Hans kelsen what is justice summary

In other words, if the unjust is taking too little of that which is bad or too much of that which is good, the just is the mean that lies between an unfair advantage and an unfair disadvantage. But that, according to Kelsen, is determined by the "positive morals and positive law" of the time Kelsen, , p. That means that the so-called mesotes -formula cannot find what is just, but rather only justify and strengthen a given set of moral premises.

Kelsen's criticism can be divided in two parts. Firstly, he outlines his own interpretation of Aristotle's work. Then, he proceeds to point out the flaws in that work as he interpreted it , attempting to show that i it is tautological and ii it can only reinforce a given moral system. The conclusion of his short book, not only regarding Aristotle but also Kant, Plato and Jesus, is that he cannot answer what Justice is - but neither can any of those authors.

This seems to go along with his, rather paradigmatic, theory of Law, which rests on purity, understood as autonomy and separation regarding other fields of knowledge, including morals. It is therefore very convenient that justice is an empty concept, as it reinforces the need for a theory of law that exists in itself, without having to reach out to unfathomable ideas, such as justice. It seems, then, that proving Aristotle wrong would help Kelsen reinforce his theory of law.

I believe that Kelsen's argument is based on the straw man logical fallacy, i. Namely, I believe that he misunderstands the goals of Aristotle's theory, which he wrongly interprets to be the development of a scientific-mathematical method for finding just solutions to moral problems; then, he shows that this goal which was never intended is not attained; finally, he logically concludes that Aristotle fails.

Therefore, although it has internal logical consistency, the criticism fails because it chooses the wrong premises. There is no reason to presume that Aristotle ever intended to develop one such method.

He does not claim to have done so in the Nicomachean Ethics, as Kelsen sustains. In Book V, Aristotle only stated he will "inquire about justice and injustice" in the same way he did with other virtues in the previous books. He also states that he will try to insert justice into the system he outlined before, finding how it can be a mean and what are its extremes.

Before starting the examination of moral virtues, he also states that he intends to examine "what it is, and what its subject is, and how it deals with it" NE III 9 a None of that allows for the conclusion that the development of an operational method for the determination of virtue in concrete cases will be attempted. Book IV provides another clue as to Aristotle's intentions when describing the individual virtues. When examining the virtue of truthfulness, he briefly stops to write that the study could be useful to i better understand the human character and ii show that the mesotes -formula applies to individual virtues NE IV 13 a If, then, Aristotle makes no such claim as Kelsen attributes to him, one could ask if this intention can be derived from other aspects of the book.

It is true that the whole of the Ethics is very practical in nature, to the point that a merely theoretical inquiry into the nature of justice would be unfitting of the work. It is specifically stated that the goal of the book is not a merely speculative or theoretical study; it should show man how to become good; otherwise, it would otherwise be useless b. But the same passage quoted above shows that a scientific method such as the one described by Kelsen not only is unintended, but also, according to Aristotle, impossible: for all inquiries in matter of practice must be "in outline only, not scientifically exact", especially in the study of specific cases such as justice NE II 2 a That alone should suffice to show that Kelsen's criticism is unfounded, for, once his premise is showed to be false, his line of thought falls apart.

However, it is worth further examining the matter. One aspect of Kelsen's argument still appears to be particularly convincing: that Aristotle's conception of justice is tautological. If that is so, that is, if his argument allows for no conclusions that cannot already be obtained from his premises, then it still fails in providing any insight into the nature of justice.

I will, then, attempt to show that the definition is not tautological. That is, affirming that justice is a moral virtue situated between two extremes of injustice, which can present itself in two forms, justice in distributions and justice in transactions, brings new useful information to the field of moral philosophy.

Firstly, if justice is a moral virtue, then it follows that it is a habit or trained faculty, which is a very important point in itself. From that follows, for example, that even if one knows what is just which depends on virtues of the intellectual, not moral, kind , one will not immediately and necessarily be able to act justly, for that requires the virtue of justice, and not merely a knowledge of what justice is.

Although the point may not be of great importance for the philosophy of law with which Kelsen was mostly concerned , it is a relevant conclusion about virtue theory and human character. To put it simply, Aristotle teaches us that being virtuous and knowing what virtues are are two very different things.

