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INTERNATIONAL LEGALTHEORY

A Just World Under Law Fall 2006 Volume 12

CONTENTS

Editor's IntroductionM.N.S. Sellers............ ........................................ 1 The Benefits of the Pure Theory ofLaw for International Lawyers, or:What use is Kelsenian Theory?Jorg Kammerhofer . ............... ,...........................5 Modern War and Modern LawDavid Kennedy................................................ 55

INTERNATIONAL LEGAL THEORY Fall 2006

Linking Virtue and Justice:Aristotle on the MeHan DialogueJohn Lunstroth ............................................... 99Truth versus Justice:A Tale of 1\vo Cities?Tom Syring................................................... 143

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Linking Virtue and Justice: Aristotle on Melian

Dialogue John LunstrothCoIum" . $fH.

Inter anna silent leges.Why should international law be obeyed? This

question assumes there is a law to be obeyed, andthat entities subject to the law have identifiable,concrete choices which could lead to obedience orsanctionable disobedience. I t may be that neitherof these assumptions is entirely justified. Thispaper will apply Aristotle's ideas about justice tothe "MeHan Dialogue," a debate between twoAthenian generals and members of the MeHan"magistrates and the few," as described byThucydides in his history of the PeloponnesianWar.l Aristotle suggested that justice is natural inthe sense that it arises in relations between people

I Thucydides, HIsTORY OF THE PELOPONNESIAN WAR 268 (Ricbard Crawley, tr.,2004) (1910) (hereinafter WAR). See generally, Frank Adcock and D.J. Mosley,DIPLOMACY IN ANCIENT GREIlCE (1975); Anton Powell, ATHENS AND SPARTA:CONSTRUCTINGGREEK POUTICAL AND SOCIAL HISTORY FROM 478 S.c. (1988).

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John Lunstroth as a necessaryelement in the fulfillment of their lifein, and as, society. For all groups or populations, forall relationships, justice refers to the attribute ofthose relationships that is perceived as fairness andadherence to moral ideals or virtues. In constitutedgroups, or states, one important expression ofjustice is found in the constitution and laws. Inthis paper I examine how the idea of justice as acharacteristic of international group behavior isoften identified as international law, and how it isdetermined not only by the social structure of theindividual members of the group (states), but alsoby the characters of the personalities involved. Iexamine the overlap of politics, foreign relationsand internationa l law. The Melian Dialogue offers aclassic locus in which to examine these ideas.

The Athenian generals Cleomedes and Tisias,in the sixteenth year of the Peloponnesian War(between Athens and Sparta), were sent tosubjugate the Island of Melos. Melos was a Spartancolony and, although claiming neutrality since thebeginning of the War, had become actively hostileto Athens. The Athenian generals landed and theMeHan elite went out to speak with them.2 TheGenerals, in their famous speech, at one point putit to the Melians starkly:

2 WAR, id., at 268.

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Linking Virtue an d JusticeFor ourselves, we shall not trouble youwith specious pretences ... and make a longspeech which would not be believed .. sinceyou know as well as we do that right... isonly in question between equals in power,while the strong do what they can and theweak suffer what they must.3

This quote and some of ~ , ~ ~ y i n g storyis often recited at the t ; ' ~ g t p i ' l t : g ' ~ d i ~ u s s i o n sof just war theory, to introduce the question ofinternat ional justice. For instance , Michael Walzeropens his well known book on just wars analyzingthe Melian debate and its circumstances as anexample of real-politik, as an exercise in necessity.4The Melians must yield or be destroyed, while theAthenians face the necessity of consolidating theirterritory or beingseen as weak and subjec t to losingthe War. Walzer uses this story to argue againstthe realist position that international politics andmatters of war are primarily expressions of power.5

3 Id., at 269.4 Michael Walzer, JUST AND UNJUST WARS: A MORAL ARGUMENT WTIH HISTORICALILLUSTRATIONS 4 13 (1977).5 This view of he Melian Dialogue is credited to the French classicist scholarJacqueline de Romilly in her dissertation Thucydide et l'imperialisme athenien,la pensee de l'historien et la genese de l'muvre, (1947). See Wikipedia,Jacqueline de Romi/ly, http://en.wikipedia.org/wikilJacqueIine_de_Romilly,last viewed May. 23, 2006. But some, such as Richard Ned Lebow, a politicalscientist, argue that Thucydides' main effect is to put political actors on notice

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John LunstrothHe points out that if we accept the realist positionmoral discourse is foreclosed, and one can speakonly of interests, not of justice.

I am not interested in this story as a way tointroduce a moral discourse about war, but ratheras a way to highlight some of the problems oftransnationaljustice. Thereis little agreement aboutwhat justice requires, except within the narrowconfines of specific homogenous communities.When different political communities come intocontact with one another it is hard to know howto best resolve conflicts between them.6 Apartfrom power differentials, there seem to be fewuniversal standards by which to judge the relativemerits of the various positions or interests that findthemselves in disagreement. The concept of justicerequires a moral assumption that some solutionsare better than others, or that certain inter-societalstructures have fairer outcomes. But this intuitionseems to occur more frequently among certain

that their actions will be judged by dispassionate reporters who will questionthe integrity of the political act. In this case it shows the moral decay of Athens,that it has become a power-mad tyrant, no longer Pericles' shining city on thehill. See Wikipedia,. Thucydides, http://en.wikipedia.org/wikilThu.cydides, lastviewed May. 23,2006. See also Walzer, supra note 4.6 See, e.g., WHAT IS JUSTICE?: CLAsSIC AND CONTEMPORARY READINGS 3-10 (Rober tC. Solomon & Mark C. Mmphy, eds., 2000); see also, e.g., JUSTICE (Alan Ryan,ed., 1993); Hans Kelsen, WHAT IS JUSTICE?: JuSTICE, LAW AND POLITICS IN THEMmROR OF SCIENCE (1957).

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Linking Virtue and Justicekinds of people. When confronted with a problem,everyone will have some sense of what would be afair outcome, based on various factors, includingpsychological and factual considerations. But asthe problems grow in scope, and begin to involveth e welfare of large populations or states that do no tshare a common culture, it becomes increasinglydifficult to agree on which solutions would be fair.Thus, international or transnational justice becomes the province of the elite, often madeup of persons who have been educated in law,political science, economics, and other relevantdisciplines that in theory inform their evaluationsof international problems. All these disciplinesseek justice. State structure is for justice ; law is forjustice; political theory is for justice; internationaland foreign affairs are for justice. In short, allsocietal structures relate to justice. Society isconstructed and run largely by elites, and theseelites have elaborated views of these justiceoriented principles.

