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JUDGMENT

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By T.S.Tsonchev

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The Montréal Review, September 2016

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"The Judgment of Solomon" by Valentin de Boulogne, (circa 1625, Oil on canvas, 176 x 210 cm,
Musée du Louvre, Paris)

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I.

            "Judgment" is a term with manifold meanings and usages. The Webster Dictionary enumerates at least four common applications of the term. It is worth to note that the editors of the dictionary placed the word not as a separate entry, but as a part of the definition of "judge." Judgment, according to Webster, is the "act of deciding or passing decision on something," the "faculty" of judging "wisely," good sense, discernment, understanding, opinion formed by judging or considering, comparing ideas, actions, concepts, etc. Judgment is also related to law. It is the "sentence pronounced in a cause by the judge or court by which it is tried." And finally, judgment is a Biblical term that signifies the punishment of sinners, "the final trial of the human race." All these definitions can be placed under four general groups: judgment as act, as reasoning, as court verdict, and as divine justice.

            If we leave aside the dictionary definitions and turn to other, more complex interpretations of the word, we can find authors like Oliver O'Donovan, who rightly note the "ambivalence" of the term. O'Donovan says that "philologically" the word judgment suggests "an activity undertaken by a public official."1 As in Webster, he derives its meaning from the "higher" in the hierarchy of language verb "to judge." "To judge" is the root of the act of passing judgment. To judge means to do something publicly, something that concerns not only us but others as well. The significance of this conclusion will be fully revealed in the next section when we discuss in detail Aristotle's interpretation of "just" and "justice." Now, we should agree with O'Donovan that judgment seems to have two fundamental "dimensions": one internal (a property of mind, as it was noted above), and one external (an act of public pronouncing of a verdict). We see here that the ambivalence of the term arises from its double nature. It is simultaneously a property of mind—we cannot properly say an act of mind while it is still in the mind—and an act of will in the moment when it is publicly pronounced. In other words, judgment has a contemplative and practical nature, and as such, it belongs to both the speculative and practical reasoning. We may argue with certainty that it is always both a property of mind and an act of will. It cannot be only an act of will, nor simply a property of mind. It has to be both rational thought and act of will.2 If a judgment does not have for its basis the rational discernment between parts or objects, or if this rational discernment is left without practical expression, it cannot be properly called "judgment."

            If judgment is a property of reason and an act of will, we may conclude that no judgment is possible without the existence of some kind of authority behind it, of some form of freedom to impose a verdict over objects of decision. The authority in the act of judgment makes this act publicly significant and, as it seems, a mean for changing or sustaining the order in the world. Both authority and reason are phenomena directly connected to universality. There are no such things as "private" authority and "particular" reason. Both authority and reason have the genera of universals. Authority draws its meaning from its public function, aims, and power, while reason is possible only as the center of unity, as a "container," so to say, of all things existing in the world. As connected to universal, authority and reason are forms of law. For that same reason, as consisting in itself reason and will (or authority), judgment is related to law or have the nature of law in itself.

            Based on what we have said so far, we can formulate a preliminary definition of the act of judgment: The act of judgment is a rational discernment between things and its public expression and as such, it is a function of law. Oliver O'Donovan offers another definition, but not so different in essence; he says that judgment is an "act of moral discrimination that pronounces upon a preceding act or existing state of affairs to establish a new public context."3 The only significant difference between our definition and O'Donovan's is his claim that the judgment"establishes a new public context." At this point, we cannot say whether every judgment establishes a qualitatively "new public context" or simply restores some more fundamental status quo. But he is certainly right when arguing that every judgment pronounces upon a preceding act or existing state of affairs. It is so because, as we have said, every judgment is a function of reason, and reason can act only as a reflection of or in response to something. Reason has this particular quality to apprehend the is of things and to find their ought, it has, so to say, a re-active, a reflective nature (hence, we sometimes use the word "reflect" instead of "think"), and left on its own, cut from its objects, like, for example, when we are asleep and have dreams, it knows neither coherence, nor direction. Reason is bound to things outside of itself. So, in order to judge, one has to have a reason, i.e., an object, a casus, like a preceding act or some state of affairs. The first part of O'Donovan's definition—judgment as moral discrimination—implies that every judgment aims to divide between right and wrong, i.e. between good and evil. This argument seems to bring something new in our discussion, but in fact, it does not. The moral aspect of judgment has already been revealed, at least implicitly, in our observation that judgment is a property of reason, an act of will, and a function of law. Reason, as we will see later, especially when we discuss Aquinas, is naturally directed to good, the act of will is the effort for the achievement of good, and the function of law is to prevent evil, which, as Augustine would say, is a kind of privation of good. 

            "To pronounce a judgment is always to speak about something that already is the case,"4 says O'Donovan. This inevitably leads us to the problem of truth. We have a case, we have something that is already existing, when reason becomes involved. If we have something that precedes our judgment, we inevitably must find its "ontological" reality, which is its truth. In judgment, the reason does not create the truth, but the reason is asked to discern the truth in a situation. Truth is not in the reason, but in the case itself.5 And the function of reason, and from here, of judgment, is to discern and decide. Reason can easily deceive itself that the judgment it produces, the verdict it pronounces through the act of will, is the truth. It will be the truth, but only if the understanding of reason corresponds completely to the truth in the case. That's why O'Donovan contends that "an act of judgment may therefore be assessed by the success of its outcome, as well as by the truth of its pronouncement"6 and that every judgment has a "retrospective" and "prospective" aspect.7 Retrospective (finding the is) because it is bound to a reality that precedes it, and "prospective" (finding the ought) because it is brought out as an act of will that aims to manifest the good, i.e. the truth, in the world. This does not mean to say that reason brings good from itself, and creates its own order. No, not at all. It means that judgment, which is a property of reason, aims to recover the truth lost, but still present, in the obscurity of case. That's why I said in the above paragraph that when judging, we do not create, properly speaking, a "qualitatively new public context." No, we simply recover something that has been lost from visible, but is nevertheless present. 

