The Social Contract in Epicureanism

1 The Invention of Justice and the Making of Laws

As I aim to show in this section, Epicurus viewed justice as a compact for the benefit that comes from not harming one another. It may be regarded as contingent in two ways. Considered phylogenetically, justice came into being and may go out of existence again as a discovery made by humans. Considered ontologically, it is a temporary attribute of humans joined by a compact with one another. As a compact for an external benefit, it must be distinguished from this benefit. It must also be distinguished from the establishment of laws, which are just or not depending on whether they fit the conception of justice.

These claims are surrounded by much controversy. As a basis for discussion, I shall first separate out three positions. Robert Philippson (1910) distinguishes between a natural and a conventional stage, identifying the first as “natural right” (Naturrecht), or natural justice, and the second as “legal right” (Gesetzesrecht), or positive law.^[5] According to Victor Goldschmidt (1977), Epicurus absorbed the “nature of droit” (la nature du droit) within positive law.^[6] Subsequently, Antonina Alberti (1995) argued for the separation of justice from law. Very roughly, Goldschmidt merges two stages that Philippson and Alberti keep separate. In my view, Epicurus both unites nature with convention and keeps justice separate from law.

The main body of evidence is a list of Authoritative Opinions (Kyriai Doxai, or KD), numbered 31–38.^[7] This is a highly compressed summary. It was largely dismissed as a patchwork of scattered sayings until the early twentieth century.^[8] Despite omissions, I suggest that it has a unity of its own. As I shall argue in this section, it proceeds conceptually from first delineating the preconception of justice to showing how this preconception serves as a norm for judging the justice of laws. I shall then argue for a temporal progression in Section 2.

Epicurus first delineates the “justice of nature” in KD 31:

The justice of nature (to tês physeôs dikaion) is a token (symbolon) of benefit (sympherontos) with a view to not harming one another or being harmed.

As Goldschmidt (1977, 28–31) pointed out, this is what Epicurus calls a “preconception”, prolêpsis, a term used later in KD 37–38. Epicurus coined the word “preconception” to designate the “first conception” that underlies an utterance (Her. 37–38). It is, broadly, an ordinary thought, held in common by users of a word; and it was said to be a “memory of what has often appeared from outside,” as well as a belief that is true.^[9] It is not a definition, but may be delineated by a brief description consisting of certain salient features.^[10]

There has been much debate as to whether symbolon has the sense of “token” or “guarantee”, or (more widely) “sign” or “symbol”.^[11] On my view, Epicurus applies his own principle of starting an inquiry with the ordinary meanings of words (“preconceptions”) by first using symbolon in the ordinary sense of “token” or “guarantee”, in the way that a seal, for example, guarantees the identity of a person. After this, he fills in the type of guarantee as a “compact”, synthêkê, as specified immediately afterward in KD 32 and 33. The “justice of nature”, it follows, is a compact that secures the benefit that comes from not harming one another. In place of a material token, such as a seal, it is a different type of token, consisting of a compact, that humans have invented in their dealings with one another. By first using the term symbolon, Epicurus draws attention to the fundamentally important point that it is a guarantee. By following up with “compact”, he makes clear that this is not merely an agreement, but a type of agreement that guarantees what is agreed upon. He also makes the bold claim that “the justice of nature” consists, paradoxically, of a convention.

I will return to the paradox at the end of this section, then consider it throughout the remainder of the paper. For now, I shall mention another point of translation. There has been a tradition among non-Anglophone scholars to translate “what is … just”, to … dikaion, at KD 31 as Recht, droit, or diritto.^[12] This translation introduces an ambiguity between law and justice. In my view, the term means “just”, as it was commonly used by the time of Epicurus. To dikaion is literally “the just”, or “what is just”. More idiomatically, it may also be translated as “justice”. This introduces another ambiguity; for Greek dikaiosynê, “justice” was used not only in the same broad of sense as “the just”, but also in the narrow sense of designating the virtue of justice. Throughout this paper, I shall use the English term “justice” in the broad sense, except when I refer explicitly to the virtue of justice.

KD 32 imputes the origin of justice to those tribes (ethnê) that were able and willing to “make compacts on behalf not harming one another”. These are human tribes, as distinguished from irrational animals by their ability and willingness to make compacts. Among irrational animals or other human tribes, “nothing was just or unjust”. Importantly, there was neither justice nor injustice prior to the making of compacts of justice.^[13]

KD 33 explains further that “justice (dikaiosynê) was not something by itself, but a certain compact … in one’s dealings with one another in whatever places [it occurred] at any time”. Here Epicurus uses the noun dikaiosynê as equivalent to “what is just”(“the just”) to oppose the view that justice ever was anything but a compact made by humans at particular times or places. As many have pointed out, Plato’s Forms fit the position he attacks. Less obviously, Epicurus attacks the divinity of justice, along with the traditional idea of natural justice as something that is always the same.

Epicurus refers to the conception of justice as a compact once more in KD 35 as what “[people] compacted with one another for the purpose of not harming nor being harmed”. At this point, Epicurus has laid down the preconception of justice as having three salient features: a compact, a benefit, and the specification of the benefit as not harming one another. These features may be compressed into just two: a compact, and a certain type of benefit. These are necessary features, intended to call up in a person’s mind the ordinary conception of justice.

Having set out the preconception of justice, Epicurus then moves on to the conception of injustice in KD 34–35, as will be discussed in the next section. Last, he focuses in KD 36–38 on the benefit secured by a compact of justice. This focus has led to the misconception that Epicurus identified justice at times as an external benefit, thus leading to an inconsistency with his conception of the virtue of justice.^[14] As I shall argue, there is no inconsistency; for Epicurus views the benefit all along as the content of a compact, and it is the keeping of the compact that produces virtue. Here is KD 36:

Concerning what is common (koinon), justice (to dikaion) [is] the same for all; for it was a certain benefit in communal relations with one another (sympheron … ti en têi pros allêlous koinôniai). With respect to the individuality (to idion) of a place or of any cause whatsoever, it does not follow that justice is the same for all.

