Social Justice versus Western Justice.
A synonymous term in this lexicon is equality. This equality goes beyond what the ancient Greeks already articulated--formal equality, political and legal. According to this articulation, all the citizens of a polity are equal as citizens: no one is more or less a citizen than anyone else. And all citizens are equal before the law: the court shows neither deference toward the mighty nor partiality for the lowly. In contrast, again, though a metric is again not evident, the equality pursued by democratic socialism is general. Any inequality that is not explicitly chosen by the person is identical to dominance and subordination by others and is thus a moral outrage. Wherever the egalitarian may focus his attention at the moment, there is inequality to be found and therefore oppression to be eradicated. Wherever persons may differ--whether in social status, economic class, political power, educational attainment, sexual persuasion, race, ethnicity, gender, citizenship, maternity--there is a potential source of egalitarian passion. All the philosophers prestigious for the democratic socialist agree: though equality is unprovable, redistribution of resources into equality for all is the principal aim of government (Kekes 2013). The great moral task is to reorganize all societies into regimes wherein all are "free and equal"--that is, wherein social justice prevails. The opponents of redistribution are greedy, oppressive, and even fascistic, while the proponents are compassionate.
The burden of this article is threefold: to refute the democratic socialist version of equality, to critique its version of justice, and to adduce a tenable sense of "social justice."
It is easy to refute egalitarianism, even in its own terms. Equality is entirely compatible with evil. All may be free and equal--and evil. Equality by itself is no guarantee of justice or of any other virtue. Insofar as equality and social justice are identical, this argument also refutes social justice.
A critique is a delineation of limits. This critique aims to show how justice and equality interrelate, how far they imbricate. A critique that aims to penetrate to the foundations is philosophical, and so this critique will be. Because the concept of social justice arose in Western civilization, the strategy here will be ressourcement--that is, a recall of the sources of the Western practice and conception of justice so that the place of social justice or equality in it may be discerned.
Western civilization inherited both the practice and the concept of justice from the ancient Greeks, the ancient Hebrews, and the Romans. For all three, human justice had been only the human alignment with cosmic justice. The preconceptual awareness of this cosmic justice is the foundation for the later concept of justice as a human endeavor.
As in all early civilizations, the Greeks recognized an all-encompassing Order, a Cosmos, a Whole, in which humanity only participates. Humankind discerned this Order prior to their differentiation of it into divinity and world, society and individual (Voegelin 1956-57). Although chaos keeps threatening to break in, the Cosmos is an order wherein all things are measured out as what and how they are. Insofar as everything keeps within its own bounds and does not trespass upon others, this Order is called, by the ancient Greeks, dike, "measuring-out," "balancing-out"; it is the allotting to each its own, the apportioning, no more and no less. And insofar as the Order is the guide for human conduct, it is called, again, dike, "justice," "righteousness" (Greene  1963; Havelock 1978; Voegelin 1956-57). In other civilizations, this originary Order and hence standard for human conduct come to expression in their basic words--for example, ma'at in Egyptian, kittu in Akkadian, ash a in Avestan, art a in Old Persian, 'adl in Arabic, rita in Sanskrit, dao (tao) in Chinese, do in Japanese, sydyk in Phoenician, and tsadaq in Hebrew (Carr and Mahalingam 1997; Assmann 2000; Snell 2000). However the Order be named, discernment of it is common to humankind; likewise is the acceptance of it as the measure for man.
The Hebrews inherited the idea from their Near Eastern neighbors and developed it in a distinctive way. Gradually, as the god YHWH separated from the mere cosmos and at once disputed and finally nihilated all the other gods, the cosmic tsadaq became "the tsadaq of YHWH." The Septuagent rendered tsadaq as dikaiosyne, whence "the righteousness/justice of YHWH." It is YHWH who restores righteousness to the world order after its violation by man, and man may again become righteous by attunement to the laws of YHWH (Schmid 1968; Knight 1985). Paul of Tarsus adds that ordinary humans can do nothing to restore the dikaidsyne of YHWH; only "the Messiah" could effect the restoration. The Latin Fathers of the Church later rendered dikaiosyne as iustitia, "justice."