            O'Donovan concludes that for a good judgment there must be fulfilled two criteria: truth and effectiveness. He says, "judgment [is] subject to criteria of truth, on the one hand, and to criteria of effectiveness on the other."8 "Success on one front," he continues, "cannot compensate for failure on the other."9 This is so, because "a well-made judgment is a statement that is true, and as such a deed that is effective."10 Again, this is so, because the good judgment does not produce anything from itself, but coincides with the truth without, and the deed that the will produces does not bring more obscurity and confusion, but resolves the problem, abolishing what was "deficient" of truth (or of good) and asserting what is true, right, good, and real

            Bringing the subject of truth into our analysis, we need to take a second look at our preliminary definition of judgment. We have said, The act of judgment is a rational discernment between things and its public expression and as such, it is a function of law. Now, after all we have said, this definition needs a slight revision. Why? Because, as it was noted, human reason is not the creator of truth, it is only its "discoverer," yet not an absolute one (it needs the help of faith); it is also not the creator of good, because good is already in the world, within every particular case. This leads us directly to the question of obedience. In the act of judgment, human reason must find the truth, and obey it through an act of will. Every judgment, in order to be deemed "well-made", a truthful one, and just, must comply with the truth outside the judging mind. So we must reverse the order in our definition, we should say that the act of judgment is first and foremost a function of law (but not simply of human law or the law of mind) and then a discernment between things and its public expression. We need this emphasis on the primacy of law, because law is something beyond any particular interest, including mind's own interest, something universal that aims at and sustains the existence of common interest, which is nothing but the sum of all individual interests considered equally. The authority of law does not rest in the human mind; it is in the will of the Lawmaker, which is the truth behind the created order where everything, including human mind, finds itself. That is why human judgment and obedience are two necessarily related terms.  

II.

            Aristotle describes justice as "that kind of state of character which makes people disposed to do what is just and makes them act justly."11 Injustice, he says, is simply the opposite of justice, viz. the state of character that makes people inclined to do what is unjust and makes them act unjustly. The first thing that makes an impression in Aristotle's definition is the word "character." It immediately evokes the question, Could it be true that every just or unjust act depends on man's character, i.e. on something given? Is it enough for one to be born with a good character, or educated and living in a good environment, and so to act justly in his entire life? And what can we say about those who had the misfortune to be raised in bad conditions, taught wrong habits, or those who by temperament are passionate and unrestrained? Can we blame such people for their folly, stubbornness, for their lack of temperance and good inclination? Aristotle tries to answer these questions at the end of Book V (of Ethics) and we will discuss them later. I suspect that he left the subject of the role of character for the end of his discourse because it seems the most problematic part in his definition of justice.

            After this rather vague description of justice, Aristotle continues arguing that the quality of a condition and of a thing is conceived and found in two basic forms: as existing within the thing (or the condition) itself and through its antipode, hence through discernment. For example, we know that the sun is hot and the moon cold, because, first, the sun is hot, and the moon cold, and second, because we have a sense of hot and cold. However, we would never know either hot or cold, and from here, the physical condition of the sun and the moon and their differences, if we had never experienced hot and cold as contraries. The one defines the other; this is the necessary dialectics in human perception and knowledge. Similarly, "if a good condition is known, bad condition is also known."12 Goodness and badness become evident not only through juxtaposition of two contrary (according to our mind and senses) entities (ontics), but also from the things itself. In order to judge, therefore, between good and bad, we must have some initial knowledge or idea of good and bad, and then, things and actions with inherent qualities that we perceive as antagonistic. I say "we perceive," because they may appear as contraries according to our particular understanding, while in fact they could be mutually complementing one another, hierarchically related, different in kind (i.e. incompatible), or in harmony instead of being in conflict.

            So, who is the just man and who is unjust? In order to answer this question, we must start, as we have said, with some planted in us natural or acquired primitive knowledge of the just man and his antipode; we must have as objects two mutually revealing, opposite kinds of people. The just man, Aristotle says, is the "fair" and "law-abiding" person; the unjust is the "unfair" and "lawless" individual.13 I think, everyone would agree with this formulation. Yet, this formula is not enough. We need to say something more.

            The unjust man is also the "grasping man," Aristotle says. He is the one who is covetous, greedy, avaricious. And here a paradox! The covetous man is the man who is "concerned with goods," 14 he desires what is good. Can an unjust individual be concerned with good at all? Yes, he can, because, as Aristotle says, all men "pray for" and "pursue" the things that are good, all desire prosperity or happiness. "But they should not [do this]," he immediately adds, and clarifies, "They should pray that the things that are good absolutely may also be good for them, and should choose the things that are good for them."15 So, if we follow Aristotle's logic, we cannot say, as we normally do, that the just man is simply the one who pursues good. We also cannot say that the unjust man, in his desire for prosperity, is the one who thinks, properly speaking, of his own good. We can say, however, that the unjust man is greedy and concerned with acquiring goods without discrimination and also the one who does not love or does not know how to love himself. The unjust man is not simply the one who, in his greed, robs others; he is a man who becomes his own enemy, being unable to judge rightly his own good, and so punishes himself with anxiety, toil, war, and empty ambition. The unjust, grasping man seeks neither the good of others, nor his own good; he knows neither the common nor the private good.   

