The Nature of Justice

From The Righteous State
by Severin Christensen

4.—The Nature of Justice

If the original meaning of the word “right” is investigated, one finds[1], that it just like the analogous “recht”, “ret”, means straigth; the words come from reign… to decide a direction, richten, to right; rectum is the straight, the stretched (the opposite is wrong = tortuous). Direct leads in the same way to directum, diritto, droit in the Roman languages. Larfargue thinks that the perception of justice is born out of the necessity of splitting up the land; the perception of the straight line is connected then to the urge of shaping even parts, at the time when periodical redistributions of land took place.

Also aqueous means straight, both horizontally and the corresponding great, then fair, corresponding to the natural right (because fairness especially is shown by how the one does not get any advantage over the other). Two related words are equal and equity. After Hobbes equity means to distribute equal things to equals. Equity is shown to two parties, when none of them receive favours, when they are treated equal.

The old Egyptians have in their hieroglyphs given fairness the symbol of their measuring system, the elbow. The Greek νόμος comes from a verb, which means to share. If one should want more evidence that that the perception of justice from its origin is connected to mathematical terms of equality and inequality, one can fill the abovementioned research with those opposite of the terms mentioned: for instance, the Greek had the word πλεονεξία, the wish to grab more than what belonging to him; so this expression actually addresses the disproportionate. Hesiodos speaks in “Værker og Dage” about “the crooked conviction”, and about the Goddess of Swearing, who gives problems to those, who do not “apply the straight”. English has “wrongdoing”, wrong = tortuous, the twisted. The German verkürzung, shortening, treat unfairly; it points to an aim, which has not fully been completed. The just shares the misfortune of almost all moral basic terms that it is vaguely defined, which is why it is happily mixed up with all kinds of other terms. A list of the most common mistakes must therefore be a good idea to further secure the word:

1) The confusion with the allowed (legal) is very common, but that we have already defended ourselves so strongly against that we hardly need to take further exception from that. Far more dangerous is the confusion with 2) the appropriate, the publicly useful, the biologically fortunate or even with the subjectively pleasant, whether it aims at furthering ones material interests or ones spiritual ideals.

A striking example of this is the use, which often has been done of “fairness” as a defense of political violent actions. Thus does Ihering presume that revolutions can be justified by their results: “they appeal to the incontestable court of history”. But then can sensibly only be meant that the outcome shows that the time had been rightfully chosen etc., furthermore, history might possibly prove that the new condition was a social advantage (however, a court, which in a forceful way demonstrates this, only exists in fantasy). Meanwhile, all this has nothing to do with justification, a true justification would aim at in an objective way to document that the violation had been justified by similar actual violations in the past; if this evidence cannot be heard, revolutions, tyrants’ murder, etc. will have to give up this special form of argument. It is no true justification, Brutus delivers, when he (Shakespeare: The Tragedy of Julius Caesar) states that he might not have seen passion cow Caesar’s reason, but that he is afraid that the clear sunlight shall hatch the serpentine in him, and this must be prevented: “And, since the quarrel Will bear no colour for the thing he is, Fashion it thus; that what he is, augmented,
Would run to these and these extremities”. Therefore he must as the serpent’s egg be killed before hatching. A true justification would only invoke the violations he already had done, point to the fact that there already was something to atone for, and not just be content of the possibility that something could happen. “For the sake of Rome I killed my best friend”. A lofty goal, which apart from the claim to justice gives the most excellent motive! But the proof is difficult to argue, and Rome easily becomes a cloak for private ambitions. Related to this is the thought, which justifies the suppression of a foreign nation with the intention of making amends for certain unfortunate affairs within this nation (for instance it was from time to time told that the oligarch constitution of the boer gave the British admittance to destroy their independence). In Germany that thought was widespread, that the presumably lower cultures of Poles and Danes could warrant forced germanization, etc.).

Then we come to the various twists of the principle of compensation in itself, the false compensations. To understand what the most fatal of all these misunderstandings is, we shall in short repeat what the concept of justice descripted above contains: it is fair to supply +1, when you have received +1, i.e. reciprocation at the same value; either the article itself (a loan) or an equivalent compensation in the form of work, service, money etc. Furthermore to supply -1, when oneself has received -1 (that is: has been robbed of +1), i.e. to take the stolen goods back or receive a sufficient compensation. If A and B all in all have supplied +6, it is fair , if they have supplied equally to give them 6/2 each. If A has supplied +2, B the double of that the fair compensation should be A/B=2/4. If the sufficient compensation is £1 to A, it should be £2 to B. The equality between them is apparently not an absolute equality between A and B (it sounds trivial, but is, as we shall see, hardly an unnecessary remark), but a proportional equality between the work output of A and B or effort, and the corresponding salary is 2/4=1/2.