Grasping what is fair and just, when the subjectis states and large numbers of people, turns out tobe exceedingly complex. There are innumerableparties whose interests, desires, and needs must beweighed and balanced. Aristotle's ideas of justiceprovide a useful analytic framework through whichto develop some understanding of transnationaljustice. Aristotle's starting point is a general idea

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John Lunstrothof justice based on an evaluation of whether thereis an excess or a deficiency. Justice is havingneither too much nor too little. This at first soundslike a concept of distributive justice, since it isquantitative, perhaps calling to mind Walzer'sanalysis in which all of justice is concernedwith the impersonal distribution of goods.7 ButAristotle is no t so easily pinned down. He locatesgeneral justice in the human being, as the properdevelopment and ability to exercise all the virtueswelL I t is "complete virtue in relation to another."sIt is the capacity for virtuous interactions. Thus,in the realm of politics, it is not only about fairdistribution ofgoods [equal goods for equal people 1,9whether "honours or wealth,"l0 bu t "living inaccord with each virtue."ll The problem of goods isone of equality. The emphasis is on the goods andattributes of the persons to whom the goods arebeing distributed. But in general justice the focus ison the character of the individual. The potential for1 Michael Walzer, SPHERES OF JUSTICE: A DmllNSE OF PLURALISM AND EQUALITY(1983).8 Aristotle, NICOMACHEAN ETHICS 1129bl (Terence Irwin, tr., 1999) [hereinafterEN]. See generally ESSAYS ON ARIsTOTLE'S ETHICS (Amelie Oksenberg Rorty,ed. 1980);J.L. Ackrill, ARIsroTLE THE PHILoSOPHER 135-155 (1981); W.D. Ross,ARISTOTLE 187-234 (1937).9 [d., 1131aJO.10 [d., 1130b31.11 [d , 1130b25.

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Linking Virtue an d Justicejustice resides in individuals, but what we "call justis whatever produces and maintains happiness andits parts for a political community."12 For the mostpart this is the law, since the law "requires actionsin accord with .. virtues.13 Justice is the norm in theindividual that is right with "correctly establishedlaw,"14 and in this way the individual is linked tohis or her constituted community. Since "a humanbeing is by nature a political animal,"15 the endof the individual is subsumed into the end of thepolitical community, "for the sake of living well."16Justice is a nested set of norms at one end residingin the habits of the individual and at the other inthe structure of the state. If life proceeds in accordwith these norms the people and the communityboth flourish. 17 This is an outline of a robus t theory'2 [d., 1129bI8..3 [d., 1129b24.14 [d., 1129b25.15 Aristotle, POLITICS 1253aJ (C.D.C. Reeve, tr., 1998) [hereinafter POL). Seegenerally Peter L. Phillips Simpson, A PHILOSOPHICAL CoMMENTARY ON THEPOLITICS OF ARISTOTLE (1998); W.D. Ross, ARIsTOTLE 235-269 (1937).16 [d., 1252b28.17 See alsQ, POL 1280a24-1280b6. The picture is complicated by the idea that theconstituted group, the state, exists "prior in nature to the household and to eachofus individually, since a whole is necessarily prior to its parts." POL. 1253a19.I bracket a discussion of the implications of this wholism. It suggests justice, orinjustice, or jus t and unjust acts, are in a fundamental way determined by nature.A discussion of determinism and responsibility, especially with regard to theindividual, is beyond the scope of this article.

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John Lunstrothof justice that fits into and links Aristotle's theori esof biology, ethics and politics. Although it requiresfamiliarity with a complex worldview, it providesan intuitively correct, humane, and comprehensivetheory grounded in individual and political life. Themore fanciful work of contemporary scholars suchas John Rawls and Michael Walzer seems somehowone-sided when compared to Aristotle. Is

I now apply Aristotle's theory to the relationshipbetween the Athenians and Melians described inThucydides' MeHan Dialogue. The problems facedby these antagonists, the arguments made, thepostures adopted, and the possible solutionsreached are remarkably similar to the basicproblems of justice found in contemporaryinternational disputes. This discussion also willprovide a basis for considering current disputesabout human rights injustices and their place inth e international order.

I. THE MELIAN DIALOGUE19The MeHan dialogue took place towards the

IS See John Rawls, A THEORY OF JUSTICE (1971); John Rawls, THE LAW OF TIlEPEOPLES (1999); Walzer, SPHERES, supra note 7.19 All references to the Melian Dialogue are from Thucydides, THE PELOPONNES-IAN WARS, supra note 1.

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Linking Virtue and Justiceend of a negotiated peace (the Peace of Nicia)between Athens and Sparta (Lacedaemonia).20 The Athenians sent two generals and their forcesto the island to complete their hegemony in theAegean Sea, peacefully if possible, otherwiseby force. The dialogue occurs between the twogenerals and some members of the MeHan elite(oligarchy). The underlying question concernsjustice as noncompliance with one, the law or two,fairness. 2I

There are several bodies of law or treaties thatcould apply to the Athenian aggression.22 Melosa remote island in the Aegean Sea in Athenianterritory was a colony of Sparta. It had claimedneutrality at the outbreak of the War (431 Be).In 425 Athens began to try to enroll Melos as itscolony, since Athens was a sea power and did notlike islands it did no t control. Melos rebuffed Athen's offers, and at some point assumed a hostileattitude towards Athens. As a colony it had somelegal claim on Sparta to protect it, assumingits treaty with Sparta included provisions for

20 WAR, supra note 1 at 236-240; Adcock, DIPLOMACY, supra note 1 at 53-59.21 Aristotle, EN 1137b13-24 (Terence Irwin, tr., 1999). See also J.L. Ackrill,ARISTOTLE TIlE PHILOSOPHER (1981).21 For a general treatment of treaty law among the Greek city-states, see e.g.,David J. Bederman, lNrERNATIONAL LAW IN ANnQUflY 154.183 (2001).

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John Lunstroth protection.23 But at this point in the Pelopponesian

IWar, Sparta was too weak. In addition, Sparta'spower was on land, whereas Athens controlled theseas. Melos could not expect help from its historicalties to Sparta. Sparta and Athens had concluded! the Peace of Nicea, a peace treaty, several yearsearlier, but the intended subjugation of Melos was" a sign of how far it had fallen apart. 24 Both theAthenians and the Melians had laws, but there wasno treaty between them. The Athenians may havehad laws that govern their generals, but these playno role in the dialogue. Melos was an oligarchy,25and this fact does playa role.

Athens and Melos were both states in the sensethat they each had citizens who shared a nationalterritory, cooperated to prevent wrongdoing, andsought the mutual benefit of the fellow citizens andfamilies. 26 Both states had a constitution, and lawsbased on that constitution, to organize public lifeand guarantee justice among the citizens.27

23 [d., at 155-159. 24 See WAR, supra note 1 at 229-274; Adcock, DIPLOMACY, supra note 1 at 45-59; POL, supra note 15 at 176-181; Bederman, supra note 22 at 156.25 WAR, supra note 1 at 9.26 Aristotle, POLmcs 1280b29-41 (C.D.C. Reeve, tr. 1998) [hereinafter POL].27 EN, at 1159b25 1161bll.