            No man can be just, if he does not know what is good for him and for others. Anyone who does not pursue common good, which, in its absolute form, is, as we have said above, nothing but the sum of all private interests taken into consideration equally, is an unlawful man. He is unlawful, because law, like reason and authority, has universal nature; law is concerned with the achievement and sustaining of the common good, which is the measure for justice. That's why Aristotle says that the "lawless" man is "seen to be unjust" and the "law-abiding" just, because all lawful acts are "in a sense just acts."16 They are just, because the laws "aim at the common advantage (i.e. the good) either of all or the best or those who hold power."17

            With this last quote, we depart, so to say, from the world of metaphysics and go into practical reasoning. We do not anymore speak about law in its absolute sense, but about laws, about forms of law that do not differ in direction (since all seek "common advantage"), but in scope. Laws, says Aristotle, aim at the common advantage of all or the best or those who hold power. Laws that aim at the common advantage of all, a Christian would say, are the divine laws,18 including the so-called natural law that is rational creatures' participation in eternal law; the laws that aim at the common advantage of the "best," whoever they may be, and of those "who hold power", are the positive laws, the laws of political society. The just person, therefore, is the one who behaves in such a way that his acts "produce and preserve happiness and its components for the political society."19 Political society, for Aristotle, is the community based on law, supported by the practice of virtues, and created for the advance of common welfare. 

            The unjust man, the grasping man, is the unlawful man; he is the individual who disregards the law of community, the existence of the rights and interests of others. Aristotle says that the form of justice that rests on law is "complete virtue, but not absolutely, but in relation to our neighbor"20 (italics are mine). Which means that to be just is to consider the common interest. Those who practice justice, who are just, exercise their virtue not only for themselves, as it could be with temperance, for example, but also towards their neighbors. "[J]ustice," Aristotle says, "alone of the virtues, is thought to be 'another's good,' because it is related to our neighbor."21 Or as Francisco de Vitoria notes, "Justice can only be exercised in a multitude."22 There are four cardinal virtues in Greek moral philosophy: "prudence," "temperance," "fortitude," and "justice." Only justice is the virtue that is concerned with the good of others. So, not only the grasping man could be unjust, but also the prudent one, who could use his "wisdom" to acquire wealth without discrimination, or the temperate man, who could use his temperance to achieve great honor, or the man of fortitude, who can use his courage to gain power and enjoy carnal pleasures. As Aquinas says, the goods of this world are external wealth, carnal pleasures, and honor,23 and those who have them are the rich, the proud, and the powerful. The man who practices justice could not be rich, if others are poor, could not be proud, if others are humble, and would not use his courage and power for carnal pleasures and domination. I will repeat, only justice, among all virtues, is "complete," because it cannot be practiced without considering others. As such, the virtue of justice is the highest among all virtues; it is the "sword" of law, the foundation of community, the "queen" of virtues. The best man, Aristotle says, "is not he who exercises his virtue towards himself, but he who exercises it towards another."24 The best man, therefore, is the just man.

            In the same way as there are many kinds of virtues and one only that deals with the good of others, namely the virtue of justice, there are also many kinds of wickedness, and one only related to injustice. The act that aims to take what belongs to others is an act of injustice. Man, says Aristotle, who makes "gain" at the expense of others is unjust. But what about the lack of fairness? We have said that the unfair, like the unlawful man, is an unjust man. "All that is unfair," Aristotle states, "is unlawful, but not all that is unlawful, is unfair."25 How so? Here we return to a rather perplexing part of our exposition that we left without consideration. We have said above that there are a few kinds of law: divine (laws that direct all, without exception, to the end of good), and positive or political laws (rules that aim at the wellbeing of the best or of those who hold power). The divine laws are above the positive, and the positive laws do not always reflect the principles of the divine. The reason for this is that the positive laws are insufficient in nature; they are practical laws that resolve particular cases for the goals of particular communities, they have no universal application, they are bound to time and space, open to amendments, change, or even abolition. For that reason, the positive laws are inherently limited. Moreover, as Aristotle says, they either aim at the interest of the best, i.e. of those who, according to some criteria, have merits, or of those who hold power. The "justice" of positive law is limited in time, political scope, and space, and liable to error. Thus, an act might be unlawful according to the positive law of the state because of deficiency in the state law itself, and yet fair according to divine law, which is the law of Truth under which all are equal in everything, including the sinners. "He, who is without sin among you, let him be the first to throw a stone at her" (John 8:7). There is no deficiency in God's law, no justice based on merit or power. That is why we may agree with the Philosopher, "all that is unfair [according to eternal law] is unlawful, but not all that is unlawful [according to positive law], is unfair." Fairness as justice is found not simply in the law of political community, but also, and above all, in the commands of the divine Truth.   

            An act is fair when it gives to all what they deserve or have by right. The fair act is found in equal distribution, in equality. Aristotle says, "[...] both the unjust man and the unjust act are unfair or unequal."26 Between two unequals there is one intermediate, which is equal. In any kind of action, Aristotle says, "in which there is more and less there is also what is equal." So, "if then, the unjust is unequal, the just is equal [...] and since the equal is intermediate, the just will be an intermediate."27

            Equality, according to Aristotle, implies at least two things: it must be both intermediate and equal (relative to persons and things), and it consists of four basic terms: two persons (or groups, or parties) and two distributed objects or things. All four are related, hence "relative". If the distribution of things in this relation is unequal to all, there will be, Aristotle says, "conflict and quarrels." The unequal distribution is the source of war; the "origin of quarrels and complaints" is "when either equals have and awarded unequal shares or unequals equal shares." This is what inflames the hearts of men: when they see a distribution of goods that is unjust concerning either merit or quantity.