With an obvious play on the words “common” and “community”, Epicurus now identifies what is common to justice (in the broad sense of “just”) as a “certain benefit in communal relations with one another”. This is the benefit that comes from a compact not to harm one another. It follows that justice is the same for all. It does not follow, on the other hand, that justice is the same for all specific compacts; for they may differ, depending on difference of circumstances. The whole is a nod to the traditional view of natural law: instead of being the same forever, justice is the same for as long as it lasts as a compact for a certain benefit.

Epicurus makes no explicit mention of a compact in KD 36, although he implies it by the reference to “communal relations”. There is no need to mention it at this point; for Epicurus now focuses on a part of it, the benefit, as admitting of a difference. According to the common notion of justice (the “preconception”), justice is the same for all; for it guarantees the benefit that comes from not harming one another. Compacts do not, however, merely make the general demand not to harm one another: they guarantee the benefit that comes from not harming one another by specifying how not to harm one another. Our sources contain only two possible examples Hermarchus’ “agreement” not to kill other humans; and Lucretius’ compacts to pity the weak.^[15] Each of these compacts might, indeed, be common to all communities for a time. Yet, this does not prevent compacts from differing specifically from one community to another. For example, they may differ on property boundaries, the distribution of water, or coinage. In every case, it now turns out, justice is the same at any time yet may differ.^[16]

KD 37 and 38 deal further with the benefit of justice. Not only is it possible for it to differ from on location to another, but it may also change within a community. Again, there is no mention of a compact. it is strongly implied, however, not merely by references to communal relations but also by an appeal to the “preconception”, prolêpsis, of justice in both KD 37 and 38 as a norm of judgment. Epicurus now illustrates the changeability of the benefit by giving special attention to the institution of laws, which he now mentions for the first time. Here is KD 37:

On the one hand, with respect to [things] considered to be just (ta nomisthenta einai dikaia), what is attested (epimarturoumenon) to be beneficial in the needs of [living in] a community with one another has the [nature] of justice, whether it is the same for all or not. On the other hand, if someone puts in place a law (nomon thêtai), but it does not turn out in accordance with the benefit of [living in] a community with one another, this no longer has the nature of justice. Further, if the benefit of justice changes, but fits the preconception for a certain time, it was nonetheless just for that time in the eyes of those who do not confuse themselves with empty sounds but look at the facts.^[17]

Epicurus first states the general requirement that “[things] considered to be just” (ta nomisthenta einai dikaia) must be confirmed to be beneficial, then applies this requirement to law, nomos. Laws, he points out, may change from being just to “no longer” being just. KD 38 explains that the change happens when new circumstances come about.

In ordinary usage, Greek nomos has either the broad sense of a habitual practice (which may be translated as “institution” or “convention”), or the narrow sense of “law”. As a law, it is a decree or enactment, accompanied by penalties, which is “put in place” (as expressed by the verb tithenai) by a “law-maker” (nomothetês) by an act of nomothesia (“law-making”). To “put” a law “in place” is to “posit” it, in the sense in which all law is “positive”. What makes a law just, Epicurus now proposes, is that it fits the “preconception”, prolêpsis, of justice. Although all law is positive, not all law is just. By enforcing compacts of justice, laws serve as “guardians” (phylakes) of the justice that is guaranteed by a compact.^[18]

Having previously (in KD 31–33) delineated what is just, Epicurus now calls the conception by its technical term, prolêpsis. He also makes use of the technical term epimartureomai (KD 37). Both terms signal a method of verification that is uniquely Epicurean. A person may form an opinion (doxa) whether something is true or false; but the opinion is neither true nor false until it has been confirmed or disconfirmed. In the case of things that may be observed by perception, an opinion is judged true or false by the criterion of “attestation” (epimarturêsis) and “non-attestation” (ouk epimarturêsis).^[19] It is “attested”, hence true, if it is shown by sensory perception to “fit” (KD 37 and 38) the relevant “preconception”. If it does not “fit”, it is “not attested”, hence false.

In the case of justice, the preconception requires that the benefit guaranteed by the compact really does exist, as observed by perception. If there is no benefit, there is no justice, for there is no compact of justice. Likewise a law is just only if it confers the benefit on which people have agreed by compact. One might object that since Epicurus says nothing about a compact at KD 37–38, there is no need for one; but justice, as he has explained all along, is a compact. What makes the benefit necessary is precisely that it is guaranteed by a compact.^[20]

A special difficulty arises in the case of laws. One might be misled into thinking, that because laws are fixed in writing, especially on inscriptions, they are fixed for all time; or one might be misled by the esteem generally accorded to the first law-makers. None of this, however, makes any difference to what makes a law just; and this, as compacted by all, makes it necessary to keep testing a law in order to make sure that it continues to be just. Members of a community may indeed go wrong (as will be discussed in the next section) about what, in particular, fits the preconception of justice. Yet the basis of judgment is the agreement of all. Democratic Athens provides an example of a continuous scrutiny of laws that admit of change.^[21] But other forms of rule, too, may be just, provided that they are founded on compacts made by the community as a whole.

It follows that what makes a law just is not the mere fact that it has been put in place (as “positive” law), nor the authority of a law-giver, such as Draco (celebrated as the first Athenian law-giver) or Solon, nor its antiquity, as many believed.^[22] What makes a law just is the common agreement of the citizens on the preconception of justice; and a law-giver, or any government official, has authority only insofar as it is based on the agreement of all.^[23]

There has been much discussion of whether compacts of justice originated prior to the making of laws. I shall say more about this in the next section. Here, I shall point out only that it was commonplace to view nomoi, construed in the broad sense of practices, as both preceding and concurrent with laws.^[24] Some of these practices were considered as everlastingly just, hence naturally just, for the reason that they were commanded by god. Epicurus replaced divine justice by human compacts. Did he, then, place some of the practices “considered just” (in KD 37 and 38) temporally prior to laws?

