第38章

For the justice which distributes common possessions is always in accordance with the kind of proportion mentioned above (for in the case also in which the distribution is made from the common funds of a partnership it will be according to the same ratio which the funds put into the business by the partners bear to one another); and the injustice opposed to this kind of justice is that which violates the proportion. But the justice in transactions between man and man is a sort of equality indeed, and the injustice a sort of inequality; not according to that kind of proportion, however, but according to arithmetical proportion. For it makes no difference whether a good man has defrauded a bad man or a bad man a good one, nor whether it is a good or a bad man that has committed adultery; the law looks only to the distinctive character of the injury, and treats the parties as equal, if one is in the wrong and the other is being wronged, and if one inflicted injury and the other has received it. Therefore, this kind of injustice being an inequality, the judge tries to equalize it;for in the case also in which one has received and the other has inflicted a wound, or one has slain and the other been slain, the suffering and the action have been unequally distributed; but the judge tries to equalize by means of the penalty, taking away from the gain of the assailant. For the term 'gain' is applied generally to such cases, even if it be not a term appropriate to certain cases, e.g. to the person who inflicts a woundand 'loss' to the sufferer;at all events when the suffering has been estimated, the one is called loss and the other gain. Therefore the equal is intermediate between the greater and the less, but the gain and the loss are respectively greater and less in contrary ways; more of the good and less of the evil are gain, and the contrary is loss; intermediate between them is, as we saw, equal, which we say is just; therefore corrective justice will be the intermediate between loss and gain. This is why, when people dispute, they take refuge in the judge; and to go to the judge is to go to justice; for the nature of the judge is to be a sort of animate justice; and 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. The just, then, is an intermediate, since the judge is so. Now the judge restores equality; it is as though there were a line divided into unequal parts, and he took away that by which the greater segment exceeds the half, and added it to the smaller segment. And when the whole has been equally divided, then they say they have 'their own'-i.e.

when they have got what is equal. The equal is intermediate between the greater and the lesser line according to arithmetical proportion. It is for this reason also that it is called just (sikaion), because it is a division into two equal parts (sicha), just as if one were to call it sichaion; and the judge (sikastes) is one who bisects (sichastes). For when something is subtracted from one of two equals and added to the other, the other is in excess by these two; since if what was taken from the one had not been added to the other, the latter would have been in excess by one only. It therefore exceeds the intermediate by one, and the intermediate exceeds by one that from which something was taken. By this, then, we shall recognize both what we must subtract from that which has more, and what we must add to that which has less; we must add to the latter that by which the intermediate exceeds it, and subtract from the greatest that by which it exceeds the intermediate. Let the lines AA', BB', CC' be equal to one another; from the line AA' let the segment AE have been subtracted, and to the line CC' let the segment CD have been added, so that the whole line DCC' exceeds the line EA'

by the segment CD and the segment CF; therefore it exceeds the line BB' by the segment CD. (See diagram.)These names, both loss and gain, have come from voluntary exchange; for to have more than one's own is called gaining, and to have less than one's original share is called losing, e.g. in buying and selling and in all other matters in which the law has left people free to make their own terms; but when they get neither more nor less but just what belongs to themselves, they say that they have their own and that they neither lose nor gain.

Therefore the just is intermediate between a sort of gain and a sort of loss, viz. those which are involuntary; it consists in having an equal amount before and after the transaction.

5

Some think that reciprocity is without qualification just, as the Pythagoreans said; for they defined justice without qualification as reciprocity. Now 'reciprocity' fits neither distributive nor rectificatory justice-yet people want even the justice of Rhadamanthus to mean this:

Should a man suffer what he did, right justice would be done-for in many cases reciprocity and rectificatory justice are not in accord; e.g. (1) if an official has inflicted a wound, he should not be wounded in return, and if some one has wounded an official, he ought not to be wounded only but punished in addition. Further (2)there is a great difference between a voluntary and an involuntary act. But in associations for exchange this sort of justice does hold men together-reciprocity in accordance with a proportion and not on the basis of precisely equal return. For it is by proportionate requital that the city holds together. Men seek to return either evil for evil-and if they cana not 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. This is why they give a prominent place to the temple of the Graces-to promote the requital of services; for this is characteristic of grace-we should serve in return one who has shown grace to us, and should another time take the initiative in showing it.