            It seems, Aristotle says, that in order to be just a distribution of goods should take into account the merits of the parties. The difficulty in this is that not all agree on questions of merit, not all specify "the same sort of merit." As we have said above, some positive laws aim at the good of the best, of those who deserve. But who are the people who deserve more than others? If these are the prudent, then we consider the proportion of their material success as just and so we encourage excessive wealth and material inequality. If these are the temperate, then we stimulate the vice of pride and self-righteousness. If these are the courageous, then we support the competition, and so we accept a class of men with disproportionate power. If the best are the just, then who exactly are they? Can we see them? They must be neither poor nor rich, neither temperate nor dissolute, neither powerful nor weak, neither clever nor imprudent... Who are the just? How can we find them in order to enthrone them as "the best" and most deserving among all citizens? Would they accept such an honor and continue to be just? Should we call them good? "Why do you call me good," Jesus said, "No one is good—except God alone." (Lk 18:19)

            As we have said at the beginning, we know through discerning antagonisms. And the truly just man escapes our perception because he cannot be compared through categories of wealth, virtue, and status. After all, Jesus was not recognized as good and so he was crucified! The state, the sovereign and the people, did not perceive him as the best among men. Moreover, he was judged as a criminal! His moral excellence remained unknown for the world until his death... The just are those who judge rightly according to the truth. Although difficult to be imagined as real men (so faith is needed here), they must be people who know "proportion." They must be men who do not seek the best in the scale of temporal values and goods. The just, Aristotle says, is a species of the proportionate, and justice, properly speaking, does not use for its measures some general or particular criteria of merit. The divine law, the law of Truth, treats all equally, including the sinners; and the positive law, if it is a true reflection of the divine law, must distribute between parties and things according to the case, not according to the merits of the involved in it. That is why Aristotle says, "a good man" (according to some criteria of merit) can defraud a bad man (a sinner) or a bad man a good man. The merits of men do not matter in resolving cases of fraud. "The law looks only to the distinctive character of the injury, and treats the parties as equal."28 (Emphasis is mine)

            The reader perhaps notices that the judge appears when an injury is done, when there is a conflict regarding distribution of goods (and rights); the judge is the one who is regarded as just and asked to pronounce a verdict according to the character of the injury. At the beginning of this essay, we said that every judgment arises in response to something, and that its goal is to recover a lost balance, i.e., to bring justice and manifest the truth. Justice and the act of judgment, as we have said, are required in order to recover or sustain some fundamental status quo of balance and equal distribution. The judge "tries to equalize things by means of the penalty, taking away from the gain of the assailant."29 The unjust man is the one who, for personal gain, destroys with his actions the status quo, the natural order of things. I have said above that man, who profits from the loss of others, is unjust. Between "gain" and "loss" is the equal, so the intermediate must be the just. "This is why," Aristotle says, "when people dispute [...] they seek the judge as an intermediate, and in some states they call judges mediators, on the assumption that if they get what is intermediate they will get what is just."30 And concludes, "The just, then, is an intermediate."31 Now, we have the just as "proportion," "intermediate," and "equality." And we ask the question again: Who are the just? The just are those who know "proportion" (not geometrical), who can act as mediators, and who respect equality. These are men, who sustain or recover the balance of things according to the truth. In the language of Scripture, the just are the "peacemakers." It is written, "Blessed are the peacemakers, for they will be called children of God." (Mat 5:9) The just are those who resolve "conflicts and quarrels."

            Proportion, mediation, equality. What about reciprocity? Is not reciprocity part of this trinity? It is written, "[...] life for life, eye for eye, tooth for tooth, hand for hand..." (Exod. 21:24-5) And yet there is another perspective, "You have heard that it was said 'an eye for an eye, and a tooth for a tooth.' But I say to you, do not resist an evil person..." (Mt 5:38-9) Reciprocity is not part of justice. Both the New Testament and Aristotle agree that reciprocity (an idea promoted by Pythagoreans) cannot be attributed to justice. Reciprocity is neither distributive nor rectificatory justice. Aristotle demonstrates this conclusion with the following example: "If one official has inflicted a wound, he should not be wounded in return, and if someone has wounded an official, he ought not to be wounded only but punished in addition."32 Besides, there is difference between voluntary and involuntary acts. We cannot judge and convict someone to pay the same price for a harm caused by accident. Moreover, at the end of Book V, Aristotle notes that the virtuous man tends to take less than his share. The noble man is generous and reciprocity is something that he never seeks. Generosity, as virtue, cannot be practiced as an act of mutual favor; it cannot even be practiced with expectations for gratitude in return. We read in Scripture, "If you love those who love you, what reward do you have? Do not even the tax collectors do the same? If you greet only your brothers, what more are you doing than others? Do not even the Gentiles do the same?" (Mt 5:46-7)

            But the noble and generous men are a rarity; they are exceptional, that's why they are called nobilis. Men in general, Aristotle says, "seek to return either evil for evil—and if they cannot do so, think their position mere slavery—or good for good—and if they cannot do so, there is no exchange, but it is by exchange that they hold together."33 Here we reach an interesting part of Aristotle's treatment of justice. This part could sound quite familiar to the contemporary reader because its reveals the "contractual" nature of modern ("bourgeois," if I use Marxist terminology) society. In this part of the book, Aristotle offers a primitive theory of the "capitalist" order, of a social order based on demand, exchange, and money. Note here that he first excluded reciprocity from the concept of justice and then, as we have said, finished Book V with the generosity of the virtuous man, in between, however, he points out the existence, the possibility for existence, of society based on reciprocity. It is clear, if reciprocity is not part of justice, this society could not be just. It could not be "generous" as well. It must be composed of people doing good to each other only at a price. If based on mutual favors, this society must also be free. It is neither aristocratic nor tyrannical. In this society, virtues such as honor, self-sacrifice, and courage have only secondary importance, and the unchecked power is feared and despised. It is also pragmatic and peaceful; in addition, it must necessarily rest on a sophisticated and well-functioning legal system that guarantees the proper execution of contracts and the low level of transaction costs (the costs related to the risks of exchange). This society resembles very much a just society. Yet, since it is based primarily on reciprocity, it falls short of the ideal of just order.

