore models of justice, histories of justice, and the experiences and movements that shape our impression of justice in various ways. Essentially, it will examine the nature of justice—at least as understood by the different people and communities that have thought about and sought to practice it.
Because we are exploring the “nature of justice,” it might make sense to begin by asking: “What is the role played by nature in justice?” Ask somebody raised in a modern democratic state, and particularly somebody familiar with western jurisprudence, and they might respond: “Not much.” To understand why, we can look to the influence of a few key factors: Roman law, Christian morality, and especially the philosophy of Plato.
It may be confusing to read that our secular view of justice as it is framed and practiced today—which entails a separation of church and state—is influenced by Christian theology. It may also be surprising to consider how just a few centuries before Plato, and before the central books of the Old Testament were taking shape, classical thinkers understood justice (and injustice) in vastly different terms.
In public consciousness during the “Homeric” age in Greece (i.e., the time of Homer), there was little separating human action from influences outside of the “self.” Classicist Arthur W.H. Adkins notes that during this time, in the Greek language, “there is no word for the body as a whole.”11 Arthur W.H. Adkins, From the Many to the One: A Study of Personality and Views of Human Nature in the Context of Ancient Greek Society, Values, and Beliefs (Cornell University Press, 1970), 21. Furthermore, one’s psyche, translated as “soul,” was not coterminous with one’s “self” or “personality.”22 Id at 14.
Rather, the human psyche actually connoted an aggregate of agents both inside and outside of the body, including natural forces and the will of the gods. In fact, nature was understood to include divine influences—there was no clear separation between the categories of “nature” and “gods.” And the “self” itself was very tenuous and fuzzy.
There are similarities between this type of worldview and those taken by other Indigenous communities:
The ethnography of indigenous America is replete with references to a cosmopolitical theory describing a universe inhabited by diverse types of actants or subjective agents, human or otherwise—gods, animals, the dead, plants, meteorological phenomena, and often objects or artifacts as well … .33 Eduardo Viveiros de Castro, Cannibal Metaphysics: For a Post-Structural Anthropology (Univocal, 2014), 56.
During the time of Homer, because there was little space for personal agency or will in comprehending human action, justice referred neither to one’s “intentions nor [their] efforts, but their results,” and it was closely linked with what we might call honor.44 Adkins, From the Many to the One, 41. By extension, what was considered just or unjust implicated a sort of natural (as well as divine) order of things. In The Iliad, for example, Achilles is compelled into battle, driven by vengeance and grief, when his friend Patroclus is killed. Justice and honor are realized when Achilles stabs Hector of Troy in the throat, a victory won in part through the intervention of the goddess Athena.
The time around 500 B.C.E. in Greece saw the emergence of a group of philosophers known as Sophists who rethought justice in interesting ways. While Plato would later depart radically from the Sophists on many issues, portraying Socrates as a philosopher who cleverly exposed their myriad faults (this is when “sophist” became an insult), the Sophists set the groundwork for later developments by distancing the concept of justice from nature.
As justice became more “social” and subjective, being anchored in the values of communities, Protagoras famously proclaimed: “The human is the measure of all things.” It was also during this time that Greek philosophy started to see a stronger and more bounded sense of self emerge, a trend that was also carried further by Plato.
Plato’s view of justice differed from the Sophists in that he took justice to be absolute, unchanging, and eternal rather than situational or contingent. It exists, for Plato, in the realm of ideas or forms “behind appearances,” or beyond what we can touch, feel, sense, or see. This makes justice about as removed from nature as it can get!
The idea of the personal, bounded self, with the capacity to will and reason, had become solidified by the time of Plato’s writing, and he helped reinforce it. Indeed, it is this position that allows Plato to argue that human beings can reason toward justice and then choose to act accordingly—i.e., in ways that are just.
This lays a foundation for righteousness as a guiding social ideal and for the ability to discriminate between the guilty and the innocent, a foundation which had a strong influence on Roman law. Centuries later, the Roman legal system would serve as direct inspiration for the forms of democratic government created in Western Europe by emerging modern states, that—through the violence of colonialism and processes of formal decolonization—would spread them.
Plato’s writings also influenced Christian theology, which through its Jewish heritage was already receptive to treating righteousness (in this case, according to one’s faith in God) as paramount. Consider the similarities, for example, between a Platonic reading of justice and the lessons imparted by the Book of Job in the Old Testament.
After suffering constant misfortune at the hands of God, including losing wealth and family to violent attackers and natural disasters, Job, a righteous man, questions God’s sense of justice. God’s lesson in this parable, as paraphrased by philosopher David Daiches Raphael is:
[T]o put away the illusion of a just order of nature. The forces of nature display power, power that goes far beyond what a human being can do; but they do not follow morality … . If one is to remain religious, as Job is apparently ready to do, reverence for God must be based on his creative power, not on his justice—or on what we would suppose to be justice.55 David Daiches Raphael, Concepts of Justice (Clarendon Press, 2001), 17.
Although acting righteously for a Platonist would look different than for a Christian, determinations of justice in both cases are put in the hands of human society. This is significant: It has left us with a framework for thinking about justice as impartial (not driven by the chaotic whims of nature or caprices of the body), as universal (through rational deliberation or the practice of faith, we can apply abstract principles to our personal and interpersonal conduct), and largely as relevant to human or social concerns alone.
While this framework for justice emphasizes our responsibility, perhaps, to our own conduct and to each other (i.e., we are kept from using “nature” or “gods” as scapegoats), are there downsides as well? Animal rights advocates and environmental lawyers might, for obvious reasons, object to keeping nature out of justice’s realm of consideration. What might it mean to extend rights to nonhuman agents such as animals66 Tom Reagan, The Case for Animal Rights (University of California Press, 1983). or even rivers and trees?77 Christopher D. Stone, Should Trees Have Standing? Law, Morality, and the Environment (Oxford University Press, 2010). To attempt to do justice to nature per se?
Beyond this, are there contradictions in our treatment of justice as universal? Do other moral and cultural traditions imply different just outcomes than those that emerge from a modern, western perspective? And how do we grapple with the longstanding, democratic histories of rights and justice remaining restricted to certain groups alone? Or the present-day structures of power and privilege that a language of universality might obscure?
If there is a risk of overprivileging universality, the same may be said for reason or the rationality of the law. In some ways, overprivileging reason may cause us to neglect the biases and emotions that play into our (seemingly neutral) legal appraisals. In others, it may cause us to push down “gut feelings” in our adherence to the law, especially when the law furthers suffering and oppression.
Something of this sort was voiced by Martin Luther King Jr., who—to counsel civil disobedience—implored: “Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.”88 Martin Luther King, Jr., “Letter from a Birmingham Jail” (1963).
It is likewise voiced when Friedrich Nietzsche, in a very different context but with rather similar language, writes: “All naturalism in morality, that is all healthy morality, is dominated by an instinct of life”99 Friedrich Nietzsche, Twilight of the Idols (in Twilight of the Idols and The Anti-Christ, Penguin Classics, 1990), 44. and “[r]ationality at any cost… has itself been no more than a form of sickness, another form of sickness, and by no means a way back to ‘virtue,’ to ‘health,’ to happiness.”1010 Id at 55.
Is it valuable to rethink the role of nature or even spirituality in justice? Is it possible to do so without abrogating civic responsibility or investing deeply (as the Homeric Greeks appeared to do) in a politics of honor? And what would a reimagined practice of justice entail?
How radically is justice transformed by the models of deliberative, restorative, reparative, and transitional justice (approaches that will make their appearance in future columns)? By advocates of disability justice, who, among other critiques, challenge the ways that the law defines a rational human being and a mind capable of reason? By environmental justice activists, who center the interconnections between social equity and ecological well-being? Or by the actions of other communities and individuals engaged in creative practices of empowerment?
While these are lofty sorts of questions, perhaps there is value in pondering them. Even the strongest compasses, after all, may benefit occasionally from recalibration.
About the author
Elliott Schwebach is a WSBA Equity and Justice Lead.
He can be reached at:
NOTES
1. Arthur W.H. Adkins, From the Many to the One: A Study of Personality and Views of Human Nature in the Context of Ancient Greek Society, Values, and Beliefs (Cornell University Press, 1970), 21.
2. Id. at 14.
3. Eduardo Viveiros de Castro, Cannibal Metaphysics: For a Post-Structural Anthropology (Univocal, 2014), 56.
4. Adkins, From the Many to the One, 41.
5. David Daiches Raphael, Concepts of Justice (Clarendon Press, 2001), 17.
6. Tom Reagan, The Case for Animal Rights (University of California Press, 1983).
7. Christopher D. Stone, Should Trees Have Standing? Law, Morality, and the Environment (Oxford University Press, 2010).
8. Martin Luther King, Jr., “Letter from a Birmingham Jail” (1963).
9. Friedrich Nietzsche, Twilight of the Idols (in Twilight of the Idols and The Anti-Christ, Penguin Classics, 1990), 44.
10. Id. at 55.