Justice and Traditional Authority

As the local warrior classes gradually wrenched power from the aristocratic estate owners for whom they served as "stewards" from roughly the 12th century onwards, a key milestone was the acquisition of the power to resolve disputes among the peasants of the estate. The importance of this power was that it made the steward the de facto arbiter of property and production relations within the state. Above and beyond the steward's ability to seize land or demand tribute from the local peasants by brute force, the possession of judicial authority gave him a powerful lever to deepen his control of the estate and its resources. As the final authority in disputes over the boundaries of plots, or over relations of subordination among the peasantry (which did exist), or over the transfer or inheritance of land, the steward had the capacity to decide in the favor of the claimant who was more favorable to his own interests (including, in order to gain that favor, willing to make payments or perform services of some kind).

The distributional consequences of judicial authority are visible in other contexts than early medieval Japan. In Europe, the distinction between manorial justice (decided by the lord) and royal justice (decided by officials of the crown's courts) was the essence of the difference between serfdom and the freedom of the peasantry. In England, the crown's justice supplanted that of the seigneurial lords (at least in part) in the early modern era, whereas it was consolidated--in return for submission to the prince's fiscal and military projects--in parts of Germany.

The judicial powers of local lords is an almost archetypal example of "traditional" authority. What the manorial lord in Europe or the local samurai steward in Japan enjoyed was the prerogative to be the one to determine what is "just" within a certain purview. This position, as well as limitations on it, became a matter of "tradition," but its origin lay in the struggle for power between lords and their peasants on one side, and on the other, between different strata of political authorities (the crown and the nobility in Europe, the local warrior families and the courtly proprietors in Japan). Tradition was the sedimentation of the balance of power, and though it became a rallying point for the defense of the status quo, it was always vulnerable to shifts in the balance--typically in favor of "higher-level" political powers in the face of ongoing conflict or peasant resistance.

In other words, though I remember being mystified by it the first time I read it, I've come increasingly to think that Thrasymachus was right. Justice--or, to be precise, the recognized prerogative to declare what is just--is a reflection of the advantage of the stronger. What remains so paradoxical about his assertion, however, is that as a matter of definition, "the advantage of the stronger" is not justice but instead, quite straightforwardly, strength. There is a question, then, why "the stronger" seek to call their strength "justice," instead of relying on unadorned force majeur.

It is, I've always thought, almost certainly irrational to continually fight out the exact balance of power, since the fight itself (say, over how much tribute or service peasants perform for their lords) destroys resources directly and disrupts the process of production. The advantage of the stronger is never absolute, and there are, in other words, costs to the direct test of strength. Given that, it makes sense for both sides to come to a consensus on what the rough balance is. This consensus acknowledges which side has the upper hand, but also enshrines certain expectations on how ambitious it will actually be. This consensus is, of course, fragile--hence the frequency of rebellions over "innovations" by lords or royal officials.