            The problem of this, let's call it, "reciprocal" society, is that its goal is not justice, not even the common good, but the achievement of perfect equality in transactions (the "just price") and the satisfaction of needs. The presence of "satisfaction of needs" reminds us about the good of self-sufficiency, which, according to Aristotle, is one of the primary goals of political society. Self-sufficiency (autarky) in such society, however, is impossible; moreover, it is contrary to its very nature. This society becomes possible only because of the existence of unsatisfied needs and desires; it is born, so to speak, under the spell of poverty. The reciprocal society arises from the shallow roots of human need; shallow because human needs constantly change and men are quickly satisfied. If today two people come together, i.e., form a kind of social bond, only because they need each other and have the opportunity to exchange services, skills, or goods, tomorrow, once the mutual benefit is consumed, they would separate and forget about their relations as they have never met. Society based on mutual profit lasts as far as the need dictates. It resembles in character a friendship based on utility or pleasure—despite its momentary goodness, it can never have the sublimity and longevity of friendship based on love.34

            The "reciprocal society" can be metaphorically described as a world existing under the "third seal"35 in Revelation: "'Come.' I looked, and behold, a black horse; and he who sat on it had a pair of scales in his hand... A quart of wheat for a denarius, and three quarts of barley for a denarius; and do not damage the oil and the wine...'" (Rev 6:5-6) It is in a way daemonic, since the world of scarcity does not tolerate uselessness: everything should have a price, everything is judged according to its immanent utility, including the human being (born or even unborn), and things that have no price have no existence, they have no right for existence. It is a Darwinian, or rather Spenserian world, where the demand regulates the system, and where the fittest outlive the unfit, i.e. the "useless."    

            The underlying medium of this social system of mutual favors and calculated good is money. Money's function is to balance between the extremes of supply and demand. In a sense, money is the verdict, the judgment, the final pronouncement in the market of goods. Some call it, using the language of Scripture, "the common whore of people and nations."36 Money is not a natural medium, Aristotle says, it is a creation of the "human law" and it is in man's power "to change it and make it useless."37 This is an important observation, not for the goals of monetary theory and politics, but because it reveals the fundamental truth that reciprocal society seems to function without the need of divine laws; in this society, the highest authority is the capricious will of demand, the "sacrality" of human contracts, and the verdicts of numerical signs. As we have said, the demand brings people together and the excess pulls them apart, it builds cities and creates unions, it shapes nations and brings empires down. As Aristotle says, "[...] demand holds things together as a single unit"38 and when the need is satisfied men stop to exchange, and the "single unit" collapses. As far as there is need of exchange, there will be also "association of man with man"39 and things with a "price." 

            We must note that there is no purely reciprocal society. The described above system of social relations is to a certain degree fictional. It is fictional, because there are families and people who love each other, and there is faith and sympathy in the world. This however does not eliminate the fact that modern society, especially the capitalist liberal order, is reciprocal in nature and from here limited in justice. The liberal democracies seem as the best societies ever achieved in human history, they are peaceful, pragmatic, and free, with complex and functioning legal systems, yet they are far from perfect exactly because the existence, in their very foundation, of reciprocity based on mutual profit and need. 

            All societies, Aristotle says, that are "governed by law" are just, while all law "exists for men between whom there is injustice."40 This should mean, first, that the law is a necessity, and secondly, and perhaps more importantly, that men do not make the society just, it is the law that delivers justice.41 This is so because if all men were just, they would not need a law to live in community, and if all men were unjust, they would not be able to live with each other at all. But men are social creatures, and just and unjust are mixed, and in order to stay together, i.e., in order to preserve their humanity, they must be in society;42 law, therefore, is what keeps them united, preventing the wicked from doing evil, and permitting the good to share their goodness.

            "Of political justice part is natural, part legal,"43 Aristotle explains. The presence of the natural shows that political justice does not solely depend on human will, while the existence of the legal means that human will still plays a role in it. He differentiates, however, the political from the household justice. "The justice of a master," Aristotle says, "and that of a father are not the same as the justice of citizens."44 In the household, the father or the master is the lawgiver; he produces his laws from feelings of love and sense of ownership, and there is no concern for reciprocity in it. The father is the head of the family, his children and wife are not equal to him, but nonetheless he serves them as he would serve himself. Moreover, although higher in the hierarchy of power, the father, if there is need, would sacrifice his own interest, or even life, for the good of his loved ones. We cannot have such relations in political society. In a normal political community, the citizens are equals, sacrifice uncommon, reciprocity respected (but only as a mean for the application of law) and desired. The "magistrate" in such a society should not be the lawgiver (like the father in the family), but the "guardian of justice."45 He must care for the "equality" among citizens; he must be a "disinterested" mediator with distributive power. As a "guardian of justice," the magistrate would be obliged to follow universal principles and disregard his private interest and individual will. "That is why," Aristotle says, "we do not allow men to rule, but rational principle (logos)."46 The "rational principle" does not belong to one man or to one thing alone.

