CHAPTER III. SOME OPINIONS ON JUSTICE, NATURAL LAW, AND RIGHTS. ral law, justice and rights. § 55. We will now endeavor, by way of supplement, in a few Opinions on natu- brief sketches, to set forth the opinions on justice, natural law, and the nature of rights held by some of the principal writers of ancient and modern times. The main current of Greek thought on jural questions was directed towards the enquiry into the nature and origin of justice. The Sophists denied the objective nature of justice, and man was the measure of all things; which might mean that what the state pronounced to be right and just was such, or that what the individual thought to be just was such. Thus there were two sophisticul tendencies, the unlimited. right of the state to bring all things into conformity with the prevailing subjective view, and the unlimited right of the individual to overturn the state and rule it as a tyrant. The rights of the individual in the state, and over against the state, and determining by their imperative nature what the justice of law ought to be, were not distinctly recognized by the Greek philosophers. Plato enquired earnestly into the nature of justice, and the constitution of the just state; but the individual, he thought, existed for the state, and law was to be shaped with reference to the state's welfare and permanence. A Platonic definition of justice for the individual is found in the words rà aÚTOû Tрáттe, to mind one's own business, to fulfil duties and do one's part within a certain sphere, but the sphere is fixed Plato. *Repub. iv., 10, p. 433 B. "This we have heard from others and have said ourselves," says Socrates. by the state. In the Republic, where, however, the ideal state is intended as an enlarged image of the soul, the classes of inhabitants are determined by the state, there is no free marriage and no family, but in fact a communism exceedingly gross in some respects. Political justice is thus that harmony of the parts and elements of society, which corresponds to the "good order of the parts of the soul towards one another, and in relation to one another," in which the Platonic definitions of an uncertain author make justice to consist.* Another definition of justice in the same collection-that it is "a habit that apportions to each one that which is according to his worth "-puts, as I understand it, the conception of the value of the individual in society, according to the qualities which differentiate him from others, in the place which the modern conception of equality, as the standard of justice, occupies. In the Laws-to adopt the words of Hildenbrand (Gesch. d. Rechtsphilos., § 43)—" the sphere of private right is most intimately connected with the organization of public life, and is entirely controlled by the state. The state distributes the immovable property, it determines the amount of movable property, it puts obstacles in the way of inheritance by clumsy coins current only within. its own limits, it decides what kinds of business citizens and denizens shall pursue, it forces the citizen at a certain age into marriage, prescribes to him how many children he shall procreate, etc." See especially, books viii. and xi. Aristotle. Aristotle describes justice as a mean between two extremes, and the doing of justice as a middle thing between wronging and being wronged. "The just man is he who practices justice of course, and apportions a share both to himself over against another, and to another over against some one else, not so as [to take] more of that which is desirable for himself and [to give] less to another, and to do the opposite in respect to that which is harmful, but so as to take and give equally of that which is propor * Comp. the discussion in Repub. iv., pp. 433-435 tionately equal, [as between himself and another], and to do the same as between two other persons." (Ethic. Nicom., v. 17, p. 1134). Political justice or right he makes to consist of two parts, the natural, or that which has everywhere the same validity, and the legal, or that which the laws make such. The former, for its origin, is to be referred back to the divine being. There is a common right and wrong by nature, although there may be no society or compact between the persons concerned. (Rhet. i., 13, 2, p. 1373, where he quotes the noble passage in the Antigone, v. 456-7). But in the constitution of the state he shows, as far as I can judge, no recognition of any right of the individual against the state, although he avoids some of the errors of Plato. ery. The opinions of these two great philosophers respecting Opinions on slav. slavery are a test of their doctrine of rights. Plato, in a brief but remarkable passage of the laws (vi. 776 B. and onw.), shows himself to be aware of the practical difficulties attending slavery, but he makes slaves a component part of the state, the laws and constitution of which are there discussed; he dreads familiarity with them and a treatment of them which is due to freemen; and he would have those of the same race kept apart from one another. In short, all his