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Linking Virtue and JusticeOur story is about two states and we are interested

in extracting insight about justice from it. Eachstate has its own system of justice embodied inits laws, bu t these laws do not extend to cover theconflict between the two states. Since there appearto be no overarching laws to govern the conflict,the standards for its resolution must derive fromjustice or fairness or some similar measure whichwill be very hard to identify objectively.

On Aristotle's view, if we are going to look forjustice outside of the law, it is appropriate to usethe standard of fairness. 28 But how is the standardknown and who is to apply it? Aristotle suggeststhat a "decent" or "respectable" person shouldknow the standard because justice is apparent toanyone with a just character.29 He distinguishesbetween just (or unjust) acts and just (or unjust)character.3o A person with a just character candiscern whether an ac t is unjust or not becauseshe will have all of the virtues developed in he rcharacter, and justice is excellence of character,not intellect. Therefore, a decent person couldlook at our story and determine, in the absence ofa system o f laws, whether the acts of the Athenians

28 [d. at 1137b13-24. 29 [d. 30 [d. at 1129a4 1138b II.

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John Lunstroth(or Melians) were unjust, and, separately, whetherthe Melians (or Athenians) suffered an injustice.

But there is a problem. Who is this decentperson? Does it make sense to asswne that adecent Athenian and a decent MeHan would reachthe same conclusion? To ask the question moregenerally, is there a "natural" law by which actsthat occur outside of a legal system can be judgedin terms of justice? Aristotle suggests that thereis.31 The Melian dialogue illustrates the problemsraised. I will recite parts of the dialogue and thencomment:

Thucydides: Melos was an island colony ofLacedaemon. As Athens expanded its empire,it was at first neutral, but in time becamehostile to Athens. Athens sent an armedforce to Melos and "before doing any harmto their land, sent envoys to negotiate." TheMelians did not bring the envoys (GeneralsCleomedes and Tisias) before the people, butsent some magistrates and other importantcitizens to meet them elsewhere.

Comment: The status of Melos as a colonyimplies a treaty relationship between Melosand Lacedaemon. A treaty is an agreement that311d. at 1134bI9-1135a6.

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Linking Virtue and Justiceguarantees just behavior between the states (asdefined above), but which creates no offices incommon to make the citizens good and just; i.e.,it is an agreement between constituted groups,and is in that sense external to the justice systemof the laws of either Lacedaemon or Melos.32 Thetreaty establishes rules by which to measure theinteractions between Lacedaemon and Melos. Thetreaty is a standard of justice, a law governing theparties. But it is law in a different sense than lawderived from a constitution, because constitutionalsystems are intended to serve more comprehensivepurposes, encompassing a system of laws andenforcement regimes, enabling governing bodies,and systems of oversight for the purpose of orderingrelationships in a unitary society.33 We do not knowfrom this dialogue what kind of mechanisms thetreaty between Melos and Lacedaemon contained,but they did not rise to the level that unified thetwo poliCies in one state.

The issue of who can identify an injustice ispresented here and will be developed below. Thereare five actors potentially represented: Athens,the Generals, the elites from Melos, the Melian

32 POL, at 1280a34-1281a1.33 Anne Peters, Global Constitutionalism Revisited, 11 Im'L LEGAL THEoRY 39(2005); Louis Henkin, Elements ofConstitutionalism, Center for the Study ofHuman Rights Occasional Paper (1992).

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John Lunstroth citizens, and Sparta. It is not clear whether a stateis th e same as its citizens. For the present I willassume that they have separate identities but acommon concern. Athens the state is presented aswanting to expand its empire as part of its strategyto consolidate rule of the seas. The Generalsrepresent Athens, but they also are potentiallydecent people that can recognize injustice whenthey see it. The MeHan elite are like the Generals,potentially decent people; but they are presentedhere as being directly responsible for th e welfare oftheir citizens in a way the Generals are not directlyresponsible to the Athenian citizens. Lacedaemonremains unrepresented in the dialogue, except asa potential, but probably not actual, guarantor ofMeHan security .

Generals: Since the negotiations are not togo on before the people, in order that wemay not be able to speak straight on withoutinterruption, and deceive the ears of themultitude by seductive arguments whichwould pass without refutation (for we knowthat this is the meaning of our being broughtbefore the few), what if you who si t therewere to pursue a method more cautiousstill? Make no set speech yourselves, buttake us up at whatever you do not like, andsettle that before going any farther. And firsttell us if this proposition of ours suits you.

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Linking Virtue and JusticeComment: The Athenians want the Melians tosurrender, and one of their strategies was to gostraight to the Melian populace (demos) to deceive

them into surrendering. The Generals thus revealthe intention of Athens. This is the first clue tounraveling the problem of justice, because an act ofinjustice can only be done intentionally (althoughan unjust act may be done unintentionally). Foran ac t of injustice, the agent must be acting withknowledge of the person (Melians), instrument(war apparatus), and goal (subjugation), and theagent must not be acting in ignorance or becauseof force, and the act must not be coincidental tosome other end.34 There are complications here.Can a state have an intention and commit aninjustice? Or, is it the Generals that should bearthe blame if such an act is an injustice? Is the factthat the Generals intended to deceive the Meliansrelevant to whether or not justice is being done? Ifthe lie is successful and the Melians surrender, andthe result is less suffering, has the lie resulted inless injustice than if the Generals lay waste to theMelians and all the while told the truth?We are also told in this passage that the MeHanelites have decided to keep the populace out of thisnegotiation. This detail in and of itself raises manyquestions. Is that how the MeHan laws were set up?

34 EN, at 1135a24-28.

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John liunstroth Or, did these ruling elites take it on themselves tomeet the Athenians? Would i t make a differenceif the elite kept the Melian citizenry ou t of thenegotiation because they did not want to thepopulace to be scared or did no t trust the peopleto make the right decision?35 The Generals seemedconfident in their ability to convince the MeHanpeople to surrender. Why would the elites notwant the people to be involved in the substantivedecision of how to respond to the Generals? Weknow from the story that the elites decided notto surrender and a great suffering was ultimatelylevied on the Melian people by the Athenians. Itis clear that if the legal system of the Melians wasse t up so that the elites had legal authority to keepthis matter from the populace and negotiate thematter on the populace's behalf, that this wouldno t legally have been an ac t of injustice. But is thisthe kind of matter that is not planned as part of thelegal system,36 and therefore invokes the query asto fairness among the Melians?

The Genera ls offered the elite time to think abouttheir offer and discuss it. This suggests fairness,

3S Aristotle thinks the people can make the right decision much of the time, bu tno t all the time. POL, at 1281b25-28.36 For example, is this a Schmittiane mergency thatjustifies suspending the rightsof citizenship? See. e.g., William E. Scheuerman, Survey Article: EmergencyPowers and the Ruleo fLow After 9111, 14 J. Pol. Phil. 61 (2006).