            We finish this part of our discussion with two important questions. How should we treat those people who act unjustly because of bad character, poor education, or lack of experience and wisdom? And is the virtuous man unjust, at least to himself, when he gives his share to others? These two questions, in my opinion, lead us again to the subject of generosity and from here to the act of forgiveness and mercy. I think that everyone would agree that no society could survive without personal sacrifices and mutual forgiveness. Self-denial and the ability to forgive are qualities that all of us possess by nature and that all of us practice, from time to time and to a certain degree, in our social relations. These qualities, if I use a Kantian language, are the sublime expressions of justice; they make justice a function of love. The "best counselor of kings," the appointed of God judges on earth, "and the surest of the kingly throne," Calvin says, is "clemency—which by a certain writer of antiquity was truly called the chief gift of princes."47 Self-denial without forgiveness is duty, self-sacrifice as forgiveness and mercy is love. In fact, forgiveness, and this was most clearly recognized as a social rule by the Anabaptist Christians, is the most radical act of breaking the cycle of wrongs and retributions known from Greek philosophy. That is why we must not be surprised to see that Aristotle ends Book V with the tyranny of character and ignorance, and with the generosity of the virtuous man. The end, as we know, is the most important part of all things. "The end of a matter," the wisdom teaches, "is better than its beginning, and patience is better than pride." (Eccl. 7:8)

            In the last sections of Book V, Aristotle writes, "Men think that acting unjustly is in their power, and therefore that being just is easy. But it is not..."48 And he adds, "Similarly, to know what is just and what is unjust requires, men think, no great wisdom."49 We, according to Aristotle, must not deceive ourselves that the act of judgment is simple, and that to be just is easy. Jesus advises, "Judge not so that you will not be judged." Take your judgment, your justice, with upmost seriousness. We are all slaves of our character, of our weakness, and sin. There is no man, no "king" on earth, who can say, "I am righteous," "I am knowledgeable," "I am just," without pride. And no pride can compete with humility for the crown of justice. We must forgive each other; we must know that in our freedom to judge, we are not free from being judged. In Politics, Aristotle says, "Most people are bad judges of their own case,"50 and he is right. The full truth, however, is that most people are bad judges of other people's cases, too. We are neither righteous nor we have all the truth and knowledge to judge a sinner without a mistake. To be just, to be impartial, one has to look from afar, to be "disinterested," to go somehow out of himself, out of his world and origin.

            For right judgment, conscience does not help either. Liberal philosophy that elevates personal conscience to the heights of deity is a delusion. And how can someone put conscience before judgment as both, judgment and conscience, have, as we have said following O'Donovan, an initial "retrospective" function? Conscience is the judge of wrong judgment; it cannot precede acts of will, it can only follow them.51 For good judgment, conscience is useful only if it brings us out of ourselves, and this happens only after the fact of pronouncement, i.e. after the deed. But even this would not be possible, if the source of conscience is our own, autonomous reasoning. To judge others and then to judge our own judgment with good conscience, we must necessarily have a higher standpoint than our individual human condition, intellect, and morality. If I use the language of Barth, to judge rightly in accordance to the right conscience, man should forget the "I am," man has to outgrow what he is. Man has to be lost in non-being, as a neo-Platonist would say. However, the pagan wisdom does not know "the way, the truth, and the life," (John 14:6) and the most it can offer is to promote the virtue of generosity, friendship, and noble action.52 The virtuous man "forgets" himself (here I use the language of Nietzsche53), he knows that there is no wrong in giving; there is no injustice in nobleness, because the one who gives willingly from his own suffers "nothing contrary from his own will."54 "The virtuous man tends to take less than his share," Aristotle says.55 But the pagan wisdom does not clarify why. Why should one give from his own to the others? And what is the source of the good spirit of generosity and mercy?56

            Yet, the pagan philosophy is still wisdom; it touches with blind hands the essence of justice and law. The man who refuses to keep his share, Aristotle says, is the one that acts outside the law. As a giver, one is not anymore under law, he is free, justice does not apply to his case, it is not necessary.57 Unlike Cain, the generous man accepts the judgment of the "only one Lawgiver and Judge, the One who is able to save and to destroy" (James 4:12). He knows the seriousness of the question: "But who are you who judge your neighbor?" (James 4:12) The giver does not compete; when his gifts are unappreciated, his actions reproved, or even when he is unjustly punished, his face is not "downcast." (Gen 4:4) In his freedom from all material concern, the noble man becomes the law itself. But the pagan wisdom does not reach that far in its conclusions. It is Christianity that argues that emptying himself from what he is, i.e. from his being, man becomes the law itself, the measure of all things, the Truth, as we know it revealed through the Gospel. Being the law, he is not a judge; through his sacrifice and self-giving love, he becomes the judgment itself. The pagan wisdom, the human wisdom, cannot comprehend this. It says, "This is a hard teaching. Who can accept it?" (John 6:60) And Christ answers, "What then if you see the Son of Man ascending to where He was before? It is the Spirit who gives life; the flesh profits nothing..." (John 6:63)

            We do not speak anymore simply about judgement and justice, but about obedience. The right understanding of what it means to obey and yet to stay free, to judge and yet to obey (and love), can be found only in Christianity.58 So, let us now finish our discussion on justice and judgement with St. Thomas.

III.

            "Judgment," Aquinas says, "denotes the act of a judge in judging."59 The judge is a magistrate, someone who has power and right to pronounce a verdict. There are no self-appointed judges; the judge is called to declare what is right in a case. As "called," or appointed, the judge necessarily stays above the parties in the case, he stays above his own interest, too; so he receives by the power of his impartiality and "disinterestedness," a right and authority greater than the rights and authorities of any of the conflicting sides.

