The Nature of Justice

Philosophos: The primary role of government is to administer justice, what is justice?

Nomodiphas: I don’t know if I can just define it like that.

Philosophos: What do we know about justice?

Nomodiphas: We know that the rule of law is preferable to the rule of men. God’s word is the foundation of those laws. We know that God is just, so good laws are just laws.

Philosophos: So justice is something that should be found in laws, but it is distinct from the laws?

Nomodiphas: Correct. Some, like Hobbes for example, have thought that justice is nothing more than the law. In their opinion nothing is just or unjust without the law. Whoever is strongest makes the law, so justice is merely the advantage of the strong and it changes depending on is currently in power.

Philosophos: And you disagree with that?

Nomodiphas: Of course.

Philosophos: Why?

Nomodiphas: I think that Leibniz has the best critique of Hobbes’ theory of justice. First off, under a view of the rule of the strong, ‘treason, assassinations, poisonings, torture of the innocent would all be just if they succeeded.’ This would create an extremely volatile political arena. There would be no stability because every person, no matter how strong, is vulnerable. Men cannot live long in conditions of constant chaos. Leibniz went on to say that ‘if power were the formal reason of justice, all powerful persons would be just, each in proportion to his power; which is contrary to experience.’ Our lay conception of justice argues against the idea that justice is only the advantage of the strong.

In fact I believe that Leibniz has the best definition of justice. For him justice was a universal, eternal truth. Justice requires more than mere prevention of evil, but a positive obligation to procure the good. This duty to procure the good is not limitless, but rather limited to what one could do for another without bringing harm to one’s self. He used the example of a man down in a pit. Say I fell into a pit and could not get out. You walked by and there was a rope next to the pit and you could through it to me to help me get out. This action would not hurt you at all. If you refused to through the rope to me, you would be unjust.

Philosophos: I would agree with the statement that justice is an eternal value—it does not change from time to time, from person to person, or with popular opinion. But what did you say after that, that justice is doing as much as you can for another so long as it does not bring harm to one’s self?

Nomodiphas: Exactly.

Philosophos: Let me ask you this, can you think of any other examples of doing good for another that bring no harm or cost the doer nothing?

Nomodiphas: . . . Not really.

Philosophos: As a practical matter this definition is a little unworkable. Most of the time when you see a drowning kid there is no rope and it is you who must go into the water and risk your life to save him. Even charitable giving, though it brings no harm, costs the giver. Further if the government compels an action it looses its moral character. The government’s job is to administer justice; it can compel us to be just. But when it compels us to do good for other people, we lose the ability to do good for other people.

Nomodiphas: What are you talking about?

Philosophos: Think of a puppet, does a puppet do any good deeds?

Nomodiphas: Of course not.

Philosophos: Really? What if the puppet gives an ice-cream cone to a small child, is that not a good deed?

Nomodiphas: Of course that is a good deed, but the puppet is not doing the good deed the puppeteer is doing the good deed.

Philosophos: If the puppet could act alone and did this same action, would it be a good deed?

Nomodiphas: I suppose so.

Philosophos: So could you say that the puppeteer, by compelling the puppet to act a certain way takes away the goodness of the puppets action and removes the puppet’s ability to do good.

Nomodiphas: You could say that.

Philosophos: That is the effect of the government compelling men to do good deeds. If justice requires that we do all we can for others, the government must compel us to do all we can for others. In compelling us to do this, we are no longer doing good deeds; rather the government is doing these deeds through us.

Nomodiphas: I don’t get this. The government does compel us to do many things. It prevents us from harming each other for example. How can we differentiate between the things the government can and should compel us to do and what it can’t and shouldn’t compel us to do?

Philosophos: What do we owe anybody? What do you owe me?

Nomodiphas: Right now, nothing. If I had borrowed something from you or had promised to pay something to you, I would owe you that. But I haven’t done those things so I don’t owe you anything.

Philosophos: True, in that sense you don’t owe me anything. I guess what I am asking is not what you owe me specifically, but what do you owe me and every other human generally? Do you have a duty to feed and clothe me?

Nomodiphas: No, but if you were without food and clothing, it would be good for me to provide those things.

Philosophos: There is not doubt about that. In the same way it would be good for me to give you the rope if you were in the pit. But in both cases there is no natural duty to provide the good deed. Justice is what one has a right to and another has a duty to provide. While much of morality is contained in justice, good and evil exist beyond justice. Consider the parable of the man who owed his master a lot of money. He was pardoned from his huge debt from his master. Right after this he found a man who owed him a small amount of money. This man was unable to pay him so he threw him into prison. Because the second man did not pardon another after he had just been pardoned himself (and pardoned a great deal more than what he refused to pardon the latter) his master arrested him and punished him. This man was not punished on grounds of justice; he still had a right to the money he had borrowed the other man. Rather he was found to be an evil man on grounds outside of justice—he was found to be an evil man because he lacked mercy.