Thus, when the Greek and Hebrew traditions intersected in the Roman Empire, the Hebrew and Christian undertones of the term dikaiosyne gave the quest for the Greek virtue of justice a religious resonance--a matter of ultimate concern.
Chaos--the wild and the waste, Leviathan and Hydra, monster and desolation--always threatens to return. The struggle against it is perpetual. However, if anything should indeed violate its bounds, if there should be a lapse into disorder anywhere, order will eventually prevail. This is so, too, for human action; the just fate will be measured out, necessarily though unpredictably, to anyone who violates the true order--even if this fate be delayed to postorganic existence.
Every member of the sociocultural order is to act within bounds, not to grasp for more than his allotment, to allot to others whatever is proper to them. Man, in order to fulfill his destiny within the great Order, must correspond to it; he must respond to its exigencies. To do so is to live in reality, to live according to the truth, to live righteously. To refuse to do so is, in Greek, hubris (presumptuousness, arrogance, insolence, aggressive pride, wantonness, outrage)--die pretense that the measure is reducible to oneself. To act disorderly is to live a lie, to enact a fantasy, to destroy one's own reality.
In the evolutionary paradigm, orderly conduct is, at the minimum, that behavior that allows the culture to maintain itself as a distinctive unit and, at best, to flourish. Every culture has a word for such behavior: right, straight, just (Buck  1988, 16.73, 21.11-12).
But a further distinction is apposite. For ancient man, the just and the lawful are the same; the words for the two in all languages are the same (e.g., L. ius, F. droit, G. Recht). It takes considerable experience and reflection to overcome this identity. Originally, the law (Gr. nomos) is both "the normal/customary" (its social function) and "the normative/obligatory" (its moral import). The law dictates the right (Gr. dikaios; L. iustus, rectus; F. juste, droit; G. recht, gerecht) conduct. The ancient Greeks were able to shatter this conceptual density. Only on condition that one can distinguish between the law and the just can one then conceive abstractly justice as a virtue.
Among the Greeks, it was Plato and especially Aristotle who forged the concept of justice. A collection of lectures summarizes it: the Nicomachean Ethics, book 5 (Aristotle  1963). Here Aristotle, heir to the poets, dramatists, historians, and Plato, theorized the laws and the practices of the Greeks (Vinogradoff 1922). The concept that he forged became the Roman one and eventually the Western. Aristode took for granted three civilizational achievements.
First is the domestication of the lex talionis, the law of retaliation ("Do unto others the wrong that they have done unto you," "Like for like," "An eye for an eye," "Get even"). Like the later Hebrews, the Greeks had already transcended this law, as witnessed in the Oresteia of Aeschylus. Aristotle is explicit ( 1963, 5.5.1132b21-25). The lex talionishad been the basic moral principle of ancient kinship societies and their attempt to maintain cosmic balance.
Second is die realization that "justice" is not a societal structure or condition, which is always a datum; any just or unjust social condition is an institution of the acts of individuals, hence posterior to just or unjust conduct. If no one acts justly or unjustly, there is no just or unjust social structure. Justice, as Socrates realized, is, before anything else, an interior disposition to act justly and then the just act (dramatized in the Republic [Plato 2013, 580D-592B, 611A-613B). A social, political, or economic configuration may be just or unjust only insofar as it is the deliberate consequent of voluntary behavior.
Third is the acceptance of the equality of fellow citizens of the polity. For the classical Greeks, these fellow citizens were the adult, free males of one's own clan, tribe, or polis. This equality is not, of course, an equality of ability, intelligence, temperament, ambition, attraction, interests, possessions, merit, moral worth, luck, or "life chances" in general. Indeed, everyone has relations in which he is special, transequal, to others; favoritism is universal (Asma 2013). Later, once the uniqueness of persons is recognized in Christianity, their simple equality becomes morally impossible, for the unique is precisely that which has no equal. Uniqueness precludes equality. Hence, persons may be equal only with respect to something. Persons as citizens are equal as citizens and, as such, enjoy equality under the law. Gradually, of course, this political and legal equality, through the mediation of Christianity, was extended beyond males of a certain group to others--for example, women.