            Judgment is a "definition or determination of the just or the right,"60 and as such it reflects the truth. For the right judgment we need two things, Aquinas says, reason and disposition (or will). Reason, because "it belongs to the reason to pronounce or define," and will, because the "capacity" of man to judge rightly, to utter the truth, depends on good will.61 "It is the Spirit who gives life, the flesh profits nothing." (John 6:63) So, Aquinas contends, "The spiritual man, from the fact that he has the habit of charity (or love), has an inclination (or will) to judge all things rightly according to Divine rules."62 The "spiritual man" is free from all material concern and in his freedom from the "flesh," he rises above the case, becoming a true authority. The true authority, therefore, is possible only if there is freedom from necessity and desire for good. That is why, when judging, man has to think about the object of decision, i.e. the case, as something that does not concern him personally. He should not judge for reward or for profit, nor according to his own mind; his decision should reflect only the truth in the case. He has no authority over the truth. He has no permanent authority over the parties that ask him to pronounce a verdict and impose justice. His dignity is valid only as an arm of truth, as a bearer of justice in the case where his verdict is needed. Beyond that, he is equal to all. When the case is resolved and peace achieved, the judge disappears, his authority ceases, and his office abolished. The magistrate should not be usurper of authority, his rights and functions are valid as far as his justice is needed. There is no need for judges among righteous, nor for peacemakers in time of peace. Law and justice, as we have said following Aristotle, exist for those "between whom there is injustice."

            "Man is his own master," Aquinas says, "in things which pertain only to himself, but he is not master in things pertaining to others."63 Justice, we have said quoting Aristotle, "alone of the virtues, is thought to be 'another's good,' because it is related to our neighbor." This naturally leads us to the conclusion that judgment belongs to the one who is not an interested party in a conflict, who is not acting under the pressure of necessity, who is free from material concern, appointed to decide as equal among equals, and having the power to impose order for the good of others. This "one," in political society, is the ruler, the magistrate. "Justice," Aquinas says, "is in the ruler [...]: that is as commanding and prescribing what is just." 64 The ruler, however, is not a master. The function of state power is not to dominate, but to resolve conflicts and sustain peace according to the truth; every deviation from this function of commanding and prescribing the just and the good is self-abdication from the seat of authority. Moreover, any usurpation of authority, i.e., any needless act of judging, is unjust and illegitimate.

            "Three conditions are required for a judgment to be an act of justice,"65 says Aquinas. First, it should be an act of good will (or inclination); second, it must proceed from one who has authority; and third, it must be "pronounced according to the right reason of prudence." In the first case, if inclination to good is missing, we simply don't have the will for the performance of an act of justice. In the second case, in order to judge, one must be asked to do so. From the "appointment," from the calling, as we have said, comes the authority of the judge. There are no self-appointed judges. It is contrary to the logic of justice for one to get involved in a conflict between equals, when no party needs or desires one's help. Furthermore, the absolute authority is present only when all sides agree to respect the judgment of a common arbiter; otherwise, we have "judgment by usurpation." The judge must also have the power both to pronounce a command, or a verdict, and to impose order. The decision, as we have said, must reflect the truth hidden in the obscurity of the case. And here we reach the third requirement, namely, that the decision must be according to the "right reason of prudence." Only reason, or the virtue of prudence, can tell the is and the ought in a case, i.e. the truth.  

            Aquinas spends more time in describing this last condition, because he understands that if the intellect is wrong, the will and the judgment would also be wrong. The primacy of reason in the act of judgment is crucial for the right verdict. It is so, because we may have good will, but if the reasoning behind it is wrong, its effect would also be wrong. But if we have good understanding, i.e., if our mind reflects the truth, then the will, if applied, would also reflect the truth, and the effect of the judgment would be good. Or, if we recall O'Donovan's words, "a well-made judgment is a statement that is true, and as such a deed that is effective." So, Aquinas advises that before we judge, we should patiently observe the facts. Our conclusions must avoid suspicions of mind or expectations based simply on experience. Aquinas says that the Lord "forbids us rashly to judge the intention of the heart or other uncertain things."66 He warns that we must not judge under the influence of passions and anger. Passion, or anger, makes the judge a side in the conflict; it destroys his authority. "A judge is appointed as a minister of God,"67 Aquinas says. This means that a judge is a minister of truth, and his only passion must be the passion of love. Judgment based on suspicion is a verdict produced by the opposite of love: hatred, fear, contempt, envy, or anger. In such emotional state, one is a servant of "shadows." It is easy, Aquinas says, "to believe what [one] wishes to believe," therefore, one must be conscious of his interests, feelings, and state of mind. "Know Thy Self" was inscribed on the door of the Temple of Apollo. Young people are usually the ones led by passions and imaginations, but experience, that is a quality of the old men, could also be a source of rash judgment. Instead of helping us, experience, if not used prudently, makes us proud and prejudiced.

            Thus, Aquinas concludes that before we pronounce a judgment, we must be sure that we do not "doubt the goodness of another from slight indications."68 Or as the Apostle says, "Judge not before the time" (1 Cor. 4:5), or as O'Donovan would say, judge not without a reason. We must "refrain from forming definite and firm opinions" and remember, as every noble, generous man does willingly, that it is better to "err frequently through having good opinion of a wicked man, than to err more seldom through having bad opinion of a good man."69

            I will finish with practical advice that pushes us even further in our understanding of what we call "right judgment." As we have noted, Aquinas warned that we must abstain from judging "the intention of the heart and other uncertain things," which means that we have no right, nor capacity to say without mistake or pride that a particular man is good or evil, righteous or sinful, clever or stupid. In our judgment, if it is a legitimate judgment, we do not pronounce over the goodness or badness of a man in general; the object of justice in the right judgment, and this is what I ask the reader to remember, is not the man, but his action. This is the meaning of Jesus' command "Do not judge so that you will not be judged." (Matt. 7:1) We have no right to judge our neighbor, we do not (and should never) question his morality, goodness, and value as a person; this is God's prerogative, God is the only good and righteous Judge. We are permitted to judge merely the act of man, his momentous will as expressed in the case. We pronounce a verdict over the casus, and over the particular action, a verdict according to the truth. But the neighbor, not his act, but the neighbor, is the one that we are called not to judge, but to love.

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T.S.Tsonchev is a graduate student at McGill University's School of Religious Studies and editor of The Montreal Review.