Secondly, the distinction between justice in distributions and justice in transactions identifies two distinct ways in which we can think about legal relations. Identifying which should be applied to what kind of human relationship has important consequences 9. For example, most legal relations in civil law work on the basis of justice in transactions. That becomes most evident in contract and tort law.

But even in those fields, distributive justice has an application. It is the case, for example, of the liability of the State for tort caused by its employees In such situations, when an agent of the state inflicts damage on a third person, the person is entitled to reparation against the State itself, not only the agent.

This kind of solution cannot be justified by justice in transactions, and is better described by justice in distributions: a certain financial burden is allocated to the State which lastly translates into the collective group of taxpaying citizens to preserve the rights of an individual. That is justifiable because otherwise an action of the State through one of its agents would reduce the total amount of goods of one of its citizens, who, acting faultlessly, does nothing to deserve such harm.

To remedy the situation, all of the society pays for the reparation, diminishing the total amount of good that would be distributed to them or enlarging the total amount of harm, which takes the form of taxes , but preserving the individual proportions.

This example should help illustrate just how much the categories outlined by Aristotle in his description of justice can be used to think legal relations Further, in his description of specific virtues, Aristotle does reinforce what appears to be the traditional morals of his time.

He exalts the bravery of the warrior who dies at war and the magnificence of the wealthy man who deploys his riches in tombs and temples for the gods. However, it by no means disqualifies his ethical theory, although it might show that he applies it in a rather conservative way. Another moral philosopher might use the same framework laid down by him, particularly in Books I and II, and identify a different set of virtues, or modify the interpretation of specific virtues described by him.

All of that could be done with the robust support given by concepts such as happiness as the good of man, moral virtue, the mean and the will, which provide excellent tools for that task. Moreover, he could hardly have acted differently. If he wanted to demonstrate that his theory works, he had to show that it could efficiently describe what his contemporaries perceived as moral virtue.

If he had used the same premises and then gone on and applied them to values which were alien to Ancient Greeks - say, if he had used them to defend the Christian values of mercy or compassion - it would hardly have been convincing to his peers. In the millennia since the publishing of the Nicomachean Ethics, several important authors in moral philosophy in the West have in some way or another used his idea of justice, and especially the distinction between justice in distributions and justice in transactions.

Izhak , p. True, for many centuries Aristotle's works on ethics have laid rather dormant, but their revival in medieval times constituted a major event in the Latin Christian world [ No wonder that Aristotle's analysis of the notion of justice as one of the cardinal virtues attracted the attention of the scholastics and provoked protracted discussions and controversies.

A vast literature was the result. The more specific sense that Aristotle gives to justice, and from which the most familiar formulations derive, is that of refraining from pleonexia , that is, from gaining some advantage for oneself by seizing what belongs to another, his propriety, his reward, his office, and the like, or by denying a person that which is due to him, the fulfillment of a promise, the repayment of a debt, the showing of proper respect and so on.

It is evident that this definition is framed to apply to actions, and persons are thought to be just insofar as they have, as one of the permanent elements of their character, a steady and effective desire to act justly.

Now such entitlements are, I believe, very often derived from social institutions and the legitimate expectations to which they give rise. There is no reason to think Aristotle would disagree with this, and certainly he has a conception of social justice to account for these claims.

Rawls, , pp. That shows that Aristotle's definition of justice is by no means tautological. It creates important distinctions to help us think concrete problems involving justice and fairness, and which can greatly influence the solution of moral and juridical problems.

But one criticism remains unanswered: the argument that the mesotes -formula itself does not help us determine what is fair seems to stand. It is indeed true that for the judge to find the centre of a line, its extremes must be previously given, and Aristotle says nothing to help us find them.

If this argument is true, that might restore some merit to Kelsen's critique with which Rawls seems to agree : Aristotle's theory would be by no means tautological or empty, but one of its points, which deserves several paragraphs of text, would appear to be destitute of usefulness.

I believe this problem can be solved. In the first place, Kelsen has omitted what Aristotle has to say about how one is to find the "mean" between the extremes. That is done through the "right reason", which is, in the case of justice and action in general , the virtue of prudence, as explained in Book VI. But even that seems to give no definite solution. Aristotle never wrote a formula that allows us to use prudence to find a just solution to a case.

