(The commentary of Andronicus upon this passage is clearer and more instructive than the passage of Aristotle itself: and it is remarkable as a distinct announcement of the principle of utility. “Since both natural justice, and conventional justice, are changeable, in the way just stated, how are we to distinguish the one of these fluctuating institutions from the other? The distinction is plain. Each special precept of justice is to be examined on its own ground to ascertain whether it be for the advantage of all that it should be maintained unaltered, or whether the subversion of it would occasion mischief. If this be found to be the fact, the precept in question belongs to natural justice: if it be otherwise, to conventional justice� (Andronic. Rh. v. c. 10).
The just, and the unjust, being thus defined, a man who does, willingly and knowingly, either the one or the other, acts justly or unjustly: if he does it unwillingly or unknowingly, he neither acts justly nor unjustly, except by accident — that is, he does what is not essentially and in its own nature unjust, but is only so by accident (v. 8). Injustice will thus have been done, but no unjust act will have been committed, if the act be done involuntarily. The man who restores a deposit unwillingly and from fear of danger to himself, does not act justly, though he does what by accident is just: the man who, anxious to restore the deposit, is prevented by positive superior force from doing so, does not act unjustly, although he does what by accident is unjust. When a man does mischief, it is either done contrary to all reasonable expectation, in such manner that neither he nor any one else could have anticipated from his act the mischief which has actually ensued from it (παραλόγως), and in this case it is a pure misfortune (ἀτύχημα): or he does it without intention or foreknowledge, yet under circumstances in which mischief might have been foreseen, and ought to have been foreseen; in this case it is a fault (ἁμάρτημα): or he does it intentionally and with foreknowledge, yet without any previous deliberation, through anger, or some violent momentary impulse; in this case it is an unjust act (ἀδίκημα), but the agent is not necessarily an unjust or wicked man for having done it: or he does it with intention and deliberate choice, and in this case he is an unjust and wicked man.
The man who does a just thing, or an unjust thing, is not necessarily a just or an unjust man. Whether he be so or not, depends upon the state of his mind and intention at the time (v. 8).
Equity, τὸ ἐπιεικὲς, is not at variance with justice, but is an improvement upon justice. It is a correction and supplement to the inevitable imperfections in the definitions of legal justice. The law wishes to comprehend all cases, but fails in doing so: the words of its enactment do not fully and exactly express its real intentions, but either something more or something less. When the lawgiver speaks in general terms, a particular case may happen which falls within the rule as he lays it down, but which he would not have wished to comprehend if he had known how to avoid it. It is then becoming conduct in the individual to whose advantage the law in this special case turns, that he should refrain from profiting by his position, and that he should act as the legislator himself would wish, if consulted on the special case. The general rules laid down by the legislator are of necessity more or less defective: in fact, the only reason why everything is not determined by law, is, that there are some matters respecting which it is impossible to frame a law (v. 10). Such is the conduct of the equitable man — “the man who refrains from pushing his legal rights to the extreme, to the injury of others, but who foregoes the advantage of his position, although the law is in his favourâ€� (ὁ μὴ ἀκριβοδίκαιος ἐπὶ χεῖρον, ἀλλ’ ἐλαττωτικὸς, καίπερ ἔχων τὸν νόμον βοηθόν).
A man may hurt himself, but he cannot act unjustly towards himself. No injustice can be done to a man except against his own consent. Suicide is by implication forbidden by the law: to commit suicide is wrong, because a man in so doing acts unjustly towards the city, not towards himself, which is impossible (v. 12).
To act unjustly — and to be the object of unjust dealing by others — are both bad: but which is the worst? It is the least of the two evils to be the object of unjust dealing by others. Both are bad, because in the one case a man gets more than his share, in the other less than his share: in both cases the just medium is departed from. To act unjustly is blameable, and implies wickedness: to be the object of unjust dealing by others is not blameable, and implies no wickedness: the latter is therefore in itself the least evil, although by accident it may perhaps turn out to be the greater evil of the two. In the same manner a pleurisy is in itself a greater evil than a trip and a stumble: but by accident it may turn out that the latter is the greater evil of the two, if it should occur at the moment when a man is running away from the enemy, so as to cause his being taken prisoner and slain.
The question here raised by Aristotle — which is the greater evil — to act unjustly or to be the object of unjust dealing — had been before raised by Plato in the Gorgias. Aristotle follows out his theory about virtue, whereby he makes it consist in the observance of a medium point. The man that acts unjustly sins on one side of this point, the object of unjust dealing misses it on the other side: the one is comparable to a man who eats or works too much for his health, the other to a man who eats or works too little. The question is one which could hardly arise, according to the view taken by modern ethical writers of the principles of moral science. The two things compared are not in point of fact commensurable. Looking at the question from the point of view of the moralist, the person injured has incurred no moral guilt, but has suffered more or less of misfortune: the unjust agent on the contrary has suffered no misfortune — perhaps he has reaped benefit — but at any rate he has incurred moral guilt. Society on the whole is a decided loser by the act: but the wrong done implies the suffering inflicted: the act is considered and called wrong because it does inflict suffering, and for no other reason. It seems an inadmissible question therefore, to ask which of the two is the greater evil — the suffering undergone by A — or the wrong by which B occasioned that suffering: at least so far as society is concerned.
But the ancient moralists, in instituting this comparison, seem to have looked, not at society, but at the two individuals — the wrong doer and the wrong sufferer — and to have looked at them too from a point of view of their own. If we take the feelings of these two parties themselves as the standard by which to judge, the sentence must be obviously contrary to the opinion delivered by Aristotle: the sufferer, according to his own feeling, is worse off than he was before: the doer is better off. And it is for this reason that the act forms a proper ground for judicial punishment or redress. But the moralist estimates the condition of the two men by a standard of his own, not by the feelings which they themselves entertain. He decides for himself that a virtuous frame of mind is the primary and essential ingredient of individual happiness — a wicked frame of mind the grand source of misery: and by this test he tries the comparative happiness of every man. The man who manifests evidence of a guilty frame of mind is decidedly worse off than he who has only suffered an unmerited misfortune.