Back To The Basics: Where Is Justice To Be Found?

Where Is Justice? (with several small, but very significant edits made the morning of 11/23/2009)
Have a look here,

"We did note that while we recognise that Tibet is part of the People's Republic of China, the United States supports the early resumption of dialogue" between the Dalai Lama's representatives and Beijing," Obama said after his meeting with Chinese counterpart Hu Jintao.

Chinese President Hu Jintao hailed US President Barack Obama's recognition of sovereignty issues dear to China."

To that, let me just say, that President Obama, has no understanding of, or respect for, Justice - none whatsoever. He may have some finely tuned notions about fairness, retribution and compensation, but about Justice, in the Western sense - nope, ain't got it. But more on that at a later date.

Progress Past
So we've had a look at how Liberalism took a left turn into it's current dead ends (Left and Right), and so come back around to where I started, the idea of 'There ought to be a law', with the questions of, why, and what sort of law ought a law to be... which leads us to ask, what is the purpose which Laws serve? We can't understand what is good or bad law, or whether one country should be able to swallow up another, without knowing first knowing what Justice is.

The question of what Justice is, must be answered first, and while Socrates was right, in The Republic, in that you do need to understand the structure of your society in order to understand how Justice will be exercised within it, you also need to determine what comes before Justice, what it is that justice serves, what makes Justice possible, before you can determine what Justice is, and how laws should support it.

Socrates decided that what it was that came before Justice, was the raw needs, the structure of the community, the polity, the Republic. The error here, is thinking that the structure of the whole, the society, was the proper starting point in and of itself, and that the requirements and influence of the individual, had no purpose other than to serve the needs of that whole.

In the eternal question of which came first, the chicken or the egg, Socrates chose the Chicken. Others have chosen the Egg. I think that the only proper answer that can be given, is 'Yes'. They both come first, and any answer which chooses one over the other, has missed the point of the Question, and is going to find itself either without a means to be created, or a means to continue - it really is no better than asking, which side of the coin came first, heads, or tails?

As concerns the question of Justice, we have to look at what Man is, and what the community of men is to Man, in order to determine how both will be best served.

Where To Start
When trying to look into the beginnings of Justice or Law, some of the origins are so murky and disputed, that citing this and that about who first engraved what laws on which pillar, and what they did and didn't mean, etc, is a bit pointless; better for our purposes, to listen to the meaning which those origins, whatever they may have been, actually produced among those we can more clearly observe, beginning with (with one exception), Periclean Greece.

The Exception That Fuels The Rule
The first stirrings of the idea that justice might reside outside of a King's decree, the power to say that justice is what those with power say it is - Might makes right - is seen in Homer's epic poem, The Iliad.

T.S. Elliot said that 'Poetry communicates before it is understood', which I very much agree with (see my posts What are Words For), and while that is so, I also think that the poetic communicates it's full message even before the parts of it have been recognized by those who receive it, and all of that message travels, not only from person to person, but is transmitted whole, though perhaps undigested, across place and time.

Without recapping all of the Iliad, it opens with the Greeks, led by the high King Agamemnon, raiding and pillaging the surroundings of Troy, and among the 'wealth' they've taken, is the daughter of a priest of Apollo; she was claimed by Agamemnon, and among the lessor kings, the hero Achilles has been awarded a princess, Briseis.

The priest of Apollo comes to the Greeks and asks for his daughter back; Agamemnon refuses, and Apollo, the God of Reason, angered at this affront to his priest, shoots arrows of plague into the ranks of the Greeks, wreaking havoc and death among them. The Greeks demand that Agamemnon yield his prize, Agamemnon feels his back is to the wall and his honor is at stake, he can't back down; yet his troops and Kings demand that he must – it's a clear no win situation with positions staked out firmly in false pride and puffed up honor – when finally he relents, it is in fury, and in an attempt to salvage his pride, he demands that he be given Achilles' prize, Briseis, who has by now become more than just a treasured prize, she is loved most dear by Achilles, yet she is now to be taken from Achilles and given to Agamemnon.

This is the source of the Anger of Achilles, not it's full meaning, for although it begins as a seeming issue of the price of glory and wounded pride, that is it's least part, the spark, not the flame.