I shall end this section by returning to a point made initially by Epicurus in KD 31. There he called justice “the justice of nature” (to tês physeôs dikaion). As I have argued elsewhere,^[25] I take the expression to tês physeôs dikaion to mean “justice of nature”, in the sense of “just by nature.” Plato (at Gorgias 484b) imputes the same expression to Callicles to signify that it is naturally just for the strong to take advantage of the weak.^[26] By contrast, Epicurus presents what is naturally just as a kind of compact. After KD 31, the qualifier “of nature” drops out, for the same reason that “compact” drops out in KD 36–38: Epicurus now turns to other aspects of justice. At KD 37, he introduces a new expression: “the nature of justice”. This is not the same as “the justice of nature”; as he explains, it is what corresponds to the preconception of justice. He already explained at KD 33 that justice was not “something by (kath’) itself”, but a “certain compact”. We may ask, then, what is its nature as a certain compact, as previously delineated? To answer this question may ultimately tell us what is naturally just.

I shall therefore turn to Epicurus’ ontology, as presented in the Letter to Herodotus 75–76, as a first step to this goal. As Alberti has shown, justice fits this ontology as a temporary attribute of bodies.^[27] According to Epicurus, whatever is predicated of a “body” may belong to it in one of two ways: permanently, as a component of its “everlasting nature”; or temporarily, as a contingent attribute, called symptôma. As suggested by the etymology, the latter “befalls” a body for a time; in his more detail exposition (1.455-82), Lucretius calls it an “event”, eventum. The two types of attributes are not “natures by (kath’) themselves”; yet each has a kind of existence (Her. 68–69). Overall, Epicurus assigns three kinds of being to perceptible things: bodies, which exist in themselves; permanent constituents of a body; and temporary attributes of a body, which come and go.

As a temporary attribute, the “nature” of justice is a compact made by humans with one another on what is reciprocally beneficial. It is relative in two respects: in relation to other humans; and in relation to the circumstances in which they live.^[28] As an agreement, it belongs to individual human bodies, joined to one another not as bodies, but by the agreement of each. It has been suggested that justice might be viewed as both the permanent attribute of a group of people held together by a compact for a time and as a temporary attribute, subject to change.^[29] Like Aristotle, however, Epicurus conceived of a community as a multitude of humans, joined for a time with each other. Even though one may speak of a community as just, what makes it just is that the individual members of the community agree with each other on what makes it just.

There is a long tradition, which goes back to antiquity, that Epicurus regarded laws as “nothing other than compacts”, as Gassendi puts it.^[30] At times, the so-called “laws” are viewed as being truly laws; that is, they are conceived as being just. There are many variations of this position. As I suggest, the rather vague consensus may be given precision by outlining it as the division of a general category (either compacts or laws) into two subordinate types. Compacts of justice are a general kind, subdivided into two types: compacts of justice formulated as laws; and mere compacts of justice. Likewise, laws may be viewed as a general kind, subdivided into two types: laws that are just; and laws that are not just.^[31]

To conclude this section, I have argued that, as a compact for a certain benefit, justice is a temporary attribute of humans, consisting of a decision made jointly by individuals with others for the purpose of securing a benefit. It is a compact for a benefit, not the benefit itself. Laws are decrees, enforced by penalties; and they may be just or not. If just, they are decrees that enforce a compact of justice.

2 From Compacts to the Virtue of Justice

This section will examine the cognitive development that leads to the virtue of justice. To trace this development, it is necessary to distinguish between two types of benefit. There is, first, the external benefit that is secured by the making of a compact of justice, as discussed in the previous section. There is, second, the inner sense of security that follows on the acquisition of an external benefit. This sense of security culminates in the superlatively great (“greatest”) sense of security of a virtuously just person. This is a type of ataraxia, “freedom from distress.” What is there, then, about the virtue of justice that brings about this benefit? As I shall argue, the virtue of justice is an unfailing disposition to keep compacts of justice. Conceived as an unfailing memory of the benefits of justice, it is a cognitive disposition, replete with a sure knowledge of what makes compacts of justice beneficial.

As John Armstrong (1997) has argued, there is only a single motivation for the progression from individual compacts to the virtue of justice: the goal of pleasure.^[32] As I understand this progression, it includes the making of laws. Laws add the motivation of penalties; but this is a means of compensating for the imperfect understanding of all who are not yet virtuous. It is a make-shift device, to be dispensed with as soon as a person has attained the virtue of justice. The penalties drop out; but the compacts do not. The compacts set the limits that a virtuous person observes in relation to others.

To begin, I shall first consider the harm done by injustice. Shockingly, as Epicurus points out at KD 34 and 35, there is nothing “bad” about injustice “in itself’”. What is bad is a consequence: the fear of being detected. Here is KD 34:

Injustice (adikia) is not [something] bad in itself; but [this lies] in the fear of suspecting that one will not escape the notice of those in charge of being punishers of such things.

KD 35 expands as follows:

In the case of a person who does in secret something that people compacted (synethento) [not to do] for not harming one another or being harmed, it is not possible to be confident that he will escape detection, even if he escapes notice a thousand times in the present …

In both texts, it is assumed that injustice consists in violating a compact in secret.^[33] As KD 35 adds, the fear mars one’s whole life. Even in the case of a single act of injustice, it seems, a person is tormented for the rest of one’s life. Both texts are applicable to laws, as enforced by penalties. Yet they also leave open the possibility that non-legal compacts, too, may have “punishers in charge”, though informally, such as family members.

It was commonplace in Greek thought to view injustice as pleonexia-- literally “having more”. Epicurus shares this view, although he differs in his explanation for it: it is due to a mistake on how to obtain one’s ultimate goal, pleasure. In his view, a person acts unjustly for the sake of a double benefit: both the general benefit of not being harmed oneself, as compacted by all, and the personal benefit that comes from harming another, contrary to the compact. This is a mistake, not because pleonexia is bad in itself, but because one fails to calculate that any gain in pleasure is far outweighed by a life-time of mental pain.