Aristotle distinguishes, as does Plato, between two genera of dikaidsyne: the general sense, designating the whole of human virtue, "righteousness" ( 1963, 5.1), and the strict sense, "justice" (5.2-5). In both senses, dikaiosyne concerns interactions between and among "equals"--that is, free adult males in the polity. The interaction between them and their nonequals (women, children, slaves, aliens) is governed by justice in a looser, metaphoric sense (5.6).
In the strict sense, justice falls into three species:
1. Dispensational, dispensive, (ad)ministrative, allocative, "distributive" (dianemetikon, L. distributiva) (Aristotle  1963, 5.3);
2. Redressive, rectificative, remedial, restorative, restitutional (diorthotikon), or amendatory, conducive to improvement, "corrective" (epanorthotikon) (5.4); and
3. Transactional, commercial, economic (emporikon), or "reciprocative" (antipeponthotikon) (5.5)
The medieval thinkers assimilated the third into the second and then called the resultant species "commutative" (L. commutativa). Confusion may arise but is avoidable.
The first type of justice is distributive or allocative justice.
It concerns how the social whole (the polity), represented by its stewards (statesmen), distributes or divides the benefits--possessions, control, and esteem--that depend on one's fellow men and especially on their wealth (accruing to the public treasury by taxes, tribute, tolls, gifts, or slavery). Examples of what can be allocated are: safety/security/protection (the sine qua non of government, public good, including the redoubt and the walls); money from the treasury for public goods (e.g., the marketplace, the temple, the roads); but especially times("honor," recognition, esteem, honorary post and the honorarium attached thereto). Because the first two kinds of benefit were obvious, the major issue was the third. Examples of honorary positions are: general, architect, minister, theatrical producer, jurist, disabled veteran, priest, flutist. The major problem was, as always, "the lust for more" (pleonexia, insatiableness, badly rendered as "greed")--the desire of the vulgar (phaulous) to get as much as they can from the public treasury, regardless of desert (Balot 2001).
The statesman, through whom all the members of the polity act, is to effect the distribution/allocation not according to the principle of simple equality but according to merit/desert/worth (axis). Merit is determined according to excellence in performance and contribution to the purpose of the polity (moral excellence). "The polis is the partnership [koinonia] of the clans and the villages in a perfective and self-sufficient life, which, as said, is the happy and noble life; the political community [koinonia] must therefore be deemed to exist for the sake of noble actions. Hence, those who contribute most to an association [koinonia] of this kind have a greater share in it"--that is, should receive the greater reward (Aristotle 1944, 3.9.1280b2-1281a6).
Hence, the definition of distributive justice is clear: "All agree that justice in distributions [from the common weal] must be based on desert [axia] of some sort.... Justice is therefore a certain proportion/analogy [analogia], ... proportion being the equality of ratios, involving at least four terms" (Aristotle  1963, 5.3.1131a29-32). The terms are, in the simplest case, the two persons between whom a comparison is made and the two shares/portions between which a comparison is made. "The ratio between the shares will be the same as the ratio between the persons" (5.3.113la22). What is equivalent (isotes) is neither the persons nor the portions but the two ratios. The dictum here is: "To each according to his merit" (5.3.1131a24).
The abstract formula for justice is the geometric proportion/analogy:
A:C :: B:D
Person A by his merit is due some degree of honor C in the same proportion as person B by his merit is due a different degree of honor D. A is to C as B is to D; the ratios between A and C and between B and D are equal. "Thus the just also involves four terms at least, and the ratio between the first pair of terms is the same as that between the second pair" (Aristotle  1963, 5.3.1131b5-6). The general who saves the polis deserves a greater portion than the hoplite under him; the disabled veteran deserves support, whereas the lazy bum deserves shame.
This proportionate share is neither too much nor too little; it is the mean between the erroneous extremes. "The principle of distributive justice, therefore, is the conjunction of the first term of a proportion with the third and of the second with the fourth; and the just in this sense is a mean between two extremes that are disproportionate, since the proportionate is a mean, and the just is the proportionate" (Aristode  1963, 5.3.1131 b8-12).
The second species of justice is corrective or redressive.
It concerns how one private party interacts with another regarding a single issue, whatever their status otherwise. Once the interaction is complete, one side may claim to have lost something by the action of the other, who has thereby gained something. Examples are defrauding, injuring, and slandering. The terms gain and loss come from voluntary commercial exchange but are here used analogously. Whatever is gained or lost is not necessarily the same matter (e.g., one may win office by the destruction of another's reputation). Justice here is righting the wrong, restoring "wholeness" to the victim, reestablishing the original condition, redressing a grievance. It is more than simply vengeance according to the lex talionis; under the law of retribution, after all, justice would be the equality of condition (e.g., two eyes equally blind).
Once a legal action is brought, the two parties are equal under the law. "The law looks only at the nature of the damage, treating the parties as equal, and merely asking whether one has done and the other has suffered injustice, whether one has inflicted and the other has sustained damage. Hence, since the unjust is here the unequal, the judge endeavors to restore equilibrium" (Aristotle  1963, 5.4.1132a3-7). In the model case (e.g., fraud), the judge, who is "ensouled justice" (1132a21), takes away the wrongful gain of the one and restores it or a substitute to the other. The justice here treats the litigants as equal under the law; no one is more or less a litigant than anyone else; in other words, the judge is impartial, an umpire. This is what "fairness" means--the same rules for all. "Fairness," already recognizable by the pubertal mind, is known universally.
The embodied justice makes the two sides "equal" again. Justice is not a geometric proportion but rather an "arithmetic analogy [analogia]" (Aristotle  1963, 5.4.1132al-2). "The judge tries to make them equal by the penalty/loss that he imposes, taking away the gain" (1132a 8-10). The punishment is to be commensurate to the advantage (beidos) that the convicted had intended to gain by his wrong. A penalty is not revenge, "getting even." Justice is incremental addition and subtraction, an arithmetically analogous adjustment, in order to make both parties' new condition equivalent to the original one. This equivalence is not an equality of condition, for the original condition was a condition of difference (which the criminal sought to change).
"Thus, die equal [to the original condition] occupies the middle position between the more and die less. But gain and loss are a more and a less, respectively, in opposite ways; more good and less evil are gain, and the reverse is loss. The median between them, as we saw, is the equal--which, we assert, is just. The just as a corrective is, therefore, a mean between loss and gain" (Aristode  1963, 5.4.1132al4-19). The relevant equality/equivalence/ comparability (ison) here has nothing to do with distribution.
Clearly, a trial, therefore redressive justice, presupposes an allegation of injustice. Hence, a standard of justice must already be operative, governing the interrelations of one legal individual to another. Aristotle has no particular term for this sense of justice. The Christian theologians of the West gave it the name commutativus, "commutative." A commutatio is an exchange or interchange.
However, an unfortunate confusion arises here. The medievals assimilated Aristotle's third species of justice into this second one--understandably, because his third species, like this one, governs the interrelations of private parties, albeit commercial ones. They then specified a different third species of justice: so-called legal or general justice, which governs the relations of the individual to the social whole. As the opposite of distributive justice, this general justice may be called "contributive" justice. It concerns such matters as military and other public service, taxation, and loyalty. The individual must render to the whole its due.
In reverse, then, the government, acting on behalf of the whole, must not require of the individual more than that due; such a requirement would be unjust, an instance of pleonexia (e.g., confiscatory taxation). This kind of justice, proper to the governors, deserves its own name--perhaps "constraintive justice." For those who wield governance because they exercise legitimate violence or the threat thereof, they are especially dangerous to their fellow men and therefore need to be constrained. Government, like fire, is a good servant but a terrible master.
The third species of justice in Aristotle is the commercial or economic.
It concerns how traders exchange goods or services to their mutual benefit. The classical Greek took for granted that citizens and others, in seeking to live together, do not abide by the lex talionis but rather "repay good with good." And it is precisely this "exchange," this mutual contribution, "that binds them together" (Aristotie  1963, 5.5.1133a2). Prior to exchange, the earliest human bands, like the primates, engaged in violent competition and even warfare over scarce resources (which included the females) (Gat 2006, 3-322). Once the inequality of resources was accepted and the transformation of them into unequal wealth was normal, peaceful exchange could arise. "But in associations [koinonioi] of exchange, the just is what binds them together: reciprocity according to proportion/analogy [analogia], not according to equality" (Aristotle  1963, 5.51132b2-4). Justice here is "reciprocal proportion/analogy [antipeponthos analogos]" or proportionate/analogous reciprocity.
How is proportionate reciprocity to be determined? Well, "nothing prevents the product of one from being worth more than the product of the other," and for the exchange to take place, the products (or services) must be weighed on some scale ("equalized") (Aristotle  1963, 5.5.1133a12-13). How much of the one product is worth how much of the other? What quality of the physician's care is worth which quantity of the shoemaker's boot? This "equivalence" is established by mutual agreement. "Thus, if analogous equivalence [isos be worked out first [by the traders], and then reciprocation takes place," justice shall have occurred; "but if dais is not done, the exchange is not equal, and the association does not continue" (1133a10-11). If the parties agree to an exchange, they are to that extent just toward each other.
The abstract formula for analogous reciprocity is an inverse proportion. Less of a product or service worth more gets in exchange more of a product worth less. The more and less are, again, established by mutual agreement. Of course, evaluations by the traders will differ according to the different markets (supply and demand) in space and time; hence, the concretion of justice will also differ in space and time.
Given the species of justice, the place of equality in the pursuit of justice is clear. Justice is not equality of condition--which, given uniqueness, is impossible in any case. Justice is to render to each what is due to him, whether in the distributive, redressive, or commercial sense. It is to measure out according to proportion, analogy, and ratio. In distributive justice, equality contracts into the equality of ratios. In redressive justice, equality is proper to the actions of "ensouled justice" (the judge): before the trial, he grants the parties equal status to bring or to defend a case; during the trial, he is neutral between them; and after a conviction, he aims to render the victim whole again. In commercial justice, equality means the condition of mutual freedom in exchange, of which no third party may change the parameters.
Given concurrence on the definition of justice and on its concretion in law, a problem arises (Aristotle  1963, 5.10). Norms are formally universal propositions. But persons and cases, although typical, are unique. Hence, the spoudaios (morally mature person) realizes that the generality of the norm has to be adjusted for particular cases. The general form of the law may become formal rigidity, and justice requires an adjustment of the formality to the particular circumstance. Plato had already articulated the problem (Plato 1925, 294A). As Aristode says, "Law is always a general statement, yet there are cases that it is not possible to cover in a general statement.... This does not make it a wrong law; for the error lay not in the law or the law-giver, but arises in the nature of the case" ( 1963, 5.10.1137b13-20).
The spoudaios discerns the degrees of responsibility and the other variables that make the case unique and then determines how the generality has to be "corrected" in order to effect justice. "This is the essence of the equitable [epieikes]: it is a corrective of law where law is defective because of its generality" (Aristotle  1963, 5.10.1137b32-33). Equity (epieikeia), then, "is justice of a special sort" (1138a3). Aristotle theorized the Greek practice (Vinogradoff 1922, 63-69). Today, however, egalitarians seize the term equity when they cannot make the term equality sound plausible.
The Aristotelian definitions became normative in the West. Cicero takes for granted that justice is "to grant to one his own [suum cuique reddere]" ( 1977, 3.25;  1999, 5.67). Roman law, as in Justinian's collections, understood justice in this way: suum cuique tribuere (Justinian 2000,1.1). The classical Western definition of justice is suum cuique reddere/tribuere, "to render/to grant to one his own." Thomas Aquinas put it, "reddere unicuique quod suum est," to render to each what is his (1975, q. 57, a. 4, and q. 58, a. 1).
In summary, justice is the disposition suum cuique reddere mutatis mutandis, "to grant to each his due," with the necessary adjustments having been made. Equality is subordinate to justice and takes on concretion according to the species of justice.
Egalitarianism is the ideology of equality--that is, the principle that equality of condition for all would be social justice, and vice versa. The relevant condition is various, according to the ideologue's current interest.
Beyond its roles in justice, what could "equality" be? Equality is the abstract exchangeability or substitutability of one for another, the irrelevance of the difference between the one and its other, the suppression of everything that makes the one different from the other. When unique persons find that equality may serve the interests of inherently unequal persons, they may adopt the principle of equality. The egalitarian, however, deems it to be the fundamental principle of human relations and judgment. Outside the sphere of its utility, however, the principle of equality leads to absurdity: aesthetic relativism, either moral relativism or the lex talionis, emotional indifference, economic stasis, and a loveless life.
Human beings are each unique. To be unique is to be individual to such a degree that one is irreplaceable, unsubstitutable, nonexchangeable. Uniqueness excludes equality. The discovery, protection, and promotion of the uniqueness of the person is one of the great achievements of Western civilization (Chenu 1969; Morris 1972; Burridge 1979; Dumont 1986, 23-112, 279-80; Gurewich 1995; Siedentop 2014). Because the principle of equality abstracts from that by which one is different from another, it ignores the unique self. Therefore, any morality that takes equality as its basic guideline is not a morality for humans. The ideal of social justice as equality is unhuman, not to say inhumane.
But what about the "self-evident" truth that "all men are created equal"? How can unique persons be equal to one another? They can be equal in a functional way: with respect to some condition, some "third." For example, the workers may earn equivalent wages; the teams play under rules that are the same for both; the mother divides the pie equally among her children; each citizen has one vote. Unique persons may be considered in relationship to one another and reduced to an equal condition in function of one another: how one is treated is a function of how the other is treated. Equality does not rise to the level of uniqueness. In the Declaration of Independence, "all men are created equal" in the sense that all "are endowed by their Creator with certain unalienable rights," which governments are created "to secure." Men are equal with respect to certain rights.
The limitation of functional relations is evident. The criminal reduces his victim to a mere function of his impulse; the socialist reduces his current "oppressed class" to a mere function of his self-definition as the "liberator" of the oppressed. Functional relations may or may not subserve uniqueness.
The only ways in which large sectors of humankind have arrived at a rough equality of condition are the Four Horsemen of Leveling: massive mobilization warfare, transformative revolution, state collapse, and catastrophic plague. In other words, by a destruction of the fortunes of the rich (Scheidel 2017). Social justice--that is, general equality--is massive misery. But it is the cocaine of the democratic socialist.
Beyond arbitrary stipulation, however, can there be any tenable sense of "social justice"? Beyond vacuity, what can "social" add to "justice"? Three possibilities obtain.
First, it may mean what it did in its original provenance, Catholic "social thought" and specifically papal encyclicals (Novak 1993, 62-88; Zicba 2013, 7-60). Here it means the congeries of political institutions and laws that encourage social peace and, vaguely, economic welfare--but according to the principle of subsidiarity.
Second, it could mean what Plato discerned of the well-ordered polity. That polity has (three) parts: the leaders/guardians; the guardians (1) auxiliaries, naturally robust and energetic; and the common workers. If each does its own function well, then the whole is just (diakaios) (2013, 427D-434D). In complex societies, the socially just would be a regime of liberty wherein each person may develop himself as far as his finite condition will allow: the "pursuit of happiness."
Third, the term social justice may name the disposition and action to associate with others in civil society in order to advance the welfare of those who in the circumstances cannot by themselves achieve a welfare contributive to the welfare of the whole (Novak 1993, 77-86). This association requires vigilance, discernment, judgment, prudence, initiative, trust, perseverance. It enlarges social networks but restricts politics. Its variations are indefinite: siblings organize to care for their superannuated parent; three mothers in a church cooperate to homeschool their children; the wealthy fund a municipal orchestra. There is nothing coercive about this "social justice."
Tenable "social justice" is pluralistic democratic capitalism.
Daniel Guerriere is professor emeritus of philosophy at California State University at Long Beach.
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|Date:||Jun 22, 2019|
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