The Corrective

Chapter 7

The Corrective, which arises in voluntary as well as involuntary transactions.

This just has a different form from the aforementioned; for that which is concerned in distribution of common property is always according to the aforementioned proportion: I mean that, if the division is made out of common property, the shares will bear the same proportion to one another as the original contributions did: and the Unjust which is opposite to this Just is that which violates the proportionate.

But the Just which arises in transactions between men is an equal in a certain sense, and the Unjust an unequal, only not in the way of that proportion but of arithmetical.[12]

Because it makes no difference whether a robbery, for instance, is committed by a good man on a bad or by a bad man on a good, nor whether a good or a bad man has committed adultery: the law looks only to the difference created by the injury and treats the men as previously equal, where the one does and the other suffers injury, or the one has done and the other suffered harm.

And so this Unjust, being unequal, the judge endeavours to reduce to equality again, because really when the one party has been wounded and the other has struck him, or the one kills and the other dies, the suffering and the doing are divided into unequal shares; well, the judge tries to restore equality by penalty, thereby taking from the gain.

For these terms gain and loss are applied to these cases, though perhaps the term in some particular instance may not be strictly proper, as gain, for instance, to the man who has given a blow, and loss to him who has received it: still, when the suffering has been estimated, the one is called loss and the other gain.

And so the equal is a mean between the more and the less, which represent gain and loss in contrary ways (I mean, that the more of good and the less of evil is gain, the less of good and the more of evil is loss): between which the equal was stated to be a mean, which equal we say is Just: and so the Corrective Just must be the mean between loss and gain.

This is the reason why, upon a dispute arising, men have recourse to the judge: going to the judge is in fact going to the Just, for the judge is meant to be the personification of the Just.[13]

Men seek a judge as one in the mean, which is expressed in a name given by some to judges (μεσίδιοι, or middle-men) under the notion that if they can hit on the mean they shall hit on the Just. The Just is then surely a mean since the judge is also.

So it is the office of a judge to make things equal, and the line, as it were, having been unequally divided, he takes from the greater part that by which it exceeds the half, and adds this on to the less.

When the whole is divided into two exactly equal portions then men say they have their own, when they have gotten the equal; and the equal is a mean between the greater and the less according to arithmetical equality.

This accounts for the etymology of the term by which we in Greek express the ideas of Just and Judge; (δίκαιον quasi δίχαιον, that is in two parts, and δικάστης quasi διχάστης, he who divides into two parts).

When from one of two equal magnitudes somewhat has been taken and added to the other, this latter exceeds the former by twice that portion: if it had been merely taken from the former and not added to the latter, then the latter would have exceeded the former only by that one portion; but in the other case, the greater exceeds the mean by one, and the mean exceeds also by one that magnitude from which the portion was taken.

By this illustration, then, we obtain a rule to determine what one ought to take from him who has the greater, and what to add to him who has the less. The excess of the mean over the less must be added to the less, and the excess of the greater over the mean be taken from the greater.

Thus let there be three straight lines equal to one another. From one of them cut off a portion, and add as much to another of them. The whole line thus made will exceed the remainder of the first-named line, by twice the portion added, and will exceed the untouched line by that portion.[14] And these terms loss and gain are derived from voluntary exchange: that is to say, the having more than what was one’s own is called gaining, and the having less than one’s original stock is called losing; for instance, in buying or selling, or any other transactions which are guaranteed by law: but when the result is neither more nor less, but exactly the same as there was originally,[15] people say they have their own, and neither lose nor gain.

So then the Just we have been speaking of is a mean between loss and gain arising in involuntary transactions; that is, it is the having the same after the transaction as one had before it took place.