This position provoked a storm of attacks in antiquity. Along with the charge of immorality, critics objected that Epicurus much exaggerated the fear of being detected.^[34] On this point, Epicurus took indeed an extreme view. There is, however, a reason for it. To recognize fully what is so bad about evading punishment, one must calculate the whole of what one loses over against the whole of what one gains. What one loses is the extreme loss of any prospect of happiness. It is the whole of a happy life, as opposed to an immediate gain.^[35] Only a virtuous person has the ability to make a full calculation of this sort. All the rest have only an imperfect understanding; and that is why they need to be deterred by penalties that are fixed by law. Legal penalties make up for imperfect calculation, even though they deter only imperfectly themselves.

Epicurus offers no details on what happened prior to the making of laws. Hermarchus and Lucretius help to fill the gap. As reported by Porphyry, Hermarchus distinguished between two stages.^[36] People first “agreed” not to kill one another, but only “perceived irrationally” and “often forgot” the benefit of doing so, with the result that they “forgot often”. In time, some people, who “kept remembering” and differed from the rest by their “practical intelligence”, phronêsis, induced some others to use epilogismos, a type of calculation called “appraisal”, and “implanted memory” in them; and they frightened the rest by penalties.^[37] The first group were the first law-givers. They used the fear of penalties as a “remedy against the ignorance of what is beneficial.” If all were able to “see and remember alike what is beneficial”, they would not require laws.

Lucretius is more expansive. He depicts a continuum that consists of several stages. First, neighbors made “compacts” (foedera, 5.1025) not to harm one another by taking pity on one another’s weak children and wives (5.1019-23).^[38] In time, some individuals, who stood out in “intelligence and courage”, came to show others to make changes (5.1105-7). Among them, kings founded cities. Next, the discovery of wealth resulted in an eruption of excess desire, which ultimately plunged humans into extreme violence, perpetrated by each against each other (5.1137-42). In the end, some individuals “taught” others to appoint magistrates and established laws to be used willingly (5.1143-44). He also explains that “the human race” as a whole submitted all the more spontaneously to the constraint of laws (artaque iura, 5.1147) for the reason that they used to “exact fiercer punishment out of anger than is now permitted by just laws “(5.1148-49).

Lucretius calls these laws “compacts of peace” (foedera pacis, 5.1155). It was common practice to end a war with a compact that restored peace. In agreement with this usage, I suggest, Lucretius uses the expression to signify the end of the civil war that pitted each citizen against another. Overall, he frames his account of social relations by two occurrences of the term foedera: the term is used, in the first place, to designate the origin of justice as “ compacts” made by neighbors; and at the end of a process of rational development, to designate the first laws, instituted by law-makers, as “compacts of peace”.^[39]

It is risky to view Lucretius as a source for Epicurus.^[40] Despite obvious differences, however, there are some congruences with Hermarchus, which point to some basic agreement with Epicurus. Among the differences, Hermarchus does not call the initial agreements “compacts”;^[41] nor does he say anything about pity or a descent to extreme violence. Lucretius says nothing about the irrationality of sensory perception or the failure of memory. Still, Lucretius assigns lapses to a time before law-making, culminating in an extreme failure to put a limit to desire.

Both agree on the superior insight of the first law-makers. By calling it “practical intelligence” (phronêsis), Hermarchus identifies it as Epicurus’ basic virtue, as set out at Men. 132, As discussed further in the next section, this is not the same as the virtue of justice, but a foundation for its development. The result is a distinction among three levels of understanding: the virtue of the law-makers, as attended by epilogismos (“appraisal”, as translated by Schofield 1996); the lasting memory implanted by them in some others due to the use of epilogismos; and the ignorance of the rest. This division is consistent with what Lucretius says. He assigns teaching explicitly to the law-makers. At the same time, he qualifies the ignorance of the majority by imputing to them a willingness to submit to the constraint of laws. In both accounts, the majority are ignorant for the reason that they lack the full rationality of epilogismos, “appraisal”.

It is time to return to the question whether Epicurus recognized compacts of justice prior to the establishment of laws. Lucretius declares outright that there were compacts; but more evidence is needed. As I suggest, the very progression depicted by both Hermarchus and Lucretius provides further evidence.^[42] At first sight, Hermarchus’ division of human progress into, first, an irrational stage of perception and, second, a rational stage of “appraisal” might seem to eliminate compacts from the first stage. Obviously, however, humans do not become fully rational all at once. As Lucretius makes very clear, humans develop their rational capacity gradually and at different rates. In the case of justice, as Lucretius depicts this process, some humans, joined by others, first acquire the incipient insight that it is useful to make compacts with each other. This insight is still tentative, subject to failure. In time, some individuals stand out above the rest as having special insight. Finally, some individuals acquire the full rationality of recognizing the benefit of enforcing compacts by laws; and they teach some others, while the rest lag behind.

Philodemus illuminates further the development of reason in a text that is often cited, if only in part. Well preserved, it is worth quoting in full.^[43] I have divided it into three parts, corresponding to the three sentences:

(1) Our philosophers say that whatever is just, good and fine [or “beautiful”, ta kala] is the same as what is conceived (nooumenois) by the many, thus differing from the latter only in holding them in mind not merely passively (pathêtikôs) but by appraising (epilogistikôs) them and not forgetting them often, but always measuring the primary goods over against indifferents. (2) They [ie. our philosophers] do not have the same opinions as the many on what produces our goals – such as political offices, constitutions, the overthrow of tribes, and everything of this sort. (3) Similarly (paraplêsiôs) , we [Epicureans] posit as just and fine (kala) whatever is conceived in accordance with the preconceptions (prolêpseis) that are seen (blepomenas) by them [ie. the many], but differ from the opinion of the [masses] about what fits the preconceptions.