Linking Virtue and Justice because had the Generals not intended to try toresolve the conflict peaceably, they would Simplyhave attacked. But how is this to be interpreted inlight of their goal to subjugate Melos? If the goal isunjust, can the means be just? Are there degreesof justice? Is the end more unjust if the means wasalso unjust? Perhaps, had the Melians accepted theinjustice offered, the final injust ice would not havebeen as great. This is an example of the strengthof the idea of procedural fairness. We are temptedto give the Athenian generals some moral groundbecause they are offering an easier way, an optionthat reduces the risk of extreme suffering in returnfor a guarantee of colonization, bu t not destruction.Some theories of justice hold that if the procedureis fair, then the outcome must be just.37 Legalsystems often work on this principle. If a crime iscommitted, and the procedural requirements of thelaw are adhered to, the outcome is thought to bejust. But, we will see, this conception does no t offera comple te accounting for all problems of justice:

Melians: To the fairness of quietly instructingeach other as you propose there is nothingto object; bu t your military preparations aretoo far advanced to agree with what you say,

31 See e.g., Rawls, A THEORY OF JUSTICE, supra note 4. For a survey of differentconceptions of justice, see WHAT IS JUSTICE?: CLASSIC AND CONTEMPORARYREADINGS, supra note 5.

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John Lunstrothas we see you are come to be judges in yourown cause, and that all we can reasonablyexpect from this negotiation is war, if weprove to have right on our side and refuse tosubmit, and in the contra ry case, slavery.

Comment: The Melians take note of theprocedural fairness offered by the Athenians, butmake a practical point based on their experiencein human affairs. The Athenians' offer to settle nowfor less injustice is made in bad faith, accordingto the Melians', because the Athenians are readyfor battle. Anyone who has prepared thus far, theMelians think, intends to finish th e business forwhich he has prepared. It is an accepted form ofnegotiation to prepare for the worst bu t be willingto settle in order to reach a negotiated end. Lawyersare familiar with this principle in preparing for trialand being open to settle even after trial has begun.Perhaps we are seeing the introduction of a tragicseries of evaluations made by theMelian elites, smallmiscalculations that lead to their destruction.38 Ifthere had been a system of procedural justice, forexample, a mechanism in a treaty between Melosor Lacedaemon and Athens, then the risk of thesemiscalculations would be diminished, but there

38 See Powell, ATHENS, supra note 1, at 182-184.

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Linking Virtue and Justicewere no such arrangements.39

The Melians note that the Athenians are "judges"in their own cause. Thucydides, and the Melians,recognize that justice within and among theAthenians means something different than justicebetween the Melians and the Athenians.The Melians also make reference to the idea ofhaving "right" on their side. This idea of "right"signifies justice. If the Melians have justice on theirside, they say, and for that reason refuse to submit,the Melians will be at war. If the Melians submit to

the injustice, and go against the "right," the endresult will be slavery. The standard of justice theMelians' reference must be naturallaw,40 becausethere is no constitutional law that applies, andno treaty based law. The Melians' reference tonatural law by which justice or injustice can be

39 The Peace ofNicia between Athens and Sparta did indeed have an arbitrationprovision, but the Peace was all but dead at the time of the Melian invasion.WAR, supra note I, at 237 ("But should any difference arise between them theyare to have recourse to law and oaths, according as may be agreed among theparties'').4111 use the terms "natural law" and "customary international law" interchangeablyin this paper on the Aristotelian grounds that law arises naturally from theinteractionofpeople. On this account there is nothing to suggest a manifestationof natural law cannot change to accommodate new social circumstances. lfthisis the case it becomes conceptually difficult to distinguish between customaryinternational law and natural law. I do not mean to suggest this explanation iscomplete in any way, but it serves the PUlpOses of this paper.

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John Lunstrothidentified suggests that the Melians' are "decent"people, virtuous people who are qualified to judgewhether an act is just or unjust. The natural lawthey are referring to-"right"-has the qualityof existing everywhere, independent of a stateconstitution and/or legislature, but that does notmean it is always the same.41 The Melians assertthat submission to slavery is wrong, and that toseek to enslave, oppress or destroy another stateis wrong. Since it is not legally wrong, it must bea moral wrong. Submission to slavery is morallywrong because i t contradicts the purpose of thestate, which is to provide an environment to makecitizens good and just,42 and because it is unjust fora free person to be in a position of slavery. 43

Aristotle offers interesting and very relevantobservations about slavery as a spoil of war.44 Hebegins by noting that there are people who arenaturally closer to being animals and that they arenatural slaves. Likewise there are natural masters,and therefore the relationship between a master41 EN, 1134b29-32.42 POL, at 1280b39-128Ia2.43 ld. at 1254b18-19. See also, Martha Nussbaum, Shame, Separateness,and Political Unity: Aristotle's Criticism of Plato, in EsSAYS ON ARISTOTLE'sETHICS 395, 420 (Amelie Oksenberg Rotty, ed., 1980) (hereinafter EsSAYS ONARISTOTLE).44 POL, at 1255a3-1255b15.

Linking Virtue and Justiceand slave is a na tural one. 45 But, he goes on to pointout, there is a kind of slavery that arises by law. Inthis case, he says, the "law is a sort of agreementby which what is conquered in war is said to belongto the victors."46 Many have challenged this k ind ofslavery, i.e., slavery by force, as being unju.'i;)t, eventhough it is legal. The conflict in these points ofview arises because to be victorious in war impliesvirtue, as well as excellence, and the virtuousare natural rulers. It is, therefore, just that themore powerful rule. There is also justice in thisconception of slavery, because it is lawful. On theother hand, the idea of just ice implies benevolence,i.e., a concern for the good of another, that slaveryis no t good for the slave. Furthermore, wars can beunjust, and it is no t just that a person be enslavedif it is not his or her natural state.47

Aristotle concludes that because when slavery isnatural it benefits both master and slave, bu t whenthe master/slave relationship has been establishedby law or force it harms both master and slavebecause i t is not virtuous, it is therefore unjust. 48He implies, bu t does not directly state, that i t is4S POL, 1255al-2.46 POL, 1255a5-6.47 POL, 1255a3-32.48 See also, Plato, REPUBLIC, 338c, 343c.

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John Lunstroth not the unjustness of the war that gives rise to theviolation of natural law, but it is enslavement byforce of law, which can occur after both just andunjust wars, which violates natural law. The focusseems to be on the use of force to maintain anunnatural relationship between people that givesrise to the injustice. Aristotle thus explains whythe Melians thought the idea of slavery was not"right."