I do not disagree that it would be incredibly evil to walk by a pit with a man stuck in it and refuse to throw him a rope. However I do not think it is evil on grounds of justice, but rather on grounds of mercy. We as Believers have been given mercy by God and we are expected to give it to others. We are expected to forgive others when they wrong us and give to others even when they don’t deserve it because God has already forgiven us for much more than we could possibly forgive and given us far more than we have merited. We are giving not because we must, but because we choose to. Our actions may look similar, but there is a difference. We throw the rope not out of duty, but out of love. We provide for the poor not because we owe them anything, but because God provided for us in our spiritual poverty.

Nomodiphas: Are you saying that there are some things you have a right to and I have a duty to provide and that these things constitute justice, while there are other things that you may need or want and it would be good for me to provide them, in fact I am expected to provide them if I am a Christian, but when I provide these things for you it is not justice, but rather mercy?

Philosophos: Yes. Justice can be seen as what we are entitled to by right, but it is more than that. Justice entails both rights and responsibilities. We are entitled to certain things by right: the right to property, the right to bodily sanctity, we have the right to contract, and the right to the fruits of our labor. Because we have rights to these things the government has a responsibility to protect these rights. The government does that primarily by holding those responsible who violate the rights of others by justly punishing them.

Nomodiphas: How do you determine what rights we are entitled to?

Philosophos: From the Bible. We will discuss and expound on these rights throughout our discussion today.

Nomodiphas: How do these rights that tie in with the government’s duty?

Philosophos: We are all born with natural rights. We freely create governments and commission them to protect these rights. They protect our rights primarily by holding those responsible that violate our rights by means of just punishment. This agrees with the Roman notion that justice requires that we ‘render to each his own.’

If I work hard and sow my labor into something I have the right to the fruits of my labor. The government has a duty to ensure that I receive what I am entitled to by right. The government protects this right by holding those responsible who violate this right of mine and take my products. In this case holding them responsible for their actions requires compelling them to provide restitution for what they took from me. The criminal forfeited his right to his property when he violated my right to property and the government enforces this forfeiture of right by forcing the thief to take from his property a like amount and give it to me. In other words the government holds criminals responsible by punishing them, and when possible punishing them in a way that makes the victim whole.

Punishment must be in proportion to the crime. When one violates the law of nature by infringing on the natural right of another, they forfeit their corresponding natural right. The government justly punishes them by enforcing their forfeiture of right. For example, one who steals, who violates the right of property, does not forfeit his life; rather he forfeits his right to property to the same degree. The same goes with bodily sanctity. The government protects my right to live or not be harmed by holding those responsible who do harm by punishing them to a like degree for the harm they inflict. It is eye for an eye—you lose the right you took from another. If you end someone’s liberty by killing them, you lose your liberty to live—either through execution or by life incarceration. The same goes with rape, if one takes someone's right to consent to sex, then they lose their right to have sex (i.e. castration). We have a right to contract, but in order for that right to have any meaning the government must protect that right by holding those who contract responsible to the terms they have agreed upon.

In order for any of our rights to have any real substance they must be enforced by holding those responsible who violate them. Justice is equilibrium. The government’s job is to balance the scales of justice. It must protect rights by holding violators responsible. When one violates the right of another they forfeit that corresponding right in themselves. The government enforces the forfeiture of their right by means of just punishment. Just punishment is the act of the government taking rights from the one who violated the rights of another to the same degree that the violator forfeited his own rights by taking rights from their victim. Further, when possible, just punishment requires the state to coerce the violator to restore the rights they took from the victim. (To, for example, return stolen property).

I think this is one area where our system is faltering. Our government is so focused on wrong 'rights' (and extra Biblical issues like obesity and the environment) that it is losing sight of the responsibilities that make our true rights possible. We are constantly fighting for rights and freedom, but against responsibility. For example we want free love, but without the responsibility of being a parent. Or we are so focused on the criminal's right to rehabilitation that we are failing to protect the rights of victims by adequately punishing criminals. How often are criminals not justly punished, which allows them to continue to victimize people? By not being justly punished the rights of others are not protected. I think the reason why they are not justly punished is because of our confusion of mercy and justice. We are giving criminals gifts of mercy (rehabilitation programs, leniency, forgiveness etc.) because we believe they have a right to them. This confusion is hurting justice.