Philodemus refers to “our philosophers” as “they” in the first and second sentences, then switches to “we” in the third. Sentence (1) introduces the entire sequence by drawing a distinction between a stage of frequent forgetting and epilogismos. As Philodemus explains, Epicurean philosophers agree with the many on the conceptions of what is just, good and fine, but differ by holding these conceptions not merely passively, but by making an appraisal (epilogismos). The passivity is joined by frequent forgetting; and epilogismos is said to measure primary goods over against so-called “indifferents.” Sentence (2) adds a difference of opinion. Epicurean philosophers reject the opinions of the many on what produces our goals – things such as political offices, constitutions, the subjugation of others, and the like. Sentence (3) then returns to the conceptions mentioned in sentence (1). “Similarly”, Philodemus now points out, we conceive of what is just and fine on the basis of the same “preconceptions” as “seen” by the many; but we differ from them on what “fits” our preconceptions.

What is especially noteworthy is that Philodemus here applies to the preconception of justice, along with what is good and fine, Hermarchus’ distinction between an irrational stage of frequent forgetting and epilogismos. As mentioned previously, a preconception was said to be a “memory of what has often appeared from outside”.^[44] Here, Philodemus describes the cited preconceptions as occurring pathêtikôs (1) as well as being “seen” (3). The adverb pathêtikôs was used ordinarily in both a restricted sense, to designate a feeling of pleasure or pain, and, more broadly, in the sense of “passively”, to refer to any affection at all.^[45] Here, I assign to it the broader sense; for although a preconception may provoke a feeling of pleasure or pain, it is basically an affection, produced passively within an individual by sensory impacts from outside.^[46] This passivity, which is subject to frequent forgetting, makes a contrast with the activity of epilogismos as a rational force.

As for epilogismos, Philodemus assigns three functions to it: to measure “primary goods over against indifferents” (1) ; to determine what “produces our goals” (2); and to determine what “fits” the preconception (3). These functions overlap. The term “indifferent” points to the Stoic category of things that are neither good nor bad. In Epicurus’ ethics, primary goods include the virtues, conceived as a means of attaining the ultimate good, pleasure. In sentence (3), the term “similarly” may be taken to refer to either the production of goals (2) or the whole of what has preceded (1 and 2). Here, Philodemus separates out the preconception from determining what fits it. Likewise, Epicurus requires in KD 37–38 the use of the preconception of justice as a norm for determining what “fits” it. This, he explains, is to determine whether a compact of justice really is beneficial or not. Philodemus adds epilogismos as a way of assuring that what has been thought beneficial really is conducive to the goal of pleasure.

If, then, the preconception of justice consists of a type of compact, as I have argued, compacts of justice came into being at an early, still predominantly irrational stage of human development, when humans were just beginning to use their reasoning powers to achieve the goal of pleasure. The word “compact” tends to evoke the idea of being legally binding. What is binding, however, is something else, which underlies human relations at just about any stage of their development: a principle of reciprocity. This is subject to failure, which the Epicureans interpreted as a failure of memory. The solution, as the Epicureans saw it, was to strengthen memory through calculation or, if this fails, to compensate for continued weakness by the penalties of law. At full strength, the memory of justice is sustained by a full recognition of the benefits that come from compacts; and this requires, ultimately, an Epicurean understanding of the reality of things. Diogenes of Oenoanda sums up this final requirement as the ability “to see correctly what is the nature of desires, pains, and death.” ^[47] Although he does not mention compacts here, this is the sort of knowledge that explains why a virtuously just person keeps compacts of justice without fail.^[48]

Finally, I return to the greatest benefit of justice: the maximal, inner freedom from distress of a virtuously just individual. Epicurus contrasts this benefit with the “maximum of distress” of an unjust person at KD 17:

The just person is most free from distress (ataraktotatos), but the unjust person is full of the greatest distress.

Likewise, Epicurus depicts the benefit of justice as follows (U 519):

The greatest fruit of justice is freedom from distress.

As the greatest “fruit” of justice, freedom from distress is the consequence that results from the virtue of justice. Overall, the virtue of justice results in a maximum of freedom of distress in the same way as the vice of injustice results in a maximum of distress.

Starting with the making of compacts of justice, I conclude, some humans may develop the virtue of keeping such compacts unfailingly by learning to recognize fully, through the use of calculation (called epilogismos), the benefit of keeping them. This is the virtue of justice; and it produces maximal freedom from distress. As a result of this process, compacts of justice may be divided not merely conceptually, as proposed in the first section, but also temporally, into two kinds: non-legal compacts and compacts formulated as laws. Laws enforce compacts of justice by formulating them as decrees enforced by penalties.

3 The Virtue of Justice

This section aims to place the virtue of justice within a general view of the virtues. As Epicurus proposes in a very succinct sequence (Men. 132), the virtue of practical intelligence, phronêsis, is the foundation of all other virtues. It is, by nature, the source of all other virtues. He follows up immediately with an enigmatic distinction among three ways of life: living “with practical intelligence”, living “beautifully”(“in a fine way”), and living “justly”. These three ways, he claims, are inseparable from a pleasant life.^[49] This leaves the question: How are the three ways related to each other?

As I shall argue, they form a threefold division, consisting of the basic virtue of practical intelligence, together with two types of virtue created on this basis: personal virtues; and the communal virtue of justice. Practical intelligence underlies the rest by calculating how to obtain the goal of pleasure. There are two kinds of calculation: calculating for oneself the limits of one’s own conduct; and interacting with others to set a joint limit to each other’s conduct. The first kind results in personal virtues, as I call them; the second results in the social virtue of justice, conceived as a disposition to keep compacts of justice.