Although we are separated by at least 2,300years from these events and analyses, it is obviousthey are as relevant today as they were then. Theargument between what is naturally unjust andwhat the law or force allows, reflects a deep andintractable problem that seems to arise as a resultof natural differences among human kind.49

The Melians then agree to let the Athenianspresent their case:

Athenians: Forourselves, weshallnottroubleyou with specious pretences-either of howwe have a right to our empire because weoverthrew the Mede, or are now attackingyou because of wrong that you have done

49 See e.g., Plato, PHAEOO; Martin Luther King, Jr., Letter From a BirminghamJail, April 16, 1963, available atbttp:/lwww.africa.upenn.edu!Articles_GenJLetter_Birmingham.html, last viewed July 11, 2006.

Linking Virtue and Justiceus-and make a long speech which would notbe believed; and in return we hope that you,instead of thinking to influence us by sayingthat you did not join the Lacedaemonians,although their colonists, or that you havedone us no wrong, will aim at what is feasible,holding in view the real sentiments of usboth; since you know as well as we do thatright, as the world goes, is only in questionbetween equals in power, while the strongdo what they can and the weak suffer whatthey must.

Comment: This is the famous core of the dialogue.The Athenians purport to cut to the chase andlay the truth on the table. "Let us have no morepretense," they say, "we bo th know 'right .. isonly in question between equals in power.'" Herethe Athenians refer to another theory of justice,or perhaps it can be thought of as a condition of,or constraint on, the "right" referred to by theMelians. The Melians had asserted that it is unjust,or "wrong" to enslave them against their wishes,but the Athenians respond that that standard wouldonly be relevant if the Melians were equal in powerto them. But is that true? Why should a standard ofjustice apply only if the parties are of equal power?One might think it exactly the opposite becausein a just society laws are to some extent for theprotection of the weak.

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John LunstrothAristotle explains that although justice seems

to be equality, in fact it is a complicated matterthat depends on political philosophy.50 As a basisfor the discussion of equality and justice, Aristotlefirst distinguishes general justice from specialjustice. Justice in general encompasses all virtues,and in some ways is synonymous with virtue andwell-cons tituted laws. Injustice can be identified asunlawful or unfair acts. An ac t is unfair if it resultsin an excess or a defiCiency. That is, what is just isthe mean, i.e., the state of being neither too muchnor too little. 51 But there is a kind of injustice(special injustice) that amounts to over-reachingassociated with anythingthatcan be divided amongmembers of a community who share in a politicalsystem. Special justice is equal shares for equalswhile recognizing no t everyone is equal. Equality asjustice is spoken of in reference to special justice,no t justice as the whole of virtue. Special justice isa virtue on pa r with courage and other individualvirtues.52

Democracy is the political system in whichpeople think they are equally free and thereforeunqualifiedly equal. On the other hand, oligarchy

50 POL, 1280alO-ll, 1282b20-23. 51 See EN, 1129a5-6. 52 SeeId.

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Linking Virtue and Justice is a system in which those who are unequal in somerespect, think themselves unqualifiedly unequal,e.g. in property or wealth. As a result, democratsthink themselves entitled to an equal share ofeverything because they are equal, whereasoligarchs think themselves entitled to an unequalshare (more) of everything because they areunequal.53 On these principles we can say justiceis equality, bu t only for equals; and we can saythat justice is inequality, bu t only for those whoare not equals. But, Aristotle says, neither of theseformulae work because people judge themselvesbadly and because they agree with what constitutesequality in the thing, but disagree what constitutesequality in the person.54 Aristotle applies thisproblem of equality (as justice) in practice to arguethat what constitutes the best political communityis on e which does not concern itself with the equalor unequal (special justice), bu t with creatingconditions for nobility and political virtue (generaljustice). Aristotle would say that between theAthenians and the Melians there is no politicaljustice because they do no t share "in common a53 POL, at 1301a28-3S. Powell notes the sarcasm or irony in the Athenianargument. The Athenians are democrats, but argue from the oligarchic position.There is equality (right), but only among equals. Since not everyone is equal, noteveryone is entitled to the right. The Melians in tum respond with a democratic(Athenian) argument. Everyone is equal with regard to the right. Powell,ATHENS,supra note 1, at 182.54 Id. at 1280a12-1S.

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John Lunstroth life aimed at self-sufficiency," nor are they free andeither numerically or proportionately equaL55

In this mix of possible ways to understandequality in a political context in which there isno community, i.e between states, what do theAthenians mean that "right... is only in questionbetween equals in power?" The Melians had usedthe term "right" to refer to a natural law thatslavery by force is unjust. The Athenian responseindicates that the idea itself of natural law is notapplicable, not available for use, unless the twosides are equaL The Athenians reject the Melians'idea of justice. Aristotle is clear that strength is avirtue and i t is natural for some to be stronger thanothers. Justice can be found in relations amongequals, so on it s face there is philosophical supportfor the Athenians' reference to equality amongequals.

Before going further it is important to noticewe are now discussing the terms of natural law.There are no statutes or constitutions to guidethe international transaction facing the Meliansand Athenians. Each tries to create the law, thestandard by which justice can be measured, byargument, through rhetoric and reference to"rights." Both states have sovereignty (autonomy),S5 EN, at 1134a27-29.

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Linking Virtue and Justice but neither can appeal to a shared system of laworgovernment to regulate them both. The referenceto natural law is an attempt to force recognitionof such a common structure, albeit one that ischangeable.56

It is also clear to Aristotle that justice can bemeasured by the ends, not simply by the means.Procedural fairness is not enough, and in some waysthe Athenians are making a procedural argument.They assert that all things being equal, it is just forthe powerful to call the shots, and therefore whathappens is just. The Melians, however, look to boththe procedure and the end. They argue that right ison their side and therefore they are forced to takean uncompromising position. For them this rightis deontic, a rule that should not be broken forutilitarian or other ends. But they also invoke rightas end, arguing that for them it would be unjustto be enslaved by the Athenians. The Melians'argument is consistent with that of Aristotle.

Can it be said that either the Athenians or theMelians have a betterclaim to justice? On Aristotle'sreading of politics and ethics, there is a law innature and failure to adhere to i t does not resultin punishment by an authority, but degradation

S6 See footnote 39 for a discussion of natural law and customary internationallaw.

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John Lunstroth as a human being or political community. On thisreading what is at stake between the Melians and theAthenians is virtuous life, and justice as characteror general justice. The cost to the Athenians ofpursuing their excessive (unjust) political conquestwill be loss of reputation or moral degradation.People will be able to "name and shame" them, asour contemporary human rights workers say.

After invoking right as a standard for those equalin power, the Athenians state the rule of justiceof th e strong: "the strong do what they can andthe weak suffer what they must." On Aristotle'sgeneral theory of justice, this statement representsinjustice. On the MeHan's idea of natural law thisstatement also represents injustice. Contrary tothe opinion of the Athenians, they exist in a matrixof natural principles which do provide a meanswith which to measure what is just and unjust,bu t this matrix is moral and easily ignored bythose who cannot take their own measure well. Itis a measure, in some ways, of the philosophicalclass of people, of people with the leisure time tocontemplate and develop virtue and decencyY Itis th e MeHan elite who assert natural law to theAthenians, and perhaps as decent people they feltit was important to try to gUide the interactionwith th e Athenians in conformity with natural law,57 EN, 1177a13-18.