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NOTES

1 Oliver O'Donovan, "'Judge not' and 'Judge for Yourself'", paper presented at Symposium on Judgment at Duke University, Oct. 4-5, 3013. p.1

2 The internal order of these two functions is the following: judgement consists first of an act of reason and then of an act of will. It is so because, as Pope Leo XIII explains, "[...] the will cannot proceed to act until it is enlightened by the knowledge possessed by the intellect." When Leo specifies in the same encyclical that judgement is "an act of reason, not of the will," he does not exclude absolutely the will from the act of judgement, he rather emphasises its proper place. That is why he calls it later "a rational will." Clearly, the "rational will" is the one that produces judgement in "conformity with reason." (See Leo XIII, On the Nature of Human Liberty, Section 5)

3 Oliver O'Donovan, The Ways of Judgment, (Eerdmans, 2005), p.7

4 O'Donovan 2005, p.8

5 See Oliver O'Donovan, Resurrection and Moral Order (Appolos, 1994) pp.190-203

6 O'Donovan 2005, p.8

7 Ibid. p.9

8  Ibid.

9  Ibid.

10 Ibid.

11 Aristotle, Ethics, 1129a5

12 1129a20

13 1129a30

14 1129a30

15 1129b5

16 1129b10

17 1129b15

18 Under "divine laws", I mean the eternal law, the natural law, and the divine law (the law of Scripture) taken together.

19 1129b15

20 1129b25

21 1130a5

22 Francesco de Vitoria, On Civil Power. Political Writings, ed. Anthony Pagden and Jeremy Lawrence. Cambridge University Press, 1991, p. 8.

23 Thomas Aquinas, Summa Theologiae 1-2.107, article 4. The evangelical council in the New Law (the New Testament), Aquinas says, is against these three: riches, carnal pleasures, pride. "[R]iches," he writes, "are renounced by poverty; carnal pleasures by perpetual chastity; and the pride of life by the bondage of obedience."

24 1130a5

25 1130b10

26 1131a10

27 1131a10-15

28 1132a5

29 1132a10

30 1132a10-20

31 1132a20

32 1132b30

33 1133a5

34 For more on friendship see Aristotle's Ethics, Book 7. We must add here that Aristotle regards friendship as one of the primary and most important constituents of state. A long quote from Politics could be useful for the better understanding of our discussion: "But a state," Aristotle says, "exists for the sake of a good life, and not for the sake of life only; if life only were the object, slaves and brute animals might form a state, but they cannot, for they have not share in happiness or in life of free choice. Nor does the state exists for the sake of alliance and security from injustice, nor yet for the sake of exchange and mutual intercourse [...] the will to live together is friendship. The end of the state is the good life, and these are the means towards it. And the state is union of families and villages in a perfect and self-sufficing life, by which we mean a happy and honorable life." (Italics are mine) Aristotle, Politics, 1280a30-40. 

35 The seal of "scarcity in the midst of prosperity" as some Biblical commentators interpret it. In his commentary on Revelation of John William Barclay writes, "In the Old Testament, the phrase to eat bread by weight indicates the greatest scarcity." (William Barclay, The Revelation of John, Vol. II, Westminster John Knox Press, 2004, p.8)  

36 See Karl Marx, "The Power of Money" in Economic and Philosophic Manuscripts of 1844. See also Revelation 17.

37 1133a30. For trade and money, see Politics, 1257.

38 1122b5

39 1133b15

40 1134a25

41 "For man when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all..." (Aristotle, Politics, 1253a30)

42 "Man is by nature political animal [...] But he who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god; he is not part of a state." (Aristotle, Politics, 1253a5,1253a25) 

43 1134b10

44 1134b5. For more on household management, see Politics, 1259; for citizen's rights and state power and rule, Politics, 1275, 1276.

45 1134a30

46 1134a30

47 Jean Calvin, "Institutes of Christian Religion," Ch XX.10, Civil Government, (Westminster Press, 1960) pp.1498-1499 

48 1137a5

49 1137a10

50 1280a15

51 For more on conscience, see O'Donovan's The Ways of Judgment, (Eerdmans, 2005), pp.301-308

52 In Politics, Aristotle says that human society united in a state is not about companionship, but about noble action.

53 Describing the "noble man" in his characteristically paradoxical way, Nietzsche gives as an example Mirabeau, "who was only incapable of forgiving because he forgot [...] it is only in characters like these [Mirabeau's, i.e. generous to the point of forgetfulness] that we see the possibility [...] of the real 'love of one's enemies.'" (Friedrich Nietzsche, Beyond Good and Evil, Courier Corporation, 2012, p.108)

54 1136b20

55 1126b20

56 I answer to these questions in another essay, entitled Freedom is Obedience, Justice is Love.

57 "Christians," Calvin writes, "ought indeed so to conduct themselves that they always prefer to yield their own right rather than go into court, from which they can scarcely get away without heart stirred and kindled to hatred to their brother. [...] To sum up [...] love will give every man the best council [in case of loss]. Everything undertaken apart from love and all disputes that go beyond it, we regard as incontrovertibly unjust and impious." (Jean Calvin, "Institutes of Christian Religion," Vol. 20, Ch XX.21, Civil Government, Westminster Press, pp.1509)  

58 For more, again, see my essay, Freedom is Obedience, Justice is Love.

59 Thomas Aquinas, "Summa Theologiae" in Thomas Aquinas, Political Writings, ed. R.W.Dyson (Cambridge 2002) p. 193

60 Ibid.

61 Ibid.

62 Ibid.

63 Ibid. p. 194

64 Ibid.

65 Ibid.

66 Ibid. p. 195

67 Ibid.

68 Ibid. p.197

69 Ibid. p.199

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