That Rage, the Anger of Achilles, has been not only a driving force behind the development of the West, but it has continued in that poetic image, even as a mighty Oak is contained and transported within an acorn, to transport 'The West', in a form that has been able to survive multiple jumps from it's originating culture, the Greeks, on to the Romans, and on to the invading barbarians, and on to the Europeans, and on to the British, and finally (?) to America. How did this poetic device, rage, anger, and their image (the word, Image, is not to be dismissed as merely a 'picture'), manage to power a poem across three thousand years?

The answer lies partly in what it is that is contained in that anger, as burning questions; an anger that is questioning authority, questioning the role of honor, of duty, of justice and for realizing a need for something more in Life than what are typically recognized as just rewards (driven home when Priam comes to Achilles tent). These questions ignite at their introduction in Book I, and later more clearly and significantly revealed, in Book IX.

When Achilles must turn over Briseis to Agamemnon, he reaches for his man killing sword but in that moment discovers the dawning of one of the most momentous realizations in History, which Homer illustrates with the Goddess of Wisdom, Athena (Minerva in Pope's translation), besting his passion and staying his arm from drawing the sword on his King, from Book I of Alexander Popes translation of the Iliad;

Achilles heard, with grief and rage oppress'd,
His heart swell'd high, and labour'd in his breast;
Distracting thoughts by turns his bosom ruled;
Now fired by wrath, and now by reason cool'd:
That prompts his hand to draw the deadly sword,
Force through the Greeks, and pierce their haughty lord;
This whispers soft his vengeance to control,
And calm the rising tempest of his soul.
Just as in anguish of suspense he stay'd,
While half unsheathed appear'd the glittering blade,

Minerva swift descended from above,
Sent by the sister and the wife of Jove
(For both the princes claim'd her equal care);
Behind she stood, and by the golden hair
Achilles seized; to him alone confess'd;
A sable cloud conceal'd her from the rest.
He sees, and sudden to the goddess cries,
Known by the flames that sparkle from her eyes:

"Descends Minerva, in her guardian care,
A heavenly witness of the wrongs I bear
From Atreus' son?—Then let those eyes that view
The daring crime, behold the vengeance too."
"Forbear (the progeny of Jove replies)
To calm thy fury I forsake the skies:
Let great Achilles, to the gods resign'd,
To reason yield the empire o'er his mind.

Achilles begins to realize that all he possesses, which he has over and above all other mortals in Wealth, Honor and Reputation; they are revealed to be little like what he, and everyone else, had always thought them to be. Though his anger flames into rage, Achilles, greatest of warriors among the Greeks and Trojans alike, does not cut his enemies down, but withdraws to his camp, withdraws his men with them, and lets the Greeks begin to suffer disaster their High King brought upon them... through his unjust actions.

For all intents and purposes, isn't what he has done, to convert blazing fury, into the cold anger of civil disobedience?

By the time Book IX comes around, Agamemnon has clearly seen and felt the impact upon the Greeks of the loss of Achilles, and finally relenting, he sends an embassy to Achilles, containing Odysseus, the wiliest of Greeks, skilled at using intelligence to obtain a goal, and Ajax, a Hero almost on a par with Achilles himself, personifying physical power and competence, accompanied by Phoenix, the man who helped raise and train Achilles from a youth. The two heroes make finely crafted speeches and offers of bounteous gifts that can be Achilles', even offering the return of Briseis herself, if he will just return to the fighting with the Greeks.

Achilles, however, will have none of it, and rebuffs them all. Achilles has grasped that more than mere honor has been taken from him – and that more than goods and honor can be taken from him; that although his life, property and happiness have been trod upon as being trifles, as being thought of as being of less value or worthiness than Agamemnon’s… somehow something more than those tangibles has been taken form him. If that had truly been all he'd lost, then the abundance of honors and gifts offered him would have been more than enough to make everything right once again.

But something more has been taken from him, and he knows it, something which could not be restored even by restoring Briseis to him. Why?

Here's part of Achilles' reply to the embassy, from Book IX of Alexander Popes translation of the Iliad, Achilles responds to Odysseus (Ulysses) and the embassy:

Then thus the goddess-born: "Ulysses, hear
A faithful speech, that knows nor art nor fear;
What in my secret soul is understood,
My tongue shall utter, and my deeds make good.
Let Greece then know, my purpose I retain:
Nor with new treaties vex my peace in vain.
Who dares think one thing, and another tell,
My heart detests him as the gates of hell.