Kelsen might then argue that this solution is still tautological: it does no more than to say that one has to be prudent to be able to see what is just.

But perhaps the problem lies in the fact that reading Aristotle's account of the mesotes -formula as a way to improve his theory of justice is exactly the opposite of its function in Book V. It might be rather that showing that justice is a mean is important for showing that it is a moral virtue, thus strengthening Aristotle's Ethics as a whole.

It might be one more - although an exceptionally important one - among the many cases that confirm the hypothesis presented in Book II. Justice is indeed a form of mean, and "behaves" as a moral virtue. If that were not so, Aristotle would be forced to leave an important aspect of his Ethics out of one of its most important categories, namely that of the moral virtue. In his attempt to disprove the applicability of Aristotle's of justice, Kelsen misreads the Nicomachean Ethics.

He attributes to Aristotle the intention of creating an operational method for determining how virtues, including justice, manifest themselves. However, that intention is never stated in his work. On the contrary, at least one paragraph of the book gives strong evidence that Kelsen's reading is completely incoherent with Aristotle's moral philosophy. That alone is sufficient to show that Kelsen's thought is fallacious, but more is needed to answer his rather powerful argument that the theory has no practical consequence.

To do that, we must show that his description of justice can - and does - influence the way in which we think about moral problems, and that is gives us a clearer idea of what justice is. I show, for example, that justice is a virtue - and therefore more than a simple behaviour or social construction - and that the distinction between justice in transactions and in distributions can mean the difference between receiving or not compensation for a tort caused by the State.

Even if we acknowledge that, as Kelsen states, Aristotle reinforces the morals of his time, we must reject that he does "only" that, and that it would in any way speak against his theory.

The strongest point in Kelsen's thought, however, is that the mesotes- formula nevertheless says little about what a fair solution in a given case is, which remains a problem even after we show that it is not meant to say anything about how justice should be applied.

I formulate one hypothesis to solve that problem, by suggesting that the compatibility between the formula and the concept of justice is meant to reinforce Aristotle's theory of moral virtue, rather than his theory of justice.

Aristotle [ NE ] The Nicomachean Ethics F. Peters, Trans. Aubenque, P. The twofold natural foundation of justice according to Aristotle. Heinaman Org. Bambrough, R. Aristotle on Justice: A Paradigm of Philosophy. Bambrough Ed. Bien, G. Gerechtigkeit bei Aristoteles V. Berlin, Germany: Akademie Verlag. Kelsen, H. Was ist Gerechtigkeit , 2 nd ed. Vienna, Austria: Franz Deuticke. Keyser, P.

Apeiron , 25 2 , Izhak, E. Corrective and Distributive Justice : from Aristotle to modern times. New York, U. A: Oxford University Press. Weinrib, E. Corrective Justice. He does not claim to have done so in the Nicomachean Ethics, as Kelsen sustains. In Book V, Aristotle only stated he will "inquire about justice and injustice" in the same way he did with other virtues in the previous books. He also states that he will try to insert justice into the system he outlined before, finding how it can be a mean and what are its extremes.

Before starting the examination of moral virtues, he also states that he intends to examine "what it is, and what its subject is, and how it deals with it" NE III 9 a None of that allows for the conclusion that the development of an operational method for the determination of virtue in concrete cases will be attempted.

Book IV provides another clue as to Aristotle's intentions when describing the individual virtues. When examining the virtue of truthfulness, he briefly stops to write that the study could be useful to i better understand the human character and ii show that the mesotes -formula applies to individual virtues NE IV 13 a If, then, Aristotle makes no such claim as Kelsen attributes to him, one could ask if this intention can be derived from other aspects of the book.

It is true that the whole of the Ethics is very practical in nature, to the point that a merely theoretical inquiry into the nature of justice would be unfitting of the work. It is specifically stated that the goal of the book is not a merely speculative or theoretical study; it should show man how to become good; otherwise, it would otherwise be useless b.

But the same passage quoted above shows that a scientific method such as the one described by Kelsen not only is unintended, but also, according to Aristotle, impossible: for all inquiries in matter of practice must be "in outline only, not scientifically exact", especially in the study of specific cases such as justice NE II 2 a That alone should suffice to show that Kelsen's criticism is unfounded, for, once his premise is showed to be false, his line of thought falls apart.