Epicurus has been leading up to his analysis of virtue from the beginning of his Letter to Menoeceus. Immediately before the threefold distinction, he explained that it is necessary to make a choice among pleasures and pains by making a comparative measurement (symmetrêsis) of what is beneficial and not (Men. 129–130). He also called self-sufficiency “a great good” (Men. 130). After dwelling for some time on the lure of profligacy, he opposed it to “sober calculation (logismos)”. This begins the sequence on the three ways (Men. 132). Because of its density, I have divided it into six components. They follow on each other without a break:

1. In place of profligacy, what creates (gennai) a pleasant life is “sober calculation (logismos), searching out the causes of every choice and avoidance, and driving out false opinions, out of which the greatest disturbance takes hold of souls.”

2. “Practical intelligence (phronêsis), is the origin of all these things (pantôn … toutôn archê) and the greatest good.”

3. “Therefore, phronêsis is more valuable than philosophy.”

4. “Out of it [i.e. phronêsis] all the remaining virtues have come to be by nature (ex … pephykasi)”

5. “by teaching that it is not possible to live pleasantly without living intelligently (phronimôs), beautifully (“in a fine way”, kalôs), and justly (dikaiôs), <nor to live intelligently, beautifully, and justly > without living pleasantly.”^[50]

6. “For the virtues are joined by nature (sympephykasi) with living pleasantly, and living pleasantly is inseparable from them.”

As de Sanctis (2010) has shown, phronêsis has central importance in Epicurus’ ethics. Even though the term occurs only here in Epicurus’ extant writings, Epicurus no more neglected it, as de Sanctis argued, than did an illustrious tradition of preceding and later philosophers, including his own followers. Merely as it stands in the Letter to Menoeceus, moreover, one can readily see that Epicurus could hardly have elevated it more highly. Underlying all other virtues, it enables us to “calculate” how to obtain a maximum of pleasure by both uncovering the “causes” of every decision and driving out false opinions. Technically, this power of calculation is called epilogismos, “appraisal”, as discussed in the previous section. Even though Epicurus began his Letter to Menoceus by urging philosophy upon everyone, both young and old, it now gives way to something even more valuable (c). The reason is that philosophy supplies correct theories to the practical endeavor of phronêsis as the means of putting us in possession of our goal. The initial priority of philosophy becomes subservient in the end to phronêsis.

It is, nonetheless, something of a jolt to have Epicurus give prominence to phronêsis as “the greatest good” (b). Earlier in the Letter to Menoeceus (128), Epicurus identified pleasure as the “beginning and end of a blessed life.” He also called it our “first and congenital good”, from which we “begin every choice and avoidance” and to which “we revert” as a standard for judging every good (Men. 129). As our first and final good, why doesn’t Epicurus call pleasure “the greatest good”?^[51]

As others have pointed out,^[52] the answer is not far to find: one needs to supply “of all these things” (b) from the beginning of the sentence, thus understanding phronêsis as the ability to calculate, in accordance with (a), what brings about the goal of pleasure. It is the “greatest good”, in short, because it is the greatest of all the goods that bring about pleasure as the “greatest good”. Herein lies a difference with self-sufficiency. It is indeed “a great good” (Men. 130). Partially dependent on circumstances, however, it is not the greatest of all our means to produce pleasure. That is the inner power of calculation, as practiced by the virtue of phronêsis.

It is worth jolting the reader into this realization. We may be passive, merely letting pleasure come to us; or we may be active, using our powers of appraisal (epilogismos) to achieve pleasure. As Philodemus indicates (in a text discussed in section 2), this is a source of a difference between the Epicureans and the many, who agree on the goal of pleasure, but miscalculate on how to obtain it.^[53] As Epicurus himself declares boldly, it is better to calculate well, even if we fail, than to calculate badly and succeed (Men. 135): “It is better to be unfortunate (atychein) in calculating well (eulogistôs) than to be fortunate in calculating badly”. Chance can get in the way of success. But the ability to calculate puts us, as rational beings, even above the mere, momentary attainment of pleasure.

As our “greatest good”, phronêsis has priority over all other virtues. The sequence (d-f) begins, clearly enough, by distinguishing phronêsis from all other virtues as the foundational virtue from which all the rest develop. This is a natural development, as signified by the term ex … pephykasi (d). Next, Epicurus claims, phronêsis teaches that it is both necessary and sufficient to live “in a practically intelligent way (phronimôs), beautifully (kalôs), and justly (dikaiôs),” in order to live pleasantly (e). The trio of adverbs is another surprise. So far Epicurus has said. nothing about justice; and, from what he has said, the reader expects kalon to be used in a general sense. Epicurus follows up with the explanation: “For the virtues are joined by nature (sympephykasi) with living pleasantly, and living pleasantly is inseparable from them (f).” Epicurus here adds that the virtues are linked naturally to a pleasant life, but says nothing about the trio or their relation to each other.

Epicurus’ trio receives only scant attention elsewhere in our sources. The anonymous author (possibly Philodemus) of a text known as On Choices and Avoidances (1995) refers to it, followed by another list (col. 14.1–8). I quote: … ”[it is not possible to live pleasantly] without [living] intelligently, beautifully (“in a fine way”, and justly, and, further, courageously, with self-control, with greatness of spirit, by making friends, and with love of mankind (philanthropôs), and in general with all other virtues.” The additions have been carefully chosen to give an overview of a uniquely Epicurean view of virtue. Using a more elaborate approach, Cicero inserts the trio in passing in On Ends (1.57) within an extended treatment of Epicurean virtues as consisting of the four Platonic-Stoic kinds: wisdom, temperance, courage, and justice.

