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CONCERNING JUSTICE
BY
LUCILIUS A. EMERY
NEW HAVEN: YALE UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
MDCCCCXIV
COPYRIGHT, 1914
BY YALE UNIVERSITY PRESS
First printed August, 1914, 1000 copies
TO MY CHILDREN
HENRY CROSBY EMERY
ANNE CROSBY EMERY ALLINSON
THE ADDRESSES CONTAINED IN THIS BOOK WERE DELIVERED IN
THE WILLIAM L. STORRS LECTURE SERIES, 1914, BEFORE THE
LAW SCHOOL OF YALE UNIVERSITY, NEW HAVEN, CONNECTICUT.
CONTENTS
CHAPTER PAGE
I. THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF
JUSTICE. DEFINITIONS OF JUSTICE 3
II. THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE
SOURCE OF RIGHTS 31
III. THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY
OF ACTION FOR THE INDIVIDUAL 43
IV. JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE
INDIVIDUAL AND THE SAFETY OF SOCIETY 56
V. JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL
ACTION. THE BEST FORM OF GOVERNMENT 77
VI. THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE
POWERS OF THE GOVERNMENT. BILLS OF RIGHTS 95
VII. THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL
LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY 110
VIII. AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR
JUSTICE 121
IX. THE NECESSITY OF MAINTAINING UNDIMINISHED THE
CONSTITUTIONAL LIMITATIONS AND THE POWER OF THE
COURTS TO ENFORCE THEM.--CONCLUSION 146
CONCERNING JUSTICE
CHAPTER I
THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF JUSTICE. DEFINITIONS
OF JUSTICE
For centuries now much has been written and proclaimed concerning
justice and today the word seems to be more than ever upon the lips of
men, more than ever used, but not always appositely, in arguments for
proposed political action. Hence it may not be inappropriate to the
time and occasion to venture, not answers to, but some observations
upon the questions, what is justice, and how can it be secured. It was
declared by the Roman jurist Ulpian, centuries ago, that students of
law should also be students of justice.
By way of prelude, however, and in the hope of accentuating the main
question and presenting the subject more vividly by comparison and
contrast, I would recall to your minds another and even more
fundamental question asked twenty centuries ago in a judicial
proceeding in distant Judea. It is related that when Jesus, upon his
accusation before Pilate, claimed in defense that he had "come into
the world to bear witness unto the truth," Pilate inquired of him
"What is truth?"; but it is further related that when Pilate "had said
this he went out again unto the Jews." Apparently he did not wait for
an answer. Perhaps he repented of his question as soon as asked and
went out to escape an answer. Men before and since Pilate have sought
to avoid hearing the truth.
Indeed, however grave the question, however essential the answer to
their well-being, there does not seem to be even now on the part of
the multitude an earnest desire for the truth. Their wishes and
emotions cloud their vision and they are reluctant to have those
clouds brushed aside lest the truth thus revealed be harsh and
condemnatory. The truth often causes pain. As said by the Preacher,
"He that increaseth knowledge increaseth sorrow." People generally
give much the greater welcome and heed to him who tells them that
their desires and schemes are righteous and can be realized, than to
him who tells them that their desires are selfish or that their
schemes are impracticable. It has always been the few who have sought
the truth, resolute to find it and declare it, whether pleasant or
unpleasant, in accord with the wishes of mankind or otherwise. Such
men have sometimes suffered martyrdom in the past, and often incur
hostility in the present, even when seeking that truth on which alone
justice can securely rest.
Nevertheless, so closely linked are truth and justice in the speech,
if not the minds, of men, there should be some consideration of
Pilate's question. Whether truth is absolute or only relative has been
perhaps the most actively discussed topic in the field of philosophy
for the last decade. Into this discussion, however, we need not enter,
for such discussion is really over the problem of determining the
proper criterion of truth. Wherever be this criterion, whether in some
quality of inherent rationality or in some utilitarian test of
practicability, the truth itself has some attributes so far
unquestioned and of which we may feel certain as being inherent,
necessary, and self-evident.
Truth is uncompromising. It is unadaptable; all else must be adapted
to it. It is not a matter of convention among men, is not established
even by their unanimous assent, and it does not change with changes of
opinion. It is identical throughout time and space. If it be true now
that since creation the earth has swung in an orbit round the sun, it
was true before the birth of Copernicus and Galileo. If it be true now
that the sum of the three angles of a triangle is equal to the sum of
two right angles, it was always true and always will be true, true at
the poles and at the equator, true among all peoples and in all
countries, true alike in monarchies, oligarchies, and democracies.
Truth is also single. There are no different kinds of truth, though
there may be innumerable kinds of propositions of which truth may or
may not be predicated. Whichever criterion the philosophers may
finally agree upon, it will hold in all propositions alike. The truth
of a proposition in mathematics is the same as the truth of a
proposition in any other science, physical, social, political, or
theological. It can be no more nor less true in each and all. Again,
in every science, social and political as well as others, and as to
every proposition in any science, the truth is to be discovered, not
assumed by mere convention; and men must discover it and discover it
fully at their peril. Failure even after the utmost effort will not be
forgiven. If the truth be found it will be a sure guide in life. If it
be not found the lives of men will so far go awry. That it may be
difficult to find, that we may never be sure we have found it, makes
no difference.
Are there any attributes of justice of which we can speak so
confidently as being necessary, inherent, and self-evident? That
justice ranks next to truth, if not with it, seems to have been, and
to be, the general judgment of mankind. It has engaged the thought and
fired the imagination of the greatest minds. A few quotations from
such, ranging from ancient to modern times, will illustrate this.
The Hebrew Psalmist gloried that "justice and judgment" were the
habitation of Jehovah's throne. Aristotle wrote, "political science is
the most excellent of all the arts and sciences, and the end sought
for in political science is the greatest good for man, which is
justice, for justice is the interest of all." Early in the 12th
century the jurist Irnerius, distinguished for his learning and
for his zeal in promoting the revival of the study of law and
jurisprudence, and also as the reputed founder of the famous Law
School at Bologna, imaged justice as "clothed with dignity ineffable,
shining with reason and equity, and supported by Religion, Loyalty,
Charity, Retribution, Reverence, and Truth."
Six centuries later Addison, famed as a clear thinker and writer,
thus wrote of justice: "There is no virtue so truly great and godlike
as justice.... Omniscience and omnipotence are requisites for the full
exercise of it." Almost in our own time Daniel Webster, called in his
day the great expounder and even now reckoned among the greatest of
men intellectually, in his eulogy upon Justice Story thus
apostrophized justice: "Justice is the great interest of man on earth.
It is the ligament which holds civilized beings and civilized nations
together. Wherever her temple stands and so long as it is duly
honored, there is a foundation for social security, general happiness,
and the improvement and progress of our race." Perhaps, however, none
of these laudations is so vividly impressive as is the pithy remark of
an old English judge that "injustice cuts to the bone."
But what is this justice, declared to be so great a virtue, so
ineffable, so supremely important? I have said we feel certain of some
attributes of truth. Do we know or can we know anything certain about
justice? Is it something above and apart from the will of men, or is
it simply a matter of convention among men? Is it immutable, or does
its nature change with changing times and conditions? If mutable, does
it change of itself or do men change it? Is it universal or local, the
same everywhere or is it different in different localities? Is it the
same for all men and races of men or does it differ according to
classes and races? Again, is it single or diverse in its nature? Is
there more than one kind of justice? We hear of natural justice,
social justice, industrial justice, political justice. What do they
who use those terms mean by them? Do nature, society, industry,
politics, each have a different criterion? Still again, and briefly,
is justice an inexorable law like the law of gravitation or can its
operation have exceptions? Is it simply a quality of action or
conduct, or, as stated by Ulpian, is it a disposition or state of
mind? Finally, is it a reality or, as Falstaff said of honor, is it
after all "a word," "a mere scutcheon?"
I am not so presumptuous as to venture an answer to any of these
questions except perhaps the last. As to that, I appeal to our
consciousness, to our innate conviction that there does exist
something, some virtue, some sentiment, however undefinable in terms,
holding men together in society despite their natural selfishness, and
without which they would fall apart. It is this virtue, this ligament
of society, that we call justice. We feel that the word is not a mere
word, but that it connotes a vital reality in human relationship. If
this reality be ignored, men cannot be held together in any society.
If justice be the greatest good, as so generally asserted, then its
negative, or injustice, must be the greatest evil. Hence error in
men's opinions of what is justice will work that greatest evil.
Society as a whole is liable to error in respect to justice; has often
been mistaken in the past and may be mistaken today. The individuals
composing society are seldom, if ever, wholly disinterested and
dispassionate in their judgments. Each individual is prone to believe
that what is apparently good for himself or his group or class, is in
accord with justice. Himself persuaded that he is battling for
justice, he does not see that he may be battling only for some
advantage over others, for some individual relief from common burdens,
for some privilege not to be accorded to others; does not see that
what he is battling for may cause injustice to others. Through
ignorance of the real nature of justice, the grant to one of his plea
for what he calls justice may work grievous injustice to others. So
when altruists, warm with sympathy, obtain the enactment of laws
intended for the betterment of the less fortunate, they may at times
do injustice to others and even to those they hoped to benefit.
History records many instances where laws intended to insure justice
had the contrary effect. Many a statute designed to prevent oppression
has itself proved oppressive in operation. Many a theory of justice
has been found to work injustice. A conspicuous and familiar instance
is found in the history of the French Revolution. The Jacobins
believed that their theories if given effect would usher in the reign
of justice in France. They obtained power and exploited their theories
only to bring in the Reign of Terror, that reign of terrible
injustice.
As mistakes and grievous mistakes have been made in the past as to
what is justice, so they will be made now and in the future, and can
be lessened only by greater wisdom and forethought, by greater effort
to consider justice apart by itself, with philosophical detachment,
with minds unclouded by pity, sympathy, charity, and other like
virtues, on the one hand, or by envy, hate, prejudice, and like evil
sentiments, on the other. True, men are more enlightened now and
education is more general, but society is more complex, with more
diverse and conflicting interests, than formerly. The social mechanism
is now so intricate that even a slight disturbance in one part may
disarrange the whole. Injustice to one may injure the many. Hence the
duty of ascertaining as completely as possible the real nature of
justice is as imperative today as ever. As declared by Ulpian, this
duty is especially incumbent upon those who have to do with the
framing or administration of the laws, since justice can be enforced
only by law.
In any inquiry into the nature of justice we get little help from the
wisdom of the ancients. They wrestled with the question but seem to
have been as puzzled as we of today. Indeed, Plato represents the sage
Socrates as frankly confessing his inability to answer satisfactorily
the persistent question "What is justice?" The question comes up for
discussion by Socrates and some friends at the home of Cephalus at the
Piraeus. Socrates criticizes and punctures the definitions advanced by
the others until Thrasymachus, apparently with some heat, challenges
Socrates to give an answer of his own to the question "what is
justice?" and not to content himself, nor to consume time, with merely
refuting others. After some further discussion of various aspects of
the question, Socrates finally says, "I have gone from one subject to
another without having discovered what I sought at first, the nature
of justice. I left the inquiry and turned away to consider whether
justice is virtue and wisdom, or evil and folly, and when there arose
a further question about the comparative advantages of justice and
injustice I could not refrain from passing on to that. The result of
the whole discussion has been that I know nothing at all. I know not
what justice is and therefore am not likely to know whether or not it
is a virtue, nor can I say whether the just man is happy or unhappy."
Granting that the confession may have been intended ironically, the
further discussion did not result in any practical solution, even if
in one possible in Plato's ideal, but impossible, state. Indeed, the
inquiry is not yet closed and will not be until the millennium.
Still, upon a question so old, so important, so persistent, so
ingrained in human society, and even now receiving such diverse and
conflicting answers, a brief consideration of the earlier beliefs and
theories may not be useless. As said by Bishop Stubbs, the historian,
"The roots of the present lie deep in the past and nothing in the past
is dead to him who would learn how the present came to be what it is."
The roots should be examined by him who would understand the tree.
In Homer we get a glimpse of a theory of his time, to wit, that each
separate decision given by the magistrate in any litigated controversy
was furnished to him by Zeus specially for that case. The Greek word
for such a decision was _themis_, and it was supposed that somewhere
in the Pantheon was a corresponding deity whose special function was
to furnish the appropriate themis for each case. This deity was
shadowily personified as the goddess Themis, the daughter of heaven
and earth, the companion and counselor of Zeus. It was she who
summoned gods and men to council and presided unseen over their
deliberations. Hence she came to be regarded as also the spirit of
order without which the Greek philosophers, notably Plato, held there
could be no justice.
This theory that justice and even the laws were but the will of deity,
revealed in various ways, was long generally accepted. In Rome, in the
time of the kings, the king was the Pontifex Maximus, and as such,
with the help of the College of Priests, declared the laws and decided
lawsuits. For some time also under the Republic, when a vote was to be
taken in the Comitia upon a proposed law, the question was thus put:
"Is this your pleasure, O Quirites, and do you hold it to be the will
of the gods?" Under the Empire, despite the reasoning of many
philosophers and lawyers that the Emperor derived from the people his
power to make laws and declare the law in any given case, he assumed
and was assumed to have derived the power and inspiration solely from
the gods.
The early Christian Church also preached the doctrine that the ruling
power in the state, however established, was ordained of God and as
such was entitled to the obedience of the pious. This belief that
justice and judgment were simply the will of God, to be ascertained,
not by reason but by other means, was so general and deep that such
crude devices as trials by ordeal and battle were often resorted to
for determining guilt or innocence and other questions of fact.
Indeed, resort to such expedients for determining questions of law, as
well as questions of fact, was not unknown. In the tenth century under
the Saxon King Otto a question arose whether upon the death of their
grandfather his grandchildren by a prior deceased son should share in
the inheritance along with their surviving uncles. The king ordered a
trial by battle, which being had, the champions for the grandchildren
were the victors. It was therefore held to be the divine will that
grandchildren by a prior deceased child should inherit direct from
their grandfather. I may here remind you that trial by battle was not
formally abolished in England until well into the 19th century. And
there is even now professed a belief that the will of God can be
ascertained by counting ballots. "Vox Populi Vox Dei" is still a
shibboleth.
But the doctrine that justice is heaven born, superior to and
controlling the opinions and wills of men, did not escape challenge
even in ancient times. Those sects of philosophers known as Epicureans
and Sophists, consistently with their theory of the nature of virtue
in general, maintained that justice was merely a name for such
conventions among men as they should adjudge best for their own
utility and happiness. The most vigorous champion of this latter
theory appears to have been one Carneades, a Greek philosopher of the
second century B.C., said to have been the founder of the third
Academy and expounder of the philosophy of probabilities and to have
possessed the acutest mind of antiquity. In a course of lectures at
Rome he stated the arguments for the orthodox view of justice and
then boldly assumed to answer them and demonstrate that justice was
not a virtue at all as virtue was defined by the philosophers, but was
merely a convention; was what men should agree to be a sound basis for
the maintenance of civil society, and hence that it varied with times,
places, circumstances, and even opinions. This argument evidently had
much effect upon public opinion, for Cato urged in the Senate that
Carneades be banished because dangerous to the state.
So great was the influence of Carneades that a century later Cicero, a
disciple of the Stoic school of philosophy, thought it necessary to
refute him specifically as the chief heretic, and to uphold the
orthodox theory against his arguments. Cicero denounced with eloquent
warmth the doctrine that utility was the foundation of justice. He
declared that, not utility, but nature, was the source of justice,
that justice was a principle of nature, the ultimate principle behind
all law. To abridge the familiar quotation from his "De Republica,"
"There is a law which is the same as true reason, accordant with
nature, a law which is constant and eternal, which calls and commands
to duty, which warns and terrifies men from the practice of deceit.
This law is not one thing at Rome, another at Athens, but is eternal
and immutable, the expression and command of Deity." In his treatise
"De Legibus" he declared that men are born to justice; that right is
established not by opinion but by nature; that all civil law is but
the expression or application of this eternal law of nature; that the
people or the prince may make laws but these have not the true
character of law unless they be derived from the ultimate law; that
the source and foundation of right law must be looked for in that
supreme law which came into being ages before any state was formed.
This theory of the Stoics so eloquently urged by Cicero was
practically the _jus naturale_ of the Roman jurists of classical
times, though more moderately expressed by them. It does not seem to
have been wholly academic, but to have been actually applied at times.
In his history of Rome, Mommsen relates that even during the nearly
absolute sway of Sulla, after the fall of Marius, the Cornelian Laws
enacted to deprive various Italian communities of their Roman
franchise were ignored in judicial proceedings as null and void; also
that, contrary to Sulla's decree, the jurists held that the franchise
of citizenship was not forfeited by capture and sale into slavery
during the civil war with Marius. Later, when the church became a
power in the state there are instances where laws adjudged to be
contrary to the laws of God were refused effect. In England as late as
the middle of the 17th century Chief Justice Hobart, a judge of high
repute, asserted that "even an act of Parliament made against natural
equity, as to make a man judge in his own case, is void in itself for
the laws of nature are immutable and they are the laws of laws." In
the 18th century Blackstone assented to the doctrine of a _jus
naturale_ and wrote of it: "This law of nature being coeval with
mankind and dictated by God himself is of course superior in
obligation to any other.... No human laws are of any validity if
contrary to this, and such of them as are valid derive all their force
and all their authority, mediately or immediately, from this
original." True, Blackstone combated the doctrine that duly enacted
statutes were to be held void if the judges thought them contrary to
reason, but he admitted that that extreme doctrine was more generally
held. In this country the doctrine of a higher law than the
Constitution even, and to be obeyed rather than the Constitution and
laws enacted in accordance therewith, has had and even now has earnest
advocates.
But the contrary doctrine of Carneades and the Sophists would not
down. After Cicero and the civilians, after Hobart and Blackstone,
came our modern utilitarians, or sophists, Bentham, Mill, Austin, and
others, who have vigorously maintained with weighty arguments the
utilitarian theory of justice; and that theory is now generally
accepted by lawyers and statesmen as at least the most workable
theory in human affairs. There still exists, however, in the minds of
many the belief that above and behind all the turmoil and strife of
politics, all the flux and reflux of social movements and public
sentiment, the confusion of enactments, amendments, and repeals of
statutes, the swaying of judicial opinion, there is some law of nature
or in nature, some criterion, which if ascertained and obeyed would be
perfect justice.
This question of the origin, the foundation of justice, whether it
be of God or of men, seems to have been much more debated than the
question what is the nature of justice whatever its origin or
foundation. Yet some attempts, other than those attributed to
Socrates, have been made of old to give a definition of justice. The
earliest description I have found is that of the early Pythagoreans,
who, in accordance with their practise of symbolizing the virtues by
geometrical figures, designated justice by the square, and the just
man by the cube. Plato seems to have had a theory of justice when he
wrote in the "Gorgias," "Nature herself intimates that it is just for
the better to have more than the worse, the stronger than the weaker,
and in many ways she shows that among men as well as among animals
justice consists in the superior ruling over and having more than the
inferior." In these days our first impulse may be to denounce Plato's
statement as altogether wrong if not worse. We should remember,
however, that Plato was not considering any altruistic virtue such as
kindness, sympathy, benevolence, generosity and the like, but only
what nature indicates to be the essential condition of successful
association. Thus interpreted, are we prepared to confute the
statement? Do we know of any state of society in human or animal life
at any time, past or present, of which the contrary of Plato's
statement is true?
But passing over all other attempts of the ancients to define justice,
none of which seems to have been much regarded by contemporary
opinion, I will only cite the most famous, that by Ulpian, the
renowned jurist of the best period of Roman jurisprudence, whose
writings were most drawn upon by the learned compilers of the
Institutes and Digest of Justinian; viz., "Justitia est constans et
perpetua voluntas jus suum cuique tribuendi," or "Justice is the
constant and perpetual will to render to every one his right." This
definition was adopted by the compilers as correct and made the
introduction to the Institutes. It thus received the imperial sanction
and was quoted wherever the law of Rome prevailed, down through
medieval times and later, almost as if it were an inspired or at least
authoritative definition not to be questioned. But notwithstanding the
acclaim with which this definition was hailed, I question that it was
any improvement on that of Aristotle, who tersely defined justice as
"that virtue of the soul which is distributive according to desert."
Indeed, I think Aristotle was nearer the mark.
Upon the revival of the study of law and jurisprudence in the 11th
and 12th centuries several of the more famous jurists of that time,
Azo, Irnerius, Placentinus and others, essayed definitions of justice,
but they do not seem to have improved upon Ulpian. Their definitions
were vitiated by theological assumptions and none of them has become
a text for commentators or students. Neither in modern times has any
definition of justice been suggested which has received such universal
assent as did that of Ulpian in his time and for centuries afterward.
We may therefore return to Ulpian's definition as our point of
departure, since his definition is substantially that suggested
earlier by Aristotle, and observations on the later will also apply in
many respects to the earlier.
Ulpian's definition is elegant in style, but it does not carry us very
far in our inquiry. We are told indeed that justice is a state or
disposition of the mind, the disposition to render to everyone his
right or, as put by Aristotle, is the disposition to distribute
according to desert. It was this statement that captured the medieval
jurists and which they made their text, but it is now regarded as
incomplete and even inaccurate. One may have the disposition, the
desire, the will, to render to every one his right, but unless he can
know what is his fellow's right he may unwittingly fail to accord it
to him and thus unwittingly do injustice. It evidently is not enough
to have the disposition or will; hence the definition is incomplete,
and any definition is incomplete which does not furnish a criterion
for determining what is the given man's right.
But the definition as far as it does go is not strictly accurate. The
man of malevolent disposition who would wrong his fellow if he dared,
may yet, to avoid unpleasant consequences to himself, render fully to
every other man his right. It would seem, therefore, that justice is
an attribute or quality of conduct rather than a disposition or state
of mind, and of conduct toward others rather than of conduct toward
one's self. It is only of the conduct of men in their relations to
other men that we can predicate justice or injustice. One's conduct
may result in good or evil to himself and so be wise or unwise, but
assuming, what probably is never the fact, that it affects only
himself, in no way affects any other, his conduct is neither just nor
unjust. Robinson Crusoe, until the arrival of the man Friday, had no
occasion to consider our problem.
But, admitting that each man's conduct, whether active or passive,
does affect some other person, what is the criterion by which to
determine the justice or injustice of that conduct? It is not enough
to say that if the conduct in any degree impedes the other person in
the enjoyment of any of his rights it is unjust, otherwise not; for
then the question comes to the front, what is the right of that other
in the given case? Indeed, this latter question is the crux of the
problem of justice. The derivation of the word "justice" also shows
this. The Latin _justitia_ or _justitium_ according to some scholars
is compounded of _jus_, right, and _sisto_ or _steti_, to place, or
to cause to stand, and hence the whole word may be held to signify the
maintenance of _jus_ or right. With the question of _jus_ or right
correctly answered, the problem of justice is practically solved. The
right of the one being known, the effect of any particular conduct of
another on that right, and consequently its justice or injustice, is
determinable with comparative ease. Hence to make progress in our
inquiry we must consider the problem of rights, for we almost
instinctively accept as correct so much of Ulpian's definition as
implies that justice is to be predicated of the act of rendering to
everyone his right. We instinctively feel that if we render to another
his full right we do him full justice, and that if we ourselves are
deprived of any right we suffer injustice. What is his or our right is
therefore the real question. This will be our next subject for
consideration.