Nicomachean Ethics IV
Prof. Bill Long 9/3/06
Understanding Book V (Continued)
Justice for Aristotle includes distributive justice (described in the previous essay--5.3), rectificatory justice (5.4), and reciprocal justice (5.5). Then, in 5.10 he introduces the concept of equity for us. In between 5.5 and 5.10 are digressions on a number of topics that really don't concern me: (1) Justice in the political sense (5.6), which is not clear to me; (2) Just by nature and just by convention (5.7), a helpful distinction, but Aristotle doesn't go anywhere with it; (3) The various degrees of responsibility for just and unjust actions (5.8), which deals with culpability when impaired or when one acts involuntarily; (4) Voluntariness and involuntariness in just and unjust action and suffering (5.9), where he is interested in the question of whether you can voluntarily receive unjust treatment. Thus, the rest of this essay will be concerned with comments about rectificatory and reciprocal justice and equity.
We saw in the previous essay that Aristotle used mathematical terminology to describe distributive and rectificatory justice. The former is proportional (geometrical) while the latter is arithmetic. Let me conclude my treatment on rectification by giving the "math" of it, according to Aristotle.
"The judge restores equality. As though there were a line divided into two unequal parts, he takes away the amount by which the larger part is greater than half the line and adds it to the smaller" (5.4).
As a leading Aristotle scholar says:
"The problem of 'rectificatory justice' has nothing to do with punishment proper but is only that of rectifying a wrong that has been done by awarding damages...The parties are treated as equals and the wrongful act is reckoned as having brought equal gain to the wrongdoer and loss to his victim. It brings A to the position of A + C, and B to the position of B - C. The judge's task is to find the arithmetical mean between these, and this he does by transferring C from A to B.
He then (5.6) goes on to mention how some people following the pre-Socratic philosopher Pythagoras believe that justice is "the unqualified sense of reciprocity." In other words it is actually suffering that which you have done to another. This philosophy is similar to what we saw in the Hammurabi Laws and even one of the Biblical laws--that an eye for an eye is the "just" system of punishment. Aristotle seems to accept Pythagoras' approach to this even as he changes some of the terms. He uses a third mathematical formula to describe this kind of justice. Suppose you have a builder, a shoemaker, a house and a shoe. If the shoemaker wants a house built, he will have to figure out how, figuratively, to exchange shoes for the house. As Aristotle says:
"In associations that are based on mutual exchange, the just in this sense constitutes the bond that holds the association together, that is, reciprocity in terms of a proportion and not in terms of exact equality in the return. For it is the reciprocal return of what is proportional (to what one has received) that holds the state together" (5.6).
This notion of reciprocity advances beyond mere reward of evil for evil or good for good; it requires the determination of right proportion. Thus, if proportionality is established and reciprocity effected, a just exchange will take place. Thus we see how this third approach to justice is not based on what we would consider to be "justice" issues: it only describes a means of exchange in society that makes social relationships function.
A Word on Equity
Perhaps Aristotle's most important contribution to law in the NE, however, is in his discussion of equity (5.10). What is the relationship between equity (epieikes) and justice? Though both the just and the equitable are morally good, the equitable is the better of the two. In a sense the equitable is a "corrective of what is legally just."
"The reason is that the law is universal, but there are some things about which it is not possible to speak correctly in universal terms. Now, in situations where it is necessary to speak in universal terms but impossible to do so correctly, the law takes the majority of cases, fully realizing in what respect it misses the mark" (5.6).
The law is no less correct for missing the mark but, because of its universal dimension, it cannot handle all particular cases. Thus when a case falls outside of a universal formula, "it is correct to rectify the shortcoming, in other words, the omission and mistake of the lawgiver due to the generality of his statment."
"Such a statement corresponds to what the lawgiver himself would have said if he were present, and what he would have enacted if he had known (of this particular case).That is why the equitable is both just and also better than the just in one sense."
Even though Aristotle has spoken well of equity here, he really hasn't explored it in enough detail. Is equity a "separate system," in the sense that the judge can "decide" for him/herself when the written law doesn't give an answer, or is equity deciding when the law is silent but it gives us principles which lead to just answers? That is, what is the relationship of the equitable decision to the text of the statute? Can it be inconsistent with it? Must it be "based" on it? These and other questions arise to show that Aristotle is only scratching the surface of what became a difficult issue in the common law tradition--the borderlands between law and equity.
I think it will be most useful in preparing for class to understand Aristotle's overall approach to ethics, the way that the doctrine of the mean functions, and how justice fits into the discussion of the doctrine of the mean. Know, also the various points I have made about distributive, rectificatory and reciprocal justice, as well as the brief discussion of equity. That, I think, does "justice" to Aristotle, at least in our course...
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