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Linking Virtue and Justice rather than letting fear or deception carry the tideof public opinion to the shores of slavery. But herewe must question again whether the Melian elitewere indeed acting "decently," with the highestvirtue, or whether they were infleXibly sticking tothe law without regard to the ends. 58 It is clear thattheir adherence to principle did lead to greatersuffering, so how are we to interpret this? Aristotleagain provides insight into this problem. He arguesthat the decent ma n is flexible and able to fill in therules if the rules do no t cover the situation.59 Herethe elite reference the rules where there are nolaws, and meet one aspect of the test for decency.But it can be argued that because the elite clung tothe rule, the fate of the Melians was much worsethan had they not, and therefore they do not meeta different test of decency. This can be seen inAristotle's system as an act of special injusticebecause the elite claimed honor for themselves (inadhering to the "right"), and although they wereincreased in honor, their beneficiaries, the Melianpopulace, suffered egregiously:

58 For a contemporary version of this argument in the context of the VietnamWar, see Thomas Nagle arguing that there are some things that are absolutelywrong, and RM . Hare responding with a utilitarian argument that sometimesthere are exceptions. Thomas Nagle, War and Massacre, in WAR AND MORALRESPONSIBILITY 3 (Marshall Cohen, Thomas Nagle & Thomas Scanlon, eds.,1974); R M. Hare, Rules of War and Moral Reasoning, in WAR AND MORALRESPONSIBILITY46.59 EN, at 1137b20-24.

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Comment: The Melians acknowledge the"injunction" of the Athenians not to speak of right,but only of interest, yet they consider themselvesobliged to continue speaking of right. They nowexpand their earlier invocation of "right" byasserting it is the "common protection" of boththe Melians and the Athenians. Because there is notreaty, they are invoking a system of natural lawthat appears to be agreed on; a system of customthat allows those in danger to appeal to the "fairand right" for protection. The Melians attempt topersuade the Athenians by reminding them thatthe right to claim against the "fair and right" evenbelongs to them, and if the Lacedaemonians cometo the Melians' protection the Athenians may needto call on that right themselves.


f Linking Virtue and Justice

Here we find another reference to the realities ofdiplomatic life. The Melians acknowledge that theyare entitled to use any arguments possible to savethemselves, even if they are deceptive, if there isa chance they will succeed. Although I have triedto describe the "decent man" standard, and use i tto distinguish what the MeHan elite are doing, it isnot clear that the Melians could do anything otherthan what they are doing. If their assessment ofthe Athenians is accurate, i.e., that the Atheniansintend destruction without recourse, then theMelians have done all they can. However, as I readthe dialogue so far there is nothing to suggest theAthenians wanted anything more than to reducethe Melians to slavery (as opposed to the wholesaleslaughter that occurs later :60

Athenians: The end of our empire, if end itshould, does not frighten us: a rival empirelike Lacedaemon, even if Lacedaemon wasour real antagonist, is not so terrible to thevanquished as subjects who by themselvesattack and overpower their rulers. ThiS,however, is a risk that we are content to take.We will now proceed to show you that weare come here in the interest of our empire,

60 It was no t nonnal in Greek warfare hostilities to end with the total destructionof a state. Bederman, INTERNATIONAL LAw, supra note 22, at 155; Adcock,DIPLOMACY, supra note 1, at 196.

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John Lunstrothand that we shall say what we are now goingto say, for the preservation of your country;as we would fain exercise that empire overyou without trouble, and see you preservedfor the good of us both.

Comment: The Athenians express a lack ofconcern at the Melian threa ts of their own ruin; mostimportantly though, the Athenians again insis t thatthey have come to seek a peaceful surrender. Theyrecognize the good in preservingthe Melian countryand the Melian people. They recognize it as a goodfor both Melos and Athens. This strengthens theidea that the Melian elite made the wrong decisionin the interest of adhering to the law. Thus, theAthenians in fact look to the good of the Meliansin their offer. Although they depend on force, thisis beginning to look like virtuous force, or, if notvirtuous, at least force with practical reason. Whatinterest would it serve for the Athenians to destroythe Melians if they surrendered and acknowledgedtheir fealty to Athens? They are currently acolony or protectorate of the Lacedaemonians,who are acknowledged to be better masters thanthe Athenians, yet the fact of being a colonyremains. What choices do the weak have, bu t toalign themselves with the powerful? On this lineof reasoning, the Melians will have justice throughthe Lacedaemonians or the Athenians, but i t willbe more or less the same justice (as a colony).


Linking Virtue and JusticeThe conversation continues with the Meliansquestioning the wisdom of this course of actionfor the Athenians. In responding, the Athenianspoint out that their subjects think of themselves

as equal to one another, that they seek to colonizethe Melians for security purposes, and that theyrecognize it is the liberty of other neutrals thatkeeps them (the neutrals) from attacking orrebelling against the Athenians. Clearly in theselines the Athenians recognize many aspects of justrule: the equality of subjects, the need for security,and the value of liberty in keeping the peace.

The Melians, still threatening the Athenians,then assert it would indicate "great baseness andcowardice" if they who were still free did not doeverything in their power to resist submitting totheir yoke. The Melian elite continue to cling totheir ideals. They keep insisting to the Atheniansthat they have hope in the gods, and faith in thefact they are the just fighting the unjust. Theirinsistence supports the theme the Melian elite arebeing unjust by seeking to protect and strengthentheir honor.

The Athenians press reality, noting that it is a lawof nature that men rule when they can, and thatthe Melians would themselves seek to rule if theywere strong. The Athenians were not the first torespond to this law, nor will they be the last. They

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John Lunstroth pOint out that hope is slim protection, and it wouldnot be dishonorable to "submit to the greatest cityin Hellas, when it makes... the moderate offer ofbecoming its t ributary ally, without ceasing to enjoy[the MeHan] country." Here the Athenians appealto natural law also, but it is the law of the strong.They then describe their offer of surrender in whatappears to be generous terms; certainly terms thatrational men would strongly consider.

But the MeHans preferred to put their trust infortune, and soon they were under siege. Withina year, in retaliation for MeHan resistance againstthe surrounding Athenian forces, and with the aidof MeHan traitors, Athens slaughtered all the Menanmales, made slaves of the women and children, andpopulated the city with its colonists.61

The MeHan Dialogue has many lessons. The storyillustrates the vital importance of the negotiatorsthemselves when states deliberate in the absenceof clear international law. We see fairness beingcreated (and uncreated) as the Melians andAthenians negotiate. The customary internationalnorms are entirely present in the minds of thenegotiators, but it is a combination of virtue,power and intelligence that ultimately determinesthe amount of suffering (injustice) that will result.61 WAR, supra note 1, at 273.

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When one initially hears the story, and reads thefamous statement of the Athenian generals, onethinks that the powerful will simply use theirpower without consideration of the consequences.But, in fact the Athenian generals reveal a greatersense of justice than the MeHan elite. They are wellaware of the importance of keeping their citizensand involuntary subjects relatively free and happy;otherwise the citizens cause problems for the statein the form of rebellions and war. In a sense, whatthe Athenians offer to the MeHans is an offer toswitch allegiance from Sparta to Athens. If indeedAthens is the strongest ruler, then there is somemerit in making the switch.62 Perhaps Athenianrule would be harsher than Lacedaemonian, butit would certainly be more secure and better inthe short term for the citizens. The hubris of theMelian elite plays a decisive role in the outcome.They hold to honor, and reveal a tragic inflexibilityin their judgment. The law to which they clingbecomes unjust because it leads to defeat.

The final lesson is that justice as law or fairnessresides in the hearts of man. I t was individualMelians who recognized and asserted natural law,bu t imprudently. That is why Aristotle identifiesjustice as a virtue of character, and justice as thewhole of virtue. A decent person, one who can62 Athens lost the war. Powell, ATHENS, supra note I, at 198.

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John Lunstrothidentify and be flexible in attaining justice, has allof the virtues developed in their character. This isa very high standard that requires train ing from anearly age, and self-imposed discipline later in life.It is no t normally found in the young. Many humanrights may exist on paper, but they are identifiedand enforced by virtuous people.

II. HUMAN RIGHTSToday we have a system of international justiceestablishedby agreement of most states of the world

called the United Nations (UN) system. It consistsof a fundamental or constitutional treaty, the UNCharter, and many subsidiary treaties, some ofwhich are updated or recorded versions of longstanding treaties and understandings (custom),and some of which embody what are perceived asnew ideas, such as human rights.

The UN Human Rights system is embodied inthe International Bill of Human Rights (IBHR).63

63 The International Bill of Human Rights consists of the Universal Declarationof Human Rights, the International Covenant on Civil and Political Rights(ICCPR), The International Covenant on Economic, Social and Cultural Rights(ICESCR), the Optional Protocol to the ICCPR, the Second Optional Protocol tothe ICCPR aiming at the abolition of the death penalty, and the United Nations,Economic and Social Council, Siracusa Principles on the Limitation andDerogation Provisions in the ICCPR, all of which can be found on the internet at

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For citizens of states party to the treaties itestablishes a system of protections for indiViduals,and to a lesser degree groups, from the power ofthe Signatory state(s). As a system it relies for themanifestation or implementation of rights on thestructure of a state.64

Although the specificity with which human rightsare articulated in the IBHRis new, the idea ofhumanrights and the requirement of a state structure toimplement them is not new. Johannes Morsink, inhis analysis of the Universal Declaration of HumanRights65 traces the idea of rights found in the IBHR toEnlightenment ideas stripped of references to Godor Nature as their source,66 but it is clear the ideaof rights has ancient roots in many civilizations.67We can see in the Melian Dialogue and theAristotelian commentary evidence of individual

human rights as customary international law,the UNIVERSITY OF MiNNEsoTA HUMAN RIGHTS LmRARY, available at http://www1.umn.edulhumanrts, last viewed May, 4 2006.64 See Louis Henkin, THE AGE OF RIGms I-50 (1990).65 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc.A/810 at 71 (1948).66 Johannes Morsink, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: OruGlNS,DRAFTING AND INTENT 283, 284 (1999).67 Paul Gordon Lauren, THE EVOLUTION OF INTERNATIONAL HUMAN RIGl:ITs: VISIONSSEEN 4-16 (2003).

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evidence of the need for a state in order toimplement or manifest the rights, and evidenceof a comprehensive idea of rights as a theory ofhuman flourishing and the state in ancient Greekthought. That rights have their origin much earlierthan that is well understood and demonstrate inthis analysis.

The Melian elite argued against slavery byclaiming their rights as a free people who should notbe enslaved. They argued that this justice or rightapplies equally to the Athenians. This suggests thatthe idea of the right to be free from slavery alreadyexisted as a norm of customary international law,although clearly it was conditionaL The victor ofa war could take slaves in some circumstances,yet as the Melians' pointed out, to enslave afree people is fundamentally unjust. Similarly,in contemporary international jurisprudence,the right to life is enshrined in the InternationalCovenant on Civil and Political Rights, yet thelaw of war allows legal killing. The conditionality of a norm does not undermine its reality, ordestroy its moral and rhetorical value. The Meliansand Athenians manipulated conditional normsthous-ands of years ago much as politicians dotoday, and Aristotle's ethical and political writingsreflect and elaborate attitudes towards enslavementby force that both the Melians and the Atheniansalready under-stood. To enslave those who should

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Linking Virtue and Justicebe free has been seen as unjust, and a violation ofnatural law for a very long time. The concepts ofhuman rights and customary international law areneither new nor surprising.

Both the Melians and the Athenians also seemto have understood the importance of the state indefining and implementing universal human rights.Most slavery takes place in the context of statesanctioned poliCies and most freedom survives inpart because of state protection. The Melians knewthis, and the world is not very different today.Rights are supported by the international law,and international law transcends state boundariesto apply equally to all people, but the state mustimplement or acknowledge such rights for rights tobe enjoyed in fact.

Aristotle's description of positive law is nodifferent than ours today. That is, he distinguishesnatural and positive law in more or less th e sameway that we do today, although the philosophicalunderpinnings maybe different.68Aristotle describesa comprehensive biolOgical, ethical, and politicalphilosophy that includes something I would argueis very similar to today's "human rights." Aristotle(i8 For examples of how Aristotle's thought on law has influenced contemporarylegal and political theory, see ST . THOMAS AQUINAS ON POLITICS AND ETHICS (paulE. Sigmund, tr. & ed., 1988); John Finnis, NATURAL LA w AND NATURAL RIOlITS(1980).

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John Lunstroth recognized the pro-found importance of autonomyin a social organism. He may have balanced theinterests of the individual and the state differentlythan we do (his system allowed slavery), bu t hisbelief that the highest end of states and theirleaders is to provide the conditions for life toflourish, is mirrored, albeit in somewhat reducedform, in our human rights ideals. Amartya Sen andMartha Nussbaum have reintroduced Aristoteliannorms through their advocacy for "development asfreedom" and "capabilities."69

Th e commonalities between what we understandas rights today and what the Greeks of Thucydides'and Aristotle's time understood as natural laware far from trivial and suggest that Aristotle wasright to pursue a comprehensive system thatwould link individual biological man with ethicalideals, and the community as state, for this offersan explanation of why the fundamental tensionsbetween individuals and communities organized asstates are the same today as they were some 2,500years ago. There is no need to invoke Nature orGod to explain these continuities, which anyonecan find through self-examination and sensitivityto the patterns that define our lives.69 See e.g., THE QuALITY OF LIFE (WIDER STIJDlES IN DEvELOPMENT EcoNOMICS)(Martha Nussbaum & Amartya Sen, eds., 1993); Amartya Sen, DEVELOPMENTAS FREEDOM (1999); Martha Nussbaum, WOMEN AND HUMAN DEVELOPMENT: THECAPABll.lTIES APPROACH (2000).

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III. THEORIES OF JUSTICE AND WORLDCOMMUNITY

Aristotle has given us a comprehensive theory ofjustice that can be applied in any circumstance,although as in all cases in which there is no positivelaw, the means and ends he provides require anelement of interpretation. But where there is law,either constitutional or law by agreement, such asin a treaty, then reaching a consensus should notbe as difficult. One way to think of justice, in thiscontextand consistentwith Aristotle's idea of justiceas constitution and law, is that if we find a systemof justice then we have also found a state. This maynot be a state that has been formally constituted inall its details, but rather the real sense of a groupof people that they share a common location forthe purposes of preventing mutual wrongdoing,exchanging goods, and for the benefit of individualsand families, so that every citizens of the state canlive a self-sufficient and comple te life.70

There are now thousands of extantand active treaties covering the entireglobe with an intricate web of duties andobligations, solving the thousands of practicalday-to-day problems of global society. This webof treaties is a system of justice , revolVing around70 POL, at 1280b39-1281al.

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central treaties that have some characteristicsof constitutions: the Charter of the United Nations, the IBHR, the World Trade Organizationdocuments, the World Health Organization, andso on. 71 Although we have trouble with particularproblems of justice, these difficulties are notconceptual, bu t are practical. Decent men andwomen the world over would insist on the rightof the poor to be assisted by their wealthierneighbors. There would be disagreement about themechanisms and rules through which to manifestthis right/duty, but not on the principle or thehuman right that hungry people should be fedand that hungry people have a claim on a virtuoussociety to the conditions in and with which toflourish. I t may even be, that as Aristotle, Marx,and many others recognized, injustice for someis part of nature, and inescapable, structural.72 I t

11 See Henkin, Elements of Constitutionalism, supra note 64.12 See e.g., Nussbaum inEsSAYS ON A1uSTOTLE, supra note 26; KarlMarx, Capital,v. 1, in THE MARx-ENGELS READER 429-431 (Robert Tucker, ed., 1978). LAW,JUSTICE, AND POWER: BETWEEN REAsoN AND WIl.L (Sinkwan Cheng, tr., 2004).For this observation by social epidemiologists, see RG. Link and J. Phelan,Fundamental Sources of Health Inequities, in POLICY CHALLENGES IN MODERNHEALm CARE (ed. D. Mechanic, L.R Rogut, D.C. Colby, J.R. Knickmam,2005); J.W. Lynch, G.D. Smith, G.A. Kaplan, 1.S. House, Income Inequalityand Mortality: Importance to Health of Individual Income, PsychosocialEnvironment, or Material Conditions, 320 BRITISH MED. J. 1200 (2000); M.Mannot, The influence of income on health: Views of an epidemiologist, 21HEALTH AFFAIRS 31 (2002); Richard Wilkinson, Putting It All Together, inSOCIAL DETERMINANTS OF HEALTH (ed. Michael Mannot and Richard Wilkinson,1999); J.W. Lynch, G.D. Smith, G.A. Kaplan, I.S. House, Income Inequality

Linking Virtue and Justiceshould be recognized that human decency is alsonatural and structural.

We already have a world government formany purposes, and the natural framework foreven stronger international rules, in increasingcomplex and comprehensive institutions of theUnited Nations system. Naming and blaming,as practiced both by the Melians and by HumanRights Watch, is still a primary way that problemsof justice are addressed. Moral degradation maystill be the primary effect of injustice (with regardto th e perpetrator), but the norms are articulatedand decent people are keeping their eyes open.Inter anna silent leges was never a convincingargument.

International law should be obeyed, no t onlybecause it is just to obey the law, bu t because i tcauses degradation of character not to obey thelaw. The important dispute is about justice. Thereare strong disagreements about the nature ofinternational law, bu t the widespread insistencethat international law ought to be obeyed assumesthat international law exists, whatever i t mayrequire in practice.73 That the question must beand Mortality: Importance to Health of Individual Income, PsychosocialEnvironment, or Material Conditions, 320 BRITISH MED. J. 1200 (2000).13 I refer to the Austinian arguments made by some members of the Federalist

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asked is itself evidence of the dispute about thecharacter of international law.

Human beings, as individuals and members ofvarious social entities, seek justice in their affairs.Dependence on law as a trope for justice is thenorm, bu t justice is too easily reduced to law,and thus when a law is disputed, the conclusionis drawn that justice is also disputed, when sucha conclusion is no t always warranted. This line ofconfusion is reinforced by scholarly speculationabout the relationship between morality and law.Morality and justice are conflated and perceivedto be subjective, uncertain, and subject toindividual bias. This need no t be the case. A justperson is capable of discerning how justice canbe achieved in circumstances in which the law isabsent or disputed. Often the argument could havebeen made in terms of morality or right, bu t thelanguage is not as important as the solutions to theproblems. Realpolitick is no t necessarily the sameas unvarnished self-interest. The Athenians' offerto the Melians may have been just, in the contextof Athenian politics. Striving to obey the law willnever solve all of ou r legal problems.Society in the United States, that international law does not exist because thereis no means of enforcement. This argument obviously ignores the efficienciesof private international law and much public international law, without whichglobal society could no t function on a day to day basis. Two examples out ofthousands are financial markets and the postal system.

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Truth versus Justice: A Tale of Two Cities? Tom Syring Boston University

A struggle was evidently in his face;A struggle with that occasional lookWhich had a tendency in itto dark doubt and dread.1

Most violent conflicts and human rights abusesnow take place within state boundaries, amongfellow citizens.2 Thus, conflict-tom societiesprovide the most important battleground in thestruggle to protect human rights.Measures taken to protect human rights may

I Charles Dickens, A Tale a/Two Cities, London: Penguin 1859/1994, p. 138.2 An earlier version of parts of this article, focusing on the general featuresof truth commissions and courts of law with respect to reconciliation in postconflict situations (and less on the legal and philosophical reasoning underlyingthe choice of institution, which the current article sets o ut to contemplate) hadbeen submitted to the conference on "Pathways to Reconciliation and GlobalHuman Rights," held in Sarajevo, Bosnia and Herzegovina, August 16th-19th,2005. It has now been published as "Coping with Peace: Truth Commissions,Courts of Law, and the Pursuit of Justice," pp. 33-44 in: Local-Global: Studiesin Community Sustainability, VoL 2 (2006).


Lunstroth Linking Virtue and Justice ILT

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