Justice in American Thought

Though the Mayflower Compact (1620) stresses the importance of "just and equal Laws," John Winthrop's sermon "A Modell of Christian Charity" (1630) is a reasonable point of departure in examining justice in the American context. This sermon is important not only for the location where it was delivered—on the ship Arabella en route to a new continent—but also for the distinction between mercy and justice as well as for its emphasis on an ordered and tightly knit community predicated on mutual assistance. According to the principle of mercy, Christians must help their brothers and sisters beyond their ability in order to fulfill the gospel. But in lending means of subsistence and forgiving debts, justice intervenes. If a Christian brother, for instance, possesses the resources to repay a debt, "thou art to looke at him, not as an Act of mercy, but by way of Commerce, wherein thou arte to walke by the rule of Justice.…" (p. 32). When the probability of a debt being re-payed is null, Christians ought to lend according to the rule of mercy, which expects nothing. Along similar lines, whether the loan was an act of mercy or of justice, when the borrower has nothing to pay back, "thou must forgive him (except in cause where thou hast a surety or a lawful pleadge)" (p. 33). In this way, if there is a "lawful pleadge," justice overrules mercy.

The association of justice, commerce, and a lawful pledge delimits justice to the sphere of agreements and contracts sanctioned by the law. Though this view seems to narrow significantly the scope of justice, the refraction principle shows itself when the text is examined in more detail. At the end of his sermon, Winthrop presents the well-known analogy of the pilgrims as a "city upon a Hill." But it must be emphasized that the city upon a hill does not refer to the original biblical reference found in the Gospel according to Matthew. In Winthrop's reasoning, the context of the phrase is provided by the Israelites on their journey to the promised land. As in the Israelites' case, Winthrop's arguments center upon a covenant between God and the Christian community, and God will expect a strict compliance with the "Articles contained in it …," for otherwise "wee shall surely perishe out of the good Land whether wee passe over this vast Sea to possesse it.…" (p. 43). In other words, the relationship between God and Winthrop's fellow travelers is one ruled by justice in the form of a covenant, and an intrinsic part of this justice was the possession of the land where they would live.

Seen from this perspective, justice is no longer limited to contractual relations between persons. Rather, the boundaries encompassing justice widen substantially. At the same time, a covenant that carries the high penalty of divine wrath is ominous for all people who are outside the particular community Winthrop is addressing. Justice thus straddled two conflicting points of departure. The city upon the hill echoes the love Winthrop found in the gospel, while the covenant belonged to the Hebrew warriors who were to possess a land already inhabited. The New Testament "law of grace" and the Old Testament justice were inseparable. The mention of the city upon a hill is preceded by an explicit reference to God's command to Saul to destroy Amalek. In other words, the textual transplantation preceded the cultural transplantation. Justice, then, had two dimensions: a secular one defined by legal contracts among individuals as well as a providential dimension manifested in a covenant between God and a community bonded by shared beliefs.

The double character of Winthrop's conception of justice insisted on the individual's obligation to comply with his or her contracts and gave the community a privileged position in its dealings with non-Christians and even with Christians who did not share the same doctrinal tenets. Unity and fragmentation emerged as two central components that would be present in the understanding and application of justice. Winthrop's view of love anticipated this conclusion. Love stems from the fact that people see in others what they see and cherish in themselves. In this way, the root of otherness, as a standpoint that demands the conversion and "civilization" of non-Christians, or as the establishment of boundaries to keep outsiders at bay, was thus inscribed in the view of justice sketched in Winthrop's famous sermon. The "Dedham Covenant" (1636), a document specifying the form of government in the town of Dedham, Massachusetts, was more eloquent in describing the quest of unity and how exclusion was part of this quest. In section two, the limits of admittance into the community were specified: "That we shall by all means labor to keep off from us all such as are contrary minded, and receive only such unto us as may be probably of one heart with us.…" (p. 68).

Several years earlier, Virginia had already put into place a system of legal clauses that contained both a mix of exclusion and a call for fairness. The "Articles, Laws, and Orders, Divine, Politic, and Martial for the Colony in Virginia" (1610–1611) stipulated that no man "of what condition so-ever shall barter, trucke, or trade with the Indians, except he be thereunto appointed by lawful authority upon paine of death." (Article 15, p. 319). In the following article, the colonists were forbidden from despoiling any "Indian" who would come to trade, and the punishment would also be death (Article 16). By 1619, freemen were allowed to trade with the Indians, but offensive or defensive weapons could not be part of these commercial transactions.

The twofold nature of unity and exclusion should not obfuscate other features that would have a deep influence in the evolution and conceptualizations of the idea of justice. The "Plymouth Oath of Allegiance and Fidelity" (1625) contained an oath given to the governor and members of the council in which they would swear to administer justice "equally & indifrently without respect of persons." (p. 34) The same principle of impartiality is present in the "Pilgrim Code of Law" (15 November 1636) and runs consistently in the founding documents of the early settlements. The historical evidence thus shows that the English philosopher John Locke's (1632–1704) arguments about consent and impartial laws as the cornerstones of a political and just society were already present in the ideas animating the Puritans of the early colonies, the same ideas that permeated their providential and secular understanding of justice.

During King Philip's War (1674–1677), between the New England colonists and the Indian tribes in the region, the providential character of justice showed the consequences of its privileged standpoint. Increase Mather would remind his listeners that their unfaithfulness was the cause of the violent upheaval that threatened them. But he saw the destruction of the heathens as an act that abided with the justice expected from a people ruled by a providential design. For the war was just, and the army was executing "the vengeance of the Lord upon the perfidious and bloudy Heathen" (p. 107).