"Then thus in short my fix'd resolves attend,
Which nor Atrides nor his Greeks can bend;
Long toils, long perils in their cause I bore,
But now the unfruitful glories charm no more.
Fight or not fight, a like reward we claim,
The wretch and hero find their prize the same.

Alike regretted in the dust he lies,
Who yields ignobly, or who bravely dies.
Of all my dangers, all my glorious pains,
A life of labours, lo! what fruit remains?
As the bold bird her helpless young attends,
From danger guards them, and from want defends;
In search of prey she wings the spacious air,
And with the untasted food supplies her care:

For thankless Greece such hardships have I braved,
Her wives, her infants, by my labours saved;
Long sleepless nights in heavy arms I stood,
And sweat laborious days in dust and blood.
I sack'd twelve ample cities on the main,
And twelve lay smoking on the Trojan plain:
Then at Atrides' haughty feet were laid
The wealth I gathered, and the spoils I made.

Your mighty monarch these in peace possess'd;
Some few my soldiers had, himself the rest.
Some present, too, to every prince was paid;
And every prince enjoys the gift he made:
I only must refund, of all his train;
See what pre-eminence our merits gain!
My spoil alone his greedy soul delights:
My spouse alone must bless his lustful nights:
The woman, let him (as he may) enjoy;

But what's the quarrel, then, of Greece to Troy?
What to these shores the assembled nations draws,
What calls for vengeance but a woman's cause?
Are fair endowments and a beauteous face
Beloved by none but those of Atreus' race?
The wife whom choice and passion doth approve,
Sure every wise and worthy man will love.
Nor did my fair one less distinction claim;
Slave as she was, my soul adored the dame.
Wrong'd in my love, all proffers I disdain;
Deceived for once, I trust not kings again.

From what began as a question of 'What Price Glory' and pride, begins to dawn a realization that not only is no material price sufficient, but that even Glory is not a sufficient or worthy goal to begin with (I've touched elsewhere upon this, as in the Reason's of Reason series of post, such as Adding The First Leg to the Three Legged Stool of Reason), and Achilles is prepared to discard his promised, and much desired, eternal fame; he is 'dis-illusioned' and ready to simply return to a long, unregaled, mortal life.

Freud and the rest be damned, to my mind, the heart and soul of the Iliad is revealed in this passage, like no other.

Keep in mind, that Golden haired Achilles, to the Greeks, was the supreme example of Man. He was the fastest runner, the greatest warrior, the finest companion and a King in his own right, his father a King and his mother a Goddess. He knew Honor, in the sense that men of that day understood it, that of Kudos (tangible fame, renown, that a hero receives and accumulates), Time~ (personal honor, the respect other warriors have for you) and kleos (The renown and glory of your deeds that will be transmitted in story long after you've died), but the embassy to Achilles, the offers of Odysseus and Ajax, by all custom of the day, should have not only restored his honor, but enhanced it. But instead they fell woefully short... and while he never quite determines why, and neither does Homer, in the passage of a few millennia, the West has begun to develop the ability to begin to supply an answer to what drove Achilles.

Pope noted in his preface,

"That of the Iliad is the "anger of Achilles," the most short and single subject that ever was chosen by any poet. Yet this he has supplied with a vaster variety of incidents and events, and crowded with a greater number of councils, speeches, battles, and episodes of all kinds, than are to be found even in those poems whose schemes are of the utmost latitude and irregularity."

That "Anger", and the question of what it was and what it meant, has driven the West down through the centuries. Achilles has sometimes been dismissed, especially in modernity, as a whiner, a diva, any number of post-modern & Freudian complexes - including being a victim of post-traumatic stress(!)... but the lack of a fully satisfying answer, together with a recognition of the nagging importance of the question, has kept the issue alive when all the cultures and ages the Iliad has passed through have fallen to dust.