Given the sparsity of the evidence, it is easy to dismiss Epicurus’ trio. Among those who have considered it, Giovanni Indelli and Voula Tsouna (1995, 176–77) distinguish the trio by separating out kalôs as a distinct type of virtue, “moral goodness”, differing from both practical intelligence and justice. Jan Maximilian Robitzsch (2024, 85), by contrast, suggests that it is possible to take all three attributes as synonyms, so as to form a hendiatris.^[54]

I shall suggest that Epicurus uses kalon both in a general sense, applying to all virtues, and in a restricted sense, applying to all virtues other than practical intelligence and justice. On this view, Epicurus uses calculation, in the technical sense of epilogismos, to separate out the common conception of kalon into a conjunction of three distinct types: the underlying virtue of practical intelligence, together with two types that develop from it. One of the two types, called merely by the generic term kalon, uses practical intelligence to draw limits to personal conduct; the other, consisting of justice, uses practical intelligence to make compacts to draw limits to social behavior. It follows that what makes justice naturally just (as claimed in KD 31) is ultimately its rational development as a virtue, conceived as an infallible disposition to keep compacts of justice.

Let us, first, look more closely at the general sense of kalon. It was commonplace to use kalon (with cognates) in a general sense to express approval for the way a person lives; and Epicurus, too, used the term in a general sense.^[55] It is especially relevant that he introduces the Letter to Menoeceus as dealing with the “elements (stoicheia) of living beautifully (“in a fine way”, kalôs)” (123). The general topic, it appears, is a “fine” life; but it is also worth noticing that it will be analyzed into its elements.

Two features stand out in the rather extensive evidence for Epicurus’ general conception of kalon: it is an object of praise in ordinary life; and it produces pleasure. On the first point, Epictetus (according to Arrian) cites Epicurus as saying (U 513): “… either to kalon is nothing or, if it is [something], it is to endoxon”.^[56] This term was widely used in the sense of “held in esteem” or “notable”. Cicero throws further light on this meaning in books 1 and 2 of On Ends. Translating endoxon by gloriosum, he explains (On Ends 2.48): “As commonly used, that alone is called honestum [Cicero’s translation of kalon] which is gloriosum in the reputation of the people (populari fama).” As he goes on, Cicero keeps reiterating the sense of being “praised” by the multitude, as opposed to being praiseworthy in itself (2.49-50). Latin gloriosum looks like a good translation; for it not only signals gloria (“glory”), but also reflects Greek dox-, which can signify either reputation or opinion. Yet there is a drawback; for gloriosum was also frequently employed in the negative sense of “boastful”. Cicero averts this sense, while at the same time denigrating Epicurean populism, by glossing gloriosum as praised by the many.

The second point ties kalon to pleasure. Epicurus declared: “One must honor to kalon and the virtues and such things if it produces pleasure, but must let go if it does not produce pleasure” (U 70). More vividly, he expresses disgust at those who fail to recognize so: “I spit upon to kalon and those who admire it emptily (kenôs) whenever it produces no pleasure.” Cicero’s spokesman Torquatus adds a sarcastic twist (On Ends 1.42). Those who place the final good in virtue alone, he says, are beguiled by the “splendor” of a mere word (cf. “shadow” at 1.61). Yet who would praise those “exceedingly beautiful (pulchrae)” virtues if they did not produce pleasure? On Epicurus’ view, the meaning of kalon is not a mere fad, kept afloat by the pretensions of a few, but consists of praising whatever produces pleasure.

There is good evidence, then, that Epicurus assigned to kalon the general sense of praiseworthy, as joined by the goal of pleasure. This is what he regards as the common conception of the term, which he called a “preconception”, prolêpsis. To recall Philodemus, the Epicureans share the preconception of kalon with the many, but differ on what fits the preconception; the latter needs to be figured out by epilogismos (“appraisal”).^[57] The first step, as it now appears, is to analyze the common conception itself, as illustrated at Men.132, into a natural union of three components, or “elements”, with a life of pleasure.

Let us now go back to the text. Epicurus first divides the virtues into two kinds: the basic virtue of phronêsis and “all the remaining virtues”, which are based on it (d). The text continues immediately with a division into three ways of living (e). This is, as I said, enigmatic. But there is nothing unclear about the division itself. Reinforced by rhyme, there are clearly three ways, joined grammatically with each other: “intelligently (phronimôs) and beautifully (“in a fine way”, kalôs) and justly (dikaiôs)”. The rhetorical embellishment might lull the inattentive into blurring these ways. This does not prevent Epicurus, however, from using sound effects to draw attention to each component as a distinct kind. Epicurus has already provided a clue, moreover, to making a distinction; for he has just separated out phronimôs from all the rest as the foundation of “all the remaining virtues”. How, then, do the other two ways, “finely” (kalôs) and “justly”, apply to the remaining virtues?

To live “justly”, as I have argued, is to observe a compact for a certain benefit. On Epicurus’ view, the virtue of justice is, precisely, an unfailing disposition to keep compacts of justice--nothing else. It does not look out for the good of another, no matter how wise the person, but secures a benefit for oneself by a compact for a reciprocal abstention from harming another. To live “justly”, therefore, is separate not merely from the foundational virtue of phronêsis, but also from all other ways of life that develop from it.

There remains the crux of the problem: living kalôs. Traditionally, there are many virtues, along with phronêsis and justice. In Platonic-Stoic thought, there is an intellectual virtue, together with courage, temperance, and justice. In Aristotle’s classification, phronêsis coexists with a large number of so-called character virtues, one of which is justice. Epicurus offers his own view of phronêsis and justice. Some of his followers, as we will see shortly, added temperance and courage; and one of them, as cited earlier in this section, lists many kinds in addition to the trio. The virtues that differ from phronêsis and justice do not have a common name. Yet, on Epicurus’ view, they have a common feature: practical intelligence teaches each person, for and by oneself, how to calculate a limit to personal fears and desires; and this is in contrast with the use of an interpersonal compact. For lack of a name, I suggest, Epicurus uses the generic name of kalon as a default for gathering these virtues into a distinct group. The result is a division of kalôs in general into three ways of life: phronimôs, kalôs in a restricted sense, and justly. The second kind, as shall call it, consists of “personal” virtues.