This principle of equality is in essential correspondence with the Aristotelian Politics, part 1. “So if one or a few in spiritual superiority and political skilfulness distinguished themselves to such a high degree above all others, that these could not in any way compare themselves to them, then they would certainly be unfairly treated, if they were equalled with other people,” and this principle which was also recognized during the Roman golden age by the Roman advocates. Only during the Roman Decadence did a new way of thinking emerge: people are born equal and fair compensation must be again to introduce the equality, which had been lost as time passed. One can observe that the idea of equality is there, that the idea of compensation as fairness was there, too, but what a twist it was used for! The sentence has in newer times avidly been adopted by Rousseau, passes from that to the founder of the constitution of the United States of America, back to France, where it plays a dominant part among the principles from 1789, and to this day it is very vital in most liberal heads. So let us see, what it means. We are, according to Rousseau, “born free” and “born equal”. To this, Huxley remarks truthfully, that if this means that all children are born as political nullities… he has nothing against it; but if that means that all children are born with equal ability to become important in social organisations – citizens in the Rousseauian sense – then it is the most amazing forgery, which ever has been attempted by any political charlatan. Among children there are ruling natures, who will become mightier than the rest and make themselves obeyed without any other admission their inborn disposition. Among children these conditions arise by themselves in their organizations and their games without any pressure from the outside and without any violence or betrayal, of itself arises a “political unequality”, just because of the unequal talents. The one, who because of lack of experience in the children’s room foster the tiniest doubt about this, can examine the issue in plants, where he shall see how single individuals are born to rule over the others of the same species, the gigantic oaks, for instance, are exceptional individuals, which have inborn dispositions to develop into much larger and mightier than the others. Then it would rather easy to see, how it is a colossal misunderstanding of the social principle of compensation, if one thinks to be able to derive the right to level inequalities made up by the mindless nature, one could from that same logic find a motive to destroy all the mountains of the world and fill the valleys up with them. If the greater inborn talent has placed an individual on the ruler’s throne without betrayal or violence, there is nothing to compensate. In front of nature’s inclination towards variation it is just as futile as unfair to speak of justice. If one does justice in his position, on the contrary it would be breach with each his own, if he is removed with violence. Fairness is not to level all inequality, but as earlier put forward to create equality in certain conditions of life and co-existence. The forged idea of equality, the levelling “substitute”, is by far not sufficient to explain to us the depth of that uncertainty, which rule in the modern liberals’ ideas of fairness? Everything which can be called humane, and which benefits from the term fair, is an extract of several unlikely ingredients; apart from the already mentioned idea of equality it has a large portion of so-called Christian ideas. The most interesting of these is the attempt to introduce compensation turned upside down as a common rule in society, that is that demands were to be made of the human nature, so that one not just passively should accept violations without asking for compensation, but even, rather grotesque, directly should help and pay the attacker. That is supply +1, when one had only received -1. Even though these demands, as could be expected, never were able to come through and never were meant to become common social rules, nonetheless they stayed in the mind as unfulfilled claims and have, as mentioned, helped much to confuse the thinking of the political and social thinkers. It is very saddening to see how so to say all modern politicians and social economists, radicalists, socialists, yes, even anarchists, who normally in all matters try to be pioneers of the newest trends, still today carry around concepts of justice which directly stems from a wrong reading of Christianity, which in no way was a social teaching but only put forward individual ideals; to see how actually healthy doctrines almost drown in the most shallow ideas of humanity. That superficial nuisance, the compassionate gifts, has become one with the just, even though they no longer invoke the Christian revelation and moral directly, but the spirit of the theological morality has been preserved, the form has been modernised and has been called welfare morality. If one has a look at modern Bills, programmes form parties etc. one will find this confirmed: the whole legislation of gifts is a talking testimony about it. Does not all progressive parties agree to call public old age provision a fair demand? And the more, the more apparent will the principle of gifts “the immediate principle of subsidy” be preserved. A legal act about progressive tax can be motivated so, that it is an easy and efficient principle for the state, when the progression is not too steep, to take the money, where they are most abundant, furthermore to an end which the most radicalists subscribe to “to lessen the existing economic inequality”, it can finally be “human” to those, who do not have anything, but it can in no foreseeable way be brought in line with the teaching of compensation in equation with the supply. Since then the principle would have to be: everyone supplies the state in the same measure as he receives benefits from the state; whether this principle can be realised has nothing to do with this discussion of principles. Likewise, in the understanding of crime and punishment many things today make themselves felt which by no right are deemed fair concerns. This is quite a large playground for “the humanity”. The attempts more and more tries to overlook the right of the violated for reparation; instead of this primary task the state sees its most valuable aim in the education and reform of the criminal. From that the many attempts to change and lessen the precise assessment of the punishment, from that the many efforts of under the guise of humanizing the methods of punishment to make the criminal an unprotected victim to the capriciousness of the prison-guards etc.; all of which might be good politics, but has nothing whatsoever to do with justice. The only notion of justice, which can be found in punishment, consists exactly of the precise assessment, and yet it is not uncommon to find exactly distortions of that, stamped as justice. If one examines socialism in its contemporary appearance, one will find that theories as well as practice are just as botched. And this in spite of that it rests on a core, which more than any other system has directly sprung from considerations of justice. Which other teaching takes upon it the matter of possession from a compensational view, throw out all inherited privileges and does only recognize those, which can compensate by personal supply? And yet one can hardly see this plastically clear principle because of theological aberrations! Socialism, which has defined, what economical fairness is, forgets it again through the heat and strife of the day, and lets considerations of the special circumstances of its members extort the old plebeian siren call: that justice means that all become economically equal, that justice means that there shall be no need on earth, at justice is a special protection of the weak, the unintelligent, and the “work-shy”. Therefore, one does not only find socialists in the front row when it comes to fight for the laws mentioned and others, which have the same tendency, but in no less extent they propagate a distinct class legislation. Instead of highlighting that the party promotes an economic theory, which equally will benefit all of society, why it should be considered natural that men of all social classes joined it, it highlights the fight as a class-struggle; first it is about proletarians, which at all cost shall advance; people from other classes, who might sympathise with the movement, are being cast doubts about, they “lack the proletarian class-consciousness, which never leads astray; in the long run the working-class can only rely on itself”. That which should be built on, then is not so much the feeling of justice – which rather cannot be seen as the privilege of a specific class – as it is a proletarian instinct, an unsettled passion, bred by suppression. If the socialist theories are not revised, and this weed torn up, it might well be that the movement might land in the rising of the discontented, but that will not bring a lasting, intelligent organisation of the economical basic conditions, and least of all it will realise ideas of fairness. Yet, on another important point do the social theories shun what concerns the consequent carrying out the idea of justice. One should notice that while the socialist and anarchist writes agree about the negative, that privilege, heritance etc. should not allow for possession, and the positive, that work is the only rightful way, they completely disagree as soon as it comes to the principles of distribution. The American Edm. Kelly thinks that it is an unfair principle, at the one, whom from nature is most intelligent and can do his job with the least bit of effort, receives a larger part of the goods of society than the one, to whom the work because of his lesser intelligence is fuller of burden. He says that it is the hardship, the time and the amount of work, which should be balanced. True, but certainly just the parts of it, which by being settled in the result of the work enrich others. That which “knock in”, the phenomenon of exhaustion, the toil do not really possess that quality, and even if it somehow should be found to merit a compensation, how would it be possible to measure and assess it? The amount of work can in practice alone be measured by valuating the product, which is presented after a certain span of time, not by determining the difficulties or imperfections, the productive has suffered. A compensation, which idea is to supply a quick and a slow worker with the same for an hour’s work would in reality be payment which paid more for the lesser work, since all things considered it would be more profitable to have one’s work done quickly than slow. It would be just as stark staring wrong as to sentence the lesser criminal to the harder punishment. G. Bang[2] is open to the possibility of a gradual raise in to skill and energy, but the thought of a full individual compensation is quite foreign to him (for instance, inventors should be granted a life-time pension). Gizycki[3] does not at all believe that “a scale for the compensation for work is unnecessary”… “that the principle of economic equality, i.e. the complete ending of all salutary systems, is the only truly just and furthermore practical principle.” Why? “Since there is no such work, whose profit is due to the activity of the person in question alone.” We must remember that we are products of our parents ourselves etc., and “who can pinpoint what each individual has contributed in hand and spirit to this or that of the wealth produced by the whole nation?” Yes, the one who has not completely lost the sense of individuality can actually point out one thing or other and will not ignore what this pointing out means as a psychic motive, i.e. that it actually is of importance to a person that precisely his effort becomes recognized, and that the recognition I reflected in a suitable compensation for it, and not, for instance, goes to his “parents”. The frequent addressing “another human nature” than the one we at the moment know, is very problematic as an argument; since one has never met a human tribe whose individuals wanted to become economically or in any other way equally suited; the thrive to ascend up above the others is, like Hobbes says, the most apparent in human nature. By this one must not confuse the vision one has often had that the worst situated part should want to become equal with the highest situated. Even if the measures to ascend varies – it does not have to be economic – the urge is as far as one can judge inextinguishable, and it is a tawdry argumentation just to sustain a theory to assume a completely new type to not in the end to have problems with the use of it. Among the anarchists a similar thinking is met. Kropotkin (“The Conquest of the Bread”): We cannot admit along with the collectivists, that a compensation, which equates the hours of work, which are invested in any productions of wealth, can be an ideal”… “the necessities of the individual must be placed higher than a service, which he has done or sometime in the future will do for society.”, that is: each after his needs! I am just putting this thought forward as evidence to my proposal that the thought of compensation has not been thought trough by these social reformists – it is completely abandoned in the thinking of distribution. I am not, however, going to dig deep into the many practical impossibilities and inconsistencies, which it contains: when the lazy idler after all must be thought apart from the involuntarily unemployed, when in other words work roughly must be compensated, but not be measured – how would one get rid of the partially slacking, then; when the worth of the labour and the amount of it is independent of bait, how then force someone to work without the withdrawal of means of existence? When the occupiers of huts and shanties are situated in “the far too roomy flats of the citizens”, how should one react to, if everybody wants to live on the sunny side in Stockholmsgade? How should one measure out individual necessities, which authority should measure them; or if no authority is recognized, is any other way given than that of the insurance of such by each individual? How can one make sure that sufficiently many resign in their “needs”?

This is not really supposed to be a critique of anarchism, but it has the aim of showing the difficulties which follows from leaving the even system of compensation, which the current social order, how wanting it may be, has not completely been able to strangle. In reality, Kropotkin has nothing more to point to than the phantasy of another type of human being. That hunger should be the better spur for productive work in man, Kropotkin has any right to deny, but from that does not follow that the sanction, which lies in a meticulous assessment of the individual supply, should be dispensable as a spur; that it should be a common rule at the toil and the difficulties of the work actually should be a sufficient impulse, he certainly owes us to present the evidence of. His attempts to show that the principle generally speaking is just, since the value of human work is generally the same, can hardly be taken serious: “when two persons, who both work year after year several hours each day for society with different tasks with the same interest, we can say that they by and large their work is at the same level!” By which right we can say that, we are never told.

As one digs deeper into all these proposals and thoughts, who could be expanded into eternity, one becomes aware of the crudeness of the collectivistic systems. That these writers in question has not been able to think half of the system – the principles of distribution – through with the same energy and consequence, by which they have uncovered the negative truth about the unrightful ways of acquiring, stems from their basis in age-old underclass slogans about equality and in religious misconceptions about mercy, pity etc. confused with fairness. Instead of dealing with the economic theories with clear cool-headedness, they have allowed themselves to become infatuated by the passion, which wells up from suppression. If one in this way goes through the social and radical teachings of recent times, one will everywhere meet a lot of ghosts, which do not fit well to the modern elements, which they contain. One cannot imagine these systems as reliant guides into the future, unless they again should take up the principle of compensation and make a serious effort to its implementation. Since the more one follows the economic and political effects of this principle, the more ne will understand, that it is not taken out of thin air, at random, “invented” by some abstract philosopher at leisure, but a true teaching of life, and therefore, clearly understood, very much suited to consciously be used as the basis of new views of life.

Fairness! If one should judge from the use of the word, one should think that this was the principle, which pervades the world. Can any matter ever, be it political or economic, have the potential of breaking through, unless it becomes a fair matter? Read the speech of the Kerkira in Thucydides, read the newest parliamentary deliberations, and see, if it is not in the end this argument one adopts to secure the consent of the assembly; at one has fairness, or justice, at ones side. And yet, how often does it not turn out to be illusion; what was boosted as justice, was well-calculated smartness, petty egotism, or perhaps it was the heart, which overflew with sympathy and pity! One dare to believe, that the beautiful word mostly is used in a naïve and undeliberated confidence in its flexibility, when not even the philosophers has found agreement about its meaning, how should one demand that agitators should restraint in using it; but sometimes it also has to serve in some deliberate, perfectly mean fabrications. This is most likely to be a danger to public life that such words have so loose possibilities of interpretation, so that the common citizen cannot control the misuse of it.

[1] E. Jessen: Dansk etymologisk ordbog. Copenhagen 1893. Ihering: Der Zweck im Recht. Leipzig 1895.

[2] Gustav Bang. Den socialistiske fremtidsstat. Copenhagen 1903.

[3] Professor Dr. Georg v. Gizycki: Forelæsninger over social Ethik, trans. Copenhagen 1895.