Achilles recognized something had been done to him, some violation, so deep and so profound, that it could not be solved by his famed sword, and which no mere gifting of presents, titles or flowery speech, could heal. He felt an equality of something with all men, and to the highest king, in their violation,

"Are fair endowments and a beauteous face
Beloved by none but those of Atreus' race? "

and that once trampled, could not be restored. He loves Briseis, but regaining her person will not heal the wound, it wasn't a matter of possession, but a matter of something closer to the soul - in my humbly arrogant opinion, it is the Right of a man to his 'property', not the property itself, but the Right; the recognition that there is something which exists as part of the makeup of his soul, that which, without it, he is no longer a Man, no longer able to exist in community with those who have violated it.

That question, again, in my humbly arrogant opinion, has been the fuel of Achilles' anger, and it has driven the West to rise above the simple savagery of fairness, which easily contains all other cultures, and has driven the West to become the West, the only culture in the world of not only Law, but Law which recognizes, and bows, to something higher, something which centuries after Homer, would begin to be recognized as Natural Law.

But between the time of Homer and the identification of Natural Law, there's a lot more that had to come to pass, many more questions needed to be asked, answered and tested, before getting to that point.

The Basic Questions begin to find a Home
IMHO, Aeschylus offered, in his trilogy of plays "The Orestia" (the plays Agamemnon, The Libation Bearers, and The Eumenides), the best synthesis ever given, for how society was transformed from a clan warfare understanding of 'just desserts', literally an eye for an eye succession of violent paybacks, to a society which raised itself from that of one governed by emotional retribution, to that of one governed by reason, one concerned less with obtaining 'satisfaction' than with Justice.

As an attribute of the nature of Man, we require the freedom and liberty to act in accordance with our reasoning, to sustain and further our lives. This entails the need to think and speak your thoughts, to act upon them and to retain the property created through your thought guided actions. In the Orestia, Orestes, the son of Agamemnon, is given an irresolvable conflict of duties, that of a son to avenge the murder of his father, and the fact that a child must never harm, let alone kill, either of their parents, but the the murderer of his father is his mother, Clytemnestra, and it is his duty to kill her - but it is forbidden.

The God Apollo charges Orestes to avenge the murder of his father. But if he does so, the Furies, ancient and hellish banshees, will pursue him for killing a parent, and destroy him in retribution for the crime of murdering his mother. In this conflict of duties and non-conceptual attempts to resolve conflicts to the injured parties satisfaction, lies the fatal, primitivizing, flaw of clannish society, and the reason why it can never rise above the violent limitation of constant, unremitting clan warfare.

In The Libation Bearers, Orestes weighs societal and familial duties, against the judgment of the Sun God Apollo, the God of Reason, and he determines to resolve his unresolvable conflict by complying with Apollo; he puts his mother, Clytemnestra, to death. Immediately the ancient forces of retribution, the Furies appear to Orestes and pursue him screaming from the scene.

In The Furies (Or The Eumenides 'the kindly ones'), Orestes is pursued and haunted from one location to the next, until he arrives in Athens, seeking refuge in the city of Athena, the Goddess of Wisdom.

To decide the issue, Athena causes twelve Athenians to be selected as jurors to hear the pleas of the accusers, the Furies, who declare that Orestes has obviously murdered his Mother, his own blood. They hear the pleas of Orestes that he 'had no choice' but to do his duty and avenge his father's murder, and finally they hear an argument in favor of Orestes by Apollo himself (a very lawyerly, legalistic, parsing bit of slippery rhetoric and spin, which has seemingly always defined lawyers), which declares that Mother's aren't really blood relatives, but little better than fertile fields for the seed of the Father, the True blood relative, to grow in; therefore, Orestes didn't actually kill a blood relative, his Mother, who was only the person who killed his actual blood relative, his father (though the spin is shallow, there is immense in the whole image, one I hope to get to in a future post).

Athena charges the jury of twelve Athenians to decide the matter of Orestes guilt or innocence... and the verdict comes back a tie, six for guilt, and six for innocence - what to do? Athena, Goddess of Wisdom, decides in favor of Orestes, establishing the precedent that those who cannot be conclusively proven to be guilty, must be assumed innocent (which would finally blossom ages hence, in our Founding Fathers era, into the fruit of each person being considered as being Innocent, until proven guilty... but there's a few thousand years, and many developments, materially and spiritually, before that result is possible).

The Furies are... well... Furious at verdict and what they take as an usurpation of their duties and privileges... Vengeance must have an outlet! But Athena, the personification of Wisdom, not only calms them, but offers a new path which will enable them to become transformed from mere physically palpable creatures of vengeance, feared and hated by all; into a force to be respected and treasured by everyone everywhere, they are to become the protectors of Athens forever more. They will become reverred protectors of the city, a vital force that will carry out the judgment of the people themselves, and directed to not only punish all lawbreakers (who become the true blood criminals, against not just relations but all members of the community), but to uphold the law which makes Athens' society possible.

strophe 3:

Praise not, O man, the life beyond control, - [anarchy]
Nor that which bows unto a tyrant's sway.
Know that the middle way
Is dearest unto God, and they thereon who wend,
They shall achieve the end;
But they who wander or to left or right
Are sinners in his sight.
Take to thy heart this one, this soothfast word-
Of wantonness impiety is sire;
Only from calm control and sanity unstirred
Cometh true weal, the goal of every man's desire.

This, in dramatic form, portrays the elevation of society from savagery, to civilization, and Justice is that which allows the people to overcome mere Fairness.

The Primitive Nature of Fairness - What's that smell?
Clannishness is suited only to that low level of social interaction no more complicated than one person interacting with one other person. It "understands" that one person must think and do and have possession of what that thinking and doing results in, property. To make a reasonable claim to being a human, you must recognize that requirement and extend to others the recognition that they are under the same requirements. To be able to associate, you must agree to not prevent or infringe upon their equally fair claims to their actions and property - without that, you could hardly attain to human life, you'd be little better than an animalistic predator.

But at this point, you don't yet reach rights, only agreement, which you and anyone watching, would call Fairness. You do this, they do that. You give this, they give that. A perceptual level balancing of things, tit for tat actions, stuff.

You've got to strain the imagination to come up with a scenario where one party isn't clearly aware whether or not their requirements of fairness have been imposed upon, and who the imposer must be - as with (pardon the crude example, but it is fitting) the fart on an elevator containing only two people - everyone knows who did it!

But with the introduction of a third person, the entire nature of the association changes. Now, with three persons present, you can't know for certain which of the others did something, simply by virtue of knowing that you did not do it. With three people or more, you must examine evidence and judge whether B or C did something, and if both deny it, how to prove it? Of course if B didn't do it, he knows he didn't, but if C says he didn't, and how do they know A didn't do it just to cause a situation where he could take from B or C as the loser... seeming uncertainty enters the picture.

As the rest of the alphabet moves into the neighborhood, you then have a situation of A concluding that C did it, and then retaliates. C's friends and relatives, believing that he didn't do it, retaliate against you - your only hope of survival rests upon your fellow vowels being stronger that the Consonants, and we have as a result, clan warfare the original anarchical situation.

That is the limitation of, and inevitable result, of driving social satisfaction through "Fairness".

For all of the social contract theories, no one, to my mind, described the issue better, and it's solution, a gov't of laws, than Aeschylus portrayed it in the Orestia, it dramatically illustrates, certainly better that than any of our modern philosophers attempts, a depiction of the state of nature transitioning into a 'social contract'.

The Binding Contract - Law
With a more complicated society, you enter a position of no longer being able to have full 1st hand knowledge of other individuals actions, and so a standard is required whereby all can feel that they have a fair, just, hearing, from which they can expect a reasonable decision to resolve an issue - and with which all parties will agree to call the matter at an end, resolved. This is where Law arises from, and with it the transition of requirements of life progresses past that of merely physically sustaining life, into that of providing for, no matter how poorly understood, Individual Rights; we pass from only personal ethics, to shared ethics, ethics trusted to be shared with that unknown third 'other', which is what political philosophy enables, and the Law provides.

The law becomes your trusted intermediary with third parties, trusted to examine the evidence based upon agreed upon rules of evidence, charged with dispassionately evaluating the evidence, and rendering the best possible judgment on behalf of the interests, the requirements...of all of the individuals in that society.

This lifts society above the level of simple handshake agreements and personal & blood association (and their accompanying clan vendetta's), and into the realm of established Rights. The necessary price of this progress, is that each person in society delegates their right to use force to solve issues of conflict (outside of immediate physical dangers), to a set of rules, administered by those society deems best suited to treating all fairly, and the requirements of Human life, are elevated to become Rights of speech, liberty of action, and property rights.