However, it is worth further examining the matter. One aspect of Kelsen's argument still appears to be particularly convincing: that Aristotle's conception of justice is tautological. If that is so, that is, if his argument allows for no conclusions that cannot already be obtained from his premises, then it still fails in providing any insight into the nature of justice.

I will, then, attempt to show that the definition is not tautological. That is, affirming that justice is a moral virtue situated between two extremes of injustice, which can present itself in two forms, justice in distributions and justice in transactions, brings new useful information to the field of moral philosophy.

Firstly, if justice is a moral virtue, then it follows that it is a habit or trained faculty, which is a very important point in itself. From that follows, for example, that even if one knows what is just which depends on virtues of the intellectual, not moral, kind , one will not immediately and necessarily be able to act justly, for that requires the virtue of justice, and not merely a knowledge of what justice is. Although the point may not be of great importance for the philosophy of law with which Kelsen was mostly concerned , it is a relevant conclusion about virtue theory and human character.

To put it simply, Aristotle teaches us that being virtuous and knowing what virtues are are two very different things. Secondly, the distinction between justice in distributions and justice in transactions identifies two distinct ways in which we can think about legal relations. Identifying which should be applied to what kind of human relationship has important consequences 9. For example, most legal relations in civil law work on the basis of justice in transactions.

That becomes most evident in contract and tort law. But even in those fields, distributive justice has an application. It is the case, for example, of the liability of the State for tort caused by its employees In such situations, when an agent of the state inflicts damage on a third person, the person is entitled to reparation against the State itself, not only the agent.

This kind of solution cannot be justified by justice in transactions, and is better described by justice in distributions: a certain financial burden is allocated to the State which lastly translates into the collective group of taxpaying citizens to preserve the rights of an individual. That is justifiable because otherwise an action of the State through one of its agents would reduce the total amount of goods of one of its citizens, who, acting faultlessly, does nothing to deserve such harm.

To remedy the situation, all of the society pays for the reparation, diminishing the total amount of good that would be distributed to them or enlarging the total amount of harm, which takes the form of taxes , but preserving the individual proportions. This example should help illustrate just how much the categories outlined by Aristotle in his description of justice can be used to think legal relations Further, in his description of specific virtues, Aristotle does reinforce what appears to be the traditional morals of his time.

He exalts the bravery of the warrior who dies at war and the magnificence of the wealthy man who deploys his riches in tombs and temples for the gods.

However, it by no means disqualifies his ethical theory, although it might show that he applies it in a rather conservative way. Another moral philosopher might use the same framework laid down by him, particularly in Books I and II, and identify a different set of virtues, or modify the interpretation of specific virtues described by him.

All of that could be done with the robust support given by concepts such as happiness as the good of man, moral virtue, the mean and the will, which provide excellent tools for that task. Moreover, he could hardly have acted differently. If he wanted to demonstrate that his theory works, he had to show that it could efficiently describe what his contemporaries perceived as moral virtue. If he had used the same premises and then gone on and applied them to values which were alien to Ancient Greeks - say, if he had used them to defend the Christian values of mercy or compassion - it would hardly have been convincing to his peers.

In the millennia since the publishing of the Nicomachean Ethics, several important authors in moral philosophy in the West have in some way or another used his idea of justice, and especially the distinction between justice in distributions and justice in transactions.

Izhak , p. True, for many centuries Aristotle's works on ethics have laid rather dormant, but their revival in medieval times constituted a major event in the Latin Christian world [ No wonder that Aristotle's analysis of the notion of justice as one of the cardinal virtues attracted the attention of the scholastics and provoked protracted discussions and controversies.

A vast literature was the result. The more specific sense that Aristotle gives to justice, and from which the most familiar formulations derive, is that of refraining from pleonexia , that is, from gaining some advantage for oneself by seizing what belongs to another, his propriety, his reward, his office, and the like, or by denying a person that which is due to him, the fulfillment of a promise, the repayment of a debt, the showing of proper respect and so on.

It is evident that this definition is framed to apply to actions, and persons are thought to be just insofar as they have, as one of the permanent elements of their character, a steady and effective desire to act justly. Now such entitlements are, I believe, very often derived from social institutions and the legitimate expectations to which they give rise. There is no reason to think Aristotle would disagree with this, and certainly he has a conception of social justice to account for these claims.

Rawls, , pp. That shows that Aristotle's definition of justice is by no means tautological. It creates important distinctions to help us think concrete problems involving justice and fairness, and which can greatly influence the solution of moral and juridical problems.

But one criticism remains unanswered: the argument that the mesotes -formula itself does not help us determine what is fair seems to stand. It is indeed true that for the judge to find the centre of a line, its extremes must be previously given, and Aristotle says nothing to help us find them.

If this argument is true, that might restore some merit to Kelsen's critique with which Rawls seems to agree : Aristotle's theory would be by no means tautological or empty, but one of its points, which deserves several paragraphs of text, would appear to be destitute of usefulness. I believe this problem can be solved.

In the first place, Kelsen has omitted what Aristotle has to say about how one is to find the "mean" between the extremes. That is done through the "right reason", which is, in the case of justice and action in general , the virtue of prudence, as explained in Book VI. But even that seems to give no definite solution. Aristotle never wrote a formula that allows us to use prudence to find a just solution to a case. Kelsen might then argue that this solution is still tautological: it does no more than to say that one has to be prudent to be able to see what is just.

But perhaps the problem lies in the fact that reading Aristotle's account of the mesotes -formula as a way to improve his theory of justice is exactly the opposite of its function in Book V.

It might be rather that showing that justice is a mean is important for showing that it is a moral virtue, thus strengthening Aristotle's Ethics as a whole.

It might be one more - although an exceptionally important one - among the many cases that confirm the hypothesis presented in Book II. Justice is indeed a form of mean, and "behaves" as a moral virtue. If that were not so, Aristotle would be forced to leave an important aspect of his Ethics out of one of its most important categories, namely that of the moral virtue. In his attempt to disprove the applicability of Aristotle's of justice, Kelsen misreads the Nicomachean Ethics.

He attributes to Aristotle the intention of creating an operational method for determining how virtues, including justice, manifest themselves. However, that intention is never stated in his work. On the contrary, at least one paragraph of the book gives strong evidence that Kelsen's reading is completely incoherent with Aristotle's moral philosophy. That alone is sufficient to show that Kelsen's thought is fallacious, but more is needed to answer his rather powerful argument that the theory has no practical consequence.

To do that, we must show that his description of justice can - and does - influence the way in which we think about moral problems, and that is gives us a clearer idea of what justice is. I show, for example, that justice is a virtue - and therefore more than a simple behaviour or social construction - and that the distinction between justice in transactions and in distributions can mean the difference between receiving or not compensation for a tort caused by the State.

Even if we acknowledge that, as Kelsen states, Aristotle reinforces the morals of his time, we must reject that he does "only" that, and that it would in any way speak against his theory. The strongest point in Kelsen's thought, however, is that the mesotes- formula nevertheless says little about what a fair solution in a given case is, which remains a problem even after we show that it is not meant to say anything about how justice should be applied. I formulate one hypothesis to solve that problem, by suggesting that the compatibility between the formula and the concept of justice is meant to reinforce Aristotle's theory of moral virtue, rather than his theory of justice.

Aristotle [ NE ] The Nicomachean Ethics F. Peters, Trans. Aubenque, P. The twofold natural foundation of justice according to Aristotle. Heinaman Org. Bambrough, R. Aristotle on Justice: A Paradigm of Philosophy. Bambrough Ed. Bien, G. Gerechtigkeit bei Aristoteles V. Berlin, Germany: Akademie Verlag. Kelsen, H. Was ist Gerechtigkeit , 2 nd ed. Vienna, Austria: Franz Deuticke. Keyser, P. Apeiron , 25 2 , Izhak, E. Corrective and Distributive Justice : from Aristotle to modern times. New York, U.

A: Oxford University Press. Weinrib, E. Corrective Justice. Iowa Law Review , 77 2 , Rawls, J. A Theory of Justice. Cambridge, England: Harvard University Press. Received: 24 July Accepted: 24 October Introduction In his work Was ist Gerechtigkeit , Hans Kelsen briefly presents an argument against Aristotle's conception of justice.

Aristotle's Theory of Justice Justice is a part of Aristotle's ethical system, which is presented in his Nicomachean Ethics 2. References Aristotle [ NE ] Rodrigues, A.