To illustrate, take Achilles. Ηe stands out in ordinary thought, not for his ability to calculate pleasures nor for the justice of not harming others, but, above all, for his amazing prowess as a warrior. One might also praise him for the way in which he chose, with the utmost courage, to stay at Troy even though he was doomed thereby to perish; or, if one prefers, one might praise him for his final reconciliation with Priam. Others might choose Nestor as exemplifying practical intelligence or, perhaps, justice. But neither qualifies as virtuous unless each exemplifies all three kinds, joined into a union with pleasure.

By contrast, take Epicurus. Even his opponents praised him for ignoring extreme physical pain, as he lay dying, by recalling with pleasure his conversations with his friends.^[58] They also praised him for his frugality and his devotion to others, whether by friendship, teaching, or the making of a will. At the same time, they accused him of an inconsistency between his theory and his actions.^[59] There is no inconsistency, as Epicurus sees it; for he wins praise for choosing the best way to obtain pleasure, including both personal and contractual virtue.

Epicurus offers a response in his way to both Plato and Aristotle. Instead of tying virtue to parts of the soul, he puts the faculty of reason in relation to one’s circumstances as a way of determining how to obtain pleasure. Epicurus makes use of Aristotle’s basic distinction between practical intelligence and the character virtues, but separates out justice from the rest of the character virtues, where it fits badly in any case.^[60] There is a kind of parallelism between Epicurus’ twofold use of kalon and Aristotle use of “just” in both a broad sense, embracing all character virtues, and a specific sense. Justice loses out to kalon as the overarching term, yet remains prominent in its own way as one of two main types of virtue that arose from practical intelligence.^[61]

Overall, Epicurus assigns a new sense of “natural” to the virtues. The virtues are not inborn, but develop naturally as a response of human nature to its surroundings. That is how the other virtues grow “naturally” out of practical intelligence (d, Men. 132) and how all three kinds are joined “naturally” to the goal of pleasure (f, Men. 132). The virtue of justice, in particular, is natural as the culmination of a rational development to keep compacts in response to circumstances.

Later, as attested by Cicero, some of Epicurus’ followers took it upon themselves to defend Epicurus’ analysis of virtue against the Platonic four-fold division, as recast by the Stoics into the dominant philosophical conception.^[62] Briefly, the defense presented in book 1 of Cicero’s On Ends seeks to show that Epicurus had the correct view of all four virtues as a means to the goal of tranquility, which is endorsed, too, by his rivals. Cicero does not seek to impose a threefold division; for this is beside the point. He takes the fourfold division as it is. Both temperance and courage fit Epicurus’ category of personal virtues; but, as Epicurus himself indicates in the Letter to Menoeceus , as well as KD 1–2, piety, or freedom from fear of the gods, has first place in the order of teaching; and freedom from fear of death comes next. The limits of desire, treated next in both the Letter to Menoeceus and KD 3–4, generate more virtues, prior to the mention of justice at Men. 132 and KD 5.

Scholars have raised the problem that, no matter how virtuous people are in other respects, not everyone can attain the virtue of justice; for it is contingent on the agreement of others.^[63] On Epicurus’ view, however, the attainment of all virtues is contingent on circumstances. An early death, for example, or a lack of education, or bodily infirmity, may prevent a person from ever attaining a life of pleasure. As Diogenes Laertius (10, 117) states the general position, one cannot “become wise in every condition of the body or every tribe.” One needs to keep in mind, at the same time, that what is necessary for justice is compacts, not laws. So long as individuals still make compacts of justice with one another, it is possible to acquire justice even if no laws are just. Compacts, too, may collapse totally, as envisaged by Lucretius after the discovery of gold. But, even in this case, there are grounds for optimism. For some individuals may still acquire a sufficient level of rationality and ability, as indeed happened according to Lucretius, to teach others to once again make compacts, now strengthened by their formulation as laws.^[64]

I leave aside friendship as a separate topic. Here, I touch on it only very briefly by touching on an especially intriguing text. At fr. 56 (Smith), Diogenes of Oenoanda depicts a counterfactual ideal. After pointing out that “all cannot” do so, he adds: “If we assume (hypothômetha) that it [autên] is possible, the life of gods will truly pass on (metabêsetai) to humans; for everything will be full of justice and friendship for one another (philallêlias)”, without any “need for walls or laws.” “It” is what “all cannot’” achieve; and this is very plausibly, as suggested by Smith, wisdom or a community of wise persons. Given, then, that this is impossible, what would happen? As has been pointed out by others, Diogenes does not explicitly exclude compacts; and it has been suggested that he admits them as either implicit or indirect compacts.^[65] In any case, as I have argued, there is, simply, no justice without compacts. But it is also worth noticing that Diogenes pairs justice with friendship, which is sufficient, all by itself, to assure that no one in the hypothetical community of wise persons will harm another.

Why, then, does Diogenes even mention justice? Friendship confers the benefits of justice without the use of compacts. A possible answer, which has a long history, is that Diogenes mentions justice in order to transform it, though only hypothetically, into something truly divine, unlike those traditional views of divine justice or Stoic justice. What I wish to stress is that, however divine, justice coexists with friendship as a decidedly human discovery. Although “the life of the gods will pass”, hypothetically, “to humans”, it is a way of life discovered by humans, not passed on to humans by the gods.

To sum up this section, Epicurus integrates the virtue of justice into a division of virtues into three types. Underlying all the rest is the virtue of practical intelligence, which calculates how to attain pleasure in response to circumstances. It is the source of two other types of virtue: personal virtues, and the social virtue of justice. The first sets limits to personal fears and desires; the second sets a limit to harming one another. All the virtues are natural developments of humans interacting with their surroundings. Among them, justice is a natural means of attaining pleasure by the use of a compact.

4 Conclusion

Epicurus offers a new conception of justice as a way for humans to attain their goal, pleasure. Humans develop their rational capacity, first, to devise the use of a compact to secure a reciprocal benefit and, at a later stage, to enforce such compacts by the use of laws. This is a progression, on the part of some individuals, to the basic virtue of practical intelligence. This virