11、馬丁·路德金和聖托馬斯·阿奎那對法律的理解
Martin Luther King writes in Letters From Birmingham Jail that a just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.
To put it in the terms of St. Thomas Aquinas: an unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.
12、懲罰的公正性不唯一
Again, when the legitimacy of inflicting punishment is admitted, how many conflicting conceptions of justice come to light in discussing the proper apportionment of punishments to offences. No rule on the subject recommends itself so strongly to the primitive and spontaneous sentiment of justice, as the bex talionis, an eye for an eye and a tooth for a tooth. Though this principle of the Jewish and of the Mahometan law has been generally abandoned in Europe as a practical maxim, there is in most minds, a secret hankering after it; and when retribution accidentally falls on an offender in that precise shape, the general feeling of satisfaction evinced bears witness how natural is the sentiment to which this repayment in kind is acceptable. With many, the test of justice in penal infliction is that the punishment should be proportioned to the offence, meaning that it should be exactly measured by the moral guilt of the culprit （whatever be their standard for measuring moral guilt）, the consideration, what amount of punishment is necessary to deter from the offence, having nothing to do with the question of justice, in their estimation, while there are others to whom that consideration is all in all and who maintain that it is not just, at least for man, to inflict on a fellow creature, whatever may be his offences, any amount of suffering beyond the least that will suffice to prevent him from repeating, and others from imitating his misconduct.
13、關於公正的實用主義標準不可靠
We are continually informed that utility is an uncertain standard, which every different person interprets differently, and that there is no safety but in the immutable, ineffaceable, and unmistakable dictates of justice, which carry their evidence in themselves, and are independent of the fluctuations of opinion. One would suppose from this that on questions of justice there could be no controversy; that if we take that for our rule, its application to any given case could leave us in as little doubt as a mathematical demonstration. So far is this from being the fact, that there is as much difference of opinion, and as much discussion, about what is just, as about what is useful to society. Not only have different nations and individuals different notions of justice, but in the mind of one and the same individual, justice is not some one rule, principle, or maxim, but many, which do not always coincide in their dictates, and in choosing between which, he is guided either by some extraneous standard, or by his own personal predilections.
14、快樂的權利與司法公正
The equal claim of everybody to happiness in the estimation of the moralist and the legislator, involves an equal claim to all the means of happiness, except in so far as the inevitable conditions of human life, and the general interest, in which that of every individual is included, set limits to the maxim; and those limits ought to be strictly construed. As every other maxim of justice, so this is by no means applied or held applicable universally; on the contrary, it bends to every person’s ideas of social expediency. But in whatever case it is deemed applicable at all, it is held to be the dictate of justice. All persons are deemed to have a right to equality of treatment, except when some recognized social expediency requires the reverse. And hence all social inequalities which have ceased to be considered expedient, assume the character not of simple inexpediency, but of injustice, and appear so tyrannical, that people are apt to wonder how they ever could have been tolerated, forgetful that they themselves perhaps tolerate other inequalities under an equally mistaken notion of expediency, the correction of which would make that which they approve seem quite as monstrous as what they have at last learnt to condemn. The entire history of social improvement has been a series of transitions, by which one custom or institution after another, from being a supposed primary necessity of social existence to the rank of a universally stigmatized injustice and tyranny. So it has been with the distinctions of slaves and freemen, nobles and serfs, patricians and plebeians and so it will be, and in part already is, with the aristocracies of color, race, and sex.
15、實用主義的道德和公正
The considerations which have now been adduced resolve the only real difficulty in the utilitarian theory of morals. It has always been evident that all cases of justice are also cases of expediency: the difference is in the peculiar sentiment which attaches to the former, as contradistinguished from the latter. If this characteristic sentiment has been sufficiently accounted for, if there is no necessity to assume for it any peculiarity of origin, if it is simply the natural feeling of resentment, moralized by being made coextensive with the demands of social good, and if this feeling not only does but ought to exist in all the classes of cases to which the idea of justice corresponds, that idea no longer presents itself as a stumbling-block to the utilitarian ethics. Justice remains the appropriate name for certain social utilities which are vastly more important, and therefore more absolute and imperative, than any others are as a class （though not more so than others may be in particular cases）, and which, therefore, ought to be, as well as naturally are, guarded by a sentiment not only different in degree, but also in kind, distinguished from the milder feeling which attaches to the mere idea of promoting human pleasure or convenience, at once by the more definite nature of its commands, and by the sterner character of its sanctions.
16、實用主義觀點：懲罰的公正性
There are some who say, that it is unjust to punish any one for the sake of example to others, that punishment is just, only when intended for the good of the sufferer himself. Others maintain the extreme reverse, contending that to punish persons who have attained years of discretion, for their own benefit, is despotism and injustice, since if the matter at issue is solely their own good, no one has a right to control their own judgment of it, but that they may justly be punished to prevent evil to others, this being the exercise of the legitimate right of self-defense. All these opinions are extremely plausible, and so long as the question is argued as one of justice simply, without going down to the principles which lie under justice and are the source of its authority, it is unable to see how any of these reasoners can be refuted. For in truth each of the two builds upon rules of justice confessedly true. The first appeals to the acknowledged injustice of singling out an individual, and making a sacrifice, without his consent, for other people’s benefit. The second relies on the acknowledged justice of self-defense, and the admitted injustice of forcing one person to conform to another’s notions of what constitutes his good. Each is triumphant so long as he is not compelled to take into consideration any other maxims of justice than the one he has selected; but as soon as their several maxims are brought face to face, each disputant seems to have exactly as much to say for himself as the other. No one of them can carry out his own notion of justice without trampling upon another equally binding. These are difficulties:they have always been felt to be such, and many devices have been invented to turn rather than to overcome them. As a refuge from the second of the two, men imagined what they called the freedom of the will, fancying that they could not justify punishing a man whose will is in a thoroughly hateful state, unless it be supposed to have come into that state through no influence of anterior circumstances.
17、政策和公正性
Have mankind been under a delusion in thinking that justice is a more sacred thing than policy, and that the latter ought only to be listened to after the former has been satisfied? By no means. The exposition we have given of the nature and origin of the sentiment, recognizes a real distinction, and no one of those who profess the most sublime contempt for the consequences of actions as an element in their morality, attaches more importance to the distinction than I do. While I dispute the pretensions of any theory which sets up an imaginary standard of justice not grounded on utility, I account the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality. Justice is a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life. And the notion which we have found to be of the essence of the idea of justice, that of a right residing in an individual implies and testifies to this more binding obligation.
18、亞裏士多德觀點：自然法
Aristotle is often said to be the father of natural law. Like his philosophical forefathers, Socrates and Plato, Aristotle posited the existence of natural justice or natural right. His association with natural law is due largely to the interpretation given to him by Thomas Aquinas. This was based on Aquinas’ conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics. Aquinas’ influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally.
Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.
The best evidence of Aristotle’s having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the “particular” laws that each people has set up for itself, there is a “common” law that is according to nature. The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the “particular” law of ones’ own city was averse to the case being made, not that there actually was such a law. Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong. Aristotle’s theoretical paternity of the natural law tradition is consequently disputed.