This group administering the defense of the peoples rights, is itself only a pooled extension of each person's rights to those requirements, and necessarily cannot violate those same rights.

By coming into society, you implicitly agree, as Athena stayed Achilles sword arm, to refrain from using force, to become part of civilized society, is to delegate that right of forceful action, to those that society trusts and designates to dispassionately defend the rights of all - and backed with the might and force delegated to it from each individual in that society.

That delegation, is the true, and only sense, where the community and the individual are mingled into one collective body. It is through Law, and the system of Justice which it serves, where the One in the Many, is actually found.

Good Walls Build Good Neighbors
It is important to also keep in mind that Rights are the societal recognition of barriers between individuals, which must not be crossed without invitation and consent, they are the political equivalents of walls and doors, and breaching them either individually or on the part of society (which would then reclassify itself as a mob - collective action without reason) should be viewed in the same light as physical trespassers and burglars.

More so. The violation of Rights, properly understood, is not just a violation of custom, but of reasoned rationality itself, to the safety and well being of the polity, and opposition to reality and its requirements. Rights are not permissions, having to ask permission to exercise your rights - the requirements of human life - makes you less than human in your attributes, and yielding them makes you a slave.

Where Law unites all of societies individuals into One body, Rights provide the separation which preserves them as Individuals, the Many.

No Right To Wrong
You can have no Right to retain the right to violate the rights of others, and to escape the defense of others rights. The well being of everyone's rights, rests upon the single body charged with defending them (this is central to what the errors of Libertarians, and why a libertarian society (of the Murray Rothbard variety) would quickly devolve into tyranny).

You yield your right of force, not in submission, but in recognition that in doing so, your Rights are made stronger, your safety and rights are better defended by a 3rd party whom all recognize (and by implication, participate in), than by you yourself - and by extension anybody be they hot headed or cool headed, feeble minded or genius - or everyone else, acting on their own.

It is in the societal transfer of the monopoly of force to Gov't that preserves the rights of all, and no one has a right to jeopardize the rights of all.

Unless that people put aside simple eye-for-an-eye actions, for the infinitely higher concept of reasoned Justice, and it's concomitant acceptance of people being united not by blood alone, but as partners in this ideal (the heart and soul of Gods gift to the Jews, through Moses, "The Law"), savagery - no matter how ritualized or codified - will be the only result.

You can have no Right to retain the right to violate the rights of others, and to escape the defense of others rights. This is the fallacy of the question of which came first, the Chicken or the Egg, or asking which side of the Coin came first, Heads or Tails - it is a Unity that comes all at once, whole and together, the One in the Many.

Law without Rights, is Tyranny. Rights without Law, extends no further than your teeth and your fists, Law without the participation and support of ALL Individuals within society, is weakness and mockery - a tool for those with the sharpest teeth and strongest fists.

Rights are very much a Moral concept, and the attempt to apply them in an amoral fashion can lead only to rampant immorality and eventual loss of all Rights. Justice is only to be found where Reason, together with Morality, are practiced and exercised as One.

Next in this series, I'll take a look at what passed from Aeschylus's hints, and the first recognitions of Natural Law, with Cicero, that of Plato, Aristotle and Sophocles, who first showed how merely reacting 'intelligently' to events, and looking only towards ones self for answers, leads to deeper disasters, and the understanding that Law was different from decree, and that Law that didn't come from above, would only lead you to the below.

P.S.
Required reading for anyone seeking to belong to Man and the Community of men, should include,
Orestia - Aeschylus
Republic - Plato
Laws - Plato
Politics - Aristotle
Rhetoric - Aristotle
Nicomachean Ethics - Aristotle
Republic (Treatise on the Commonwealth)- Cicero
Laws - Cicero
Summa Theologica (Second Part) - Aquinas
The Two Treatises of Civil Government - Locke
Commentaries on the Law - Blackstone
The Bible - (Oh, come on, guess)

P.S.S - These should be aids to your thinking, not substitutes! There is much, even in Aristotle, that is deeply flawed... but they always help move you towards a better understanding of life, and more importantly, of Your life.