Let us now distinguish between all unjust and just deeds first beginning from hence. Just and unjust deeds, therefore, are divided with reference to two laws, and with reference to the persons to whom they relate in two ways. But I call law either proper or common. And the proper, indeed, is that which the several cities and nations have established among themselves. And of this law, one part is not written, but the other part is written. But common law is that which is according to nature. For there is something which is just, and something which is unjust in common naturally, and which all men prophetically pronounce to be so, though they have no communion nor compact with each other. And this the Antigone of Sophocles appears to intimate, when she asserts that it is just to bury Polynices, though forbidden to do so by Creon the king, because this is naturally just. Nor could I ever think, A mortal’s law of power or strength sufficient,
To abrogate th’ unwritten law divine, Immutable, eternal, not like these, Of yesterday, but made ere time began. And as Empedocles says with respect to not slaying that which is animated. For this is not indeed just to some persons, but not just to others, But a fixed law in all men’s breasts, where’er Heaven’s light immense shines thro’ wide-ruling air. And this is also confirmed by Alcidamas in his Messeniac oration. The persons, however, to whom the just and the unjust are referred, are distinguished in a twofold respect. For what ought and what ought not to be done is either referred to the community, or to one individual of the community. Hence, also, with respect to unjust and just deeds, it is possible to act justly and unjustly in two ways; viz. towards one definite person, or towards the community. For he who commits adultery, or strikes a man, injures some definite person; but he who does not fight for his country, injures the community. Since, therefore, all unjust deeds receive a twofold division, and some have a reference to the community, but others to different private persons, after repeating what it is to be injured, we shall explain the rest. To be injured, therefore, is to suffer unjustly, by those who act voluntarily; for we have before defined the injuring another person to be a voluntary deed. Since, however, he who is injured is necessarily hurt, and is hurt unwillingly; what hurts are, indeed, is evident from what has been before said. For good and evil have been already essentially distinguished; and voluntary deeds are such as men perform knowingly. Hence it is necessary that all crimes should either be committed against the community, or against an individual, and this either by one who is ignorant, or by one who is unwilling, or by one who acts willingly and knowingly. And of these crimes, some are the result of deliberate choice, but others are the effect of passion. Concerning the crimes therefore which are produced from anger, we shall speak when we discuss the passions. And we have already shown what are the objects of deliberate choice, and how men are disposed with respect to them. Since, however, frequently men who confess that they have done a thing of which they are accused, either deny the name by which the accuser calls the deed, and inscribes the accusation, or deny the thing which is signified by the inscription; as for instance, that the thing was taken, indeed, but not stolen; and that such a one gave the first blow, but did not act insolently; and associated with the woman, indeed, but did not commit adultery with her; or that he committed a theft, but not sacriledge; (for he took nothing consecrated to divinity) or that he broke up land, but not belonging to the public; or that he discoursed with the enemy, but did not betray his country; on these accounts, it will be requisite to define what theft, insolent conduct, and adultery are, in order that if we wish to show these offences were committed or not, we may be able to declare what is just. Every thing, however, of this kind pertains to the question whether the thing is unjust and wicked, or is not unjust; for depravity and acting unjustly consist in deliberate choice. But appellations of this kind presignify deliberate choice; as for instance, insolent conduct and theft. For it does not follow that he who strikes another acts entirely insolently towards him, but then only if he strikes him for the sake of insulting him, as for instance, with a view to disgrace him, or to please himself. Nor does it entirely follow that if a man receives any thing latently, that he has stolen it; but if he takes it away with a view to the detriment of him from whom he takes it, and of his own advantage. The like also takes place in other things, in the same manner as in these. Since, however, there are two species of just and unjust things; for some indeed are written, but others are not committed to writing; of those indeed which are proclaimed by the laws we have already spoken. But of those which are not committed to writing there are two species. And of these, some indeed consist in the excess of virtue and vice, in which are disgrace and praise, ignominy and honour and gifts; such for instance, as to be grateful to a benefactor, to benefit him who benefits, to be ready to give assistance to friends, and other things of the like kind. But others are a supplement to the proper and written law. For the equitable appears to be just; and the equitable is that which is just, besides what is enjoined in the written law. This, however happens partly against the will, and partly with the will of the legislators. Against their will, indeed, when the crime is latent. But with their will when they are unable to define the thing; and it is necessary, indeed, to assert universally that the thing does not thus subsist always, but for the most part. Legislators also omit certain things willingly, which it is not easy to determine on account of their infinity; as for instance, when they ordain a punishment for striking a man with iron, they omit to determine the quantity and the quality of the iron. For life would not be sufficient to enumerate things of this kind. If, therefore, any thing is indefinite; but it is requisite to make a law concerning it, the legislator must necessarily promulgate the law simply. Hence, if a man having a ring on his finger lifts up his hand against, or strikes another person, according to the written law, indeed, he is guilty, and acts unjustly; but in reality, he does not act unjustly by striking him with his ring; and this is the equitable. If then what we have said be equity, it is evident what kind of things are equitable and not equitable, and also what kind of men are not equitable. For those things are equitable in which it is necessary to grant pardon. It is likewise equitable not to estimate errors and injuries as deserving equal punishment, nor errors and misfortunes. But misfortunes are such things as happen contrary to expectation, and not from depravity. Errors are such things as do not happen contrary to expectation, and are not from depravity; but injuries are such things as are not effected contrary to expectation, but proceed from depravity. For what proceeds from desire, emanates from depravity. It is likewise equitable to pardon human frailties. Also not to direct our attention to the law, but the legislator. And not to look to the action, but to the deliberate intention of him who did it. Nor to a part of a thing but the whole. Nor to consider what kind of a person a man is now, but what he always was, or for the most part. It is also the province of an equitable man rather to remember the good than the evil which he has received from another; and to be more mindful of the good which he has received, than of the good which he has done. Also to endure the being injured, patiently; and to be more willing that a controversy should be decided by words than by deeds. He is likewise more desirous that a thing should be decided by arbitration than by the suffrages of judges. For an arbitrator looks to the equitable; but a judge looks to the law. And recourse is had to an arbitrator for the sake of this, viz. that the equitable may prevail. And thus much concerning the equitable.
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