difficulties centre in the questions how to treat the slave—“ man being a difficult animal to get along with," and what practical distinctions are to be observed between him and the free master. (777 B.). But Aristotle makes the slave an essential part of the economy of life. (Polit. i., 2, 3-7). Slaves are such by nature, his definition of a slave by nature being that "he does not belong to himself but to another, while yet he is a man." here he has to face the question which had been started by others (ibid., 3), whether by nature there is any such person as a slave, and whether or not all slavery is contrary to nature. His solution is that by nature something rules and something is ruled;-thus the soul rules the body, man, the beasts, the male man, the female; and hence those men who are as much inferior to others as soul to body, or man to beast, ought to be under the control of others, and are naturally slaves. Nature wishes to express the difference between the two classes in their bodily constitution, so that slaves. shall have bodies strong for necessary uses, and freemen, bodies erect, but useless for such labors; yet it often happens, on the contrary, that some slaves have the bodies of freemen and some the souls of freemen. What, then, is the distinctive mark between the classes? Shall law decide? But many, says Aristotle, charge the laws with being unlawful, on the ground that, if there is no natural slave, force must make the difference, and especially victory in war. To this he answers again, that a successful war at the outset might be unjust, and that the best-born persons might be reduced to slavery. Or shall we say, he asks, that the barbarians are naturally intended to be slaves? But it does not follow that the descendants of barbarian slaves will have the characteristics of the slave by nature. Thus, although slavery is founded on nature, we cannot divide men once for all into two parts having permanent characteristics. At this point, as another remarks, we stand in expectation of some practical consequences, but Aristotle stops short of them, and contents himself with accepting the opinion of the Greek race, that the barbarians were intended to be slaves, and the Greeks to be freemen. He wishes, also, that those who cultivate the soil should be slaves, if possible (iv. or vii., 9, § 9), and expresses the intention to speak in a part of his Politics, which is lost or never was written, on the importance of holding out the hope of liberty to slaves as a reward for good conduct. If it had occurred to Aristotle that the condition of the barbarian slaves might, after all, be a transitory one, that a system of education might raise them up into a capacity for political life, and into equality of endowment or something like equality with the Hellenic race, his defence of the naturalness of slavery would have appeared to him untenable. * Hildenbrand, Gesch. u. system der Rechts u. Staats philos., i., 399. He might have fallen back on the necessity for society to have a working, uneducated class, in order that another above them might addict itself to political affairs. But this would hardly have been satisfactory to a mind like his. Stoics. It is interesting to notice that the Greeks asked what man was intended for by nature, although they failed to reach the truth of individual rights; just as they failed to reach the true monotheistic doctrine, when Pindar, Eschylus, and Sophocles gave forth the noblest thoughts on divine righteousness and providence. Early was the distinction made between what human law and what divine statutes required. “I did not think," says Antigone, "that thy proclamations had so much power, that thou, being a mortal, couldst over-ride the unwritten and steadfast ordinances of the gods. For not today and yesterday only have these been living, but everlastingly, and no one knows how long ago they appeared.” The inheritance of the best moral ideas of Greek philosophy fell to the Stoics, who, by the doctrine that virtue consisted in living according to naturethat is, both to the law of general and of human nature,-by their approach to the principle of human brotherhood, by the dignity they attached to moral freedom and to the life of a philosopher who was the true king, infused a new spirit of humanity and justice into law, and contributed to shape the views of the best Roman philosophers. The growth, also, of the Italian city into a vast world-empire, helped those sentiments which rise above local ordinances to take deep hold of thinkers. The Stoics did little for political doctrine, but in concert with the vastness of the Roman state their tenets encouraged cosmopolitan feelings and the idea of mankind. Thus they prepared the way for Christianity. Cicero mainly leaned on the Stoics, when he spoke of the highest good as consisting in a life congruous with nature, and of virtue as an "animi habitus naturæ modo atque rationi consentaneus" (de invent., ii., 53); when he described law (the law of nature, or natural law), as something eternal, governing the whole world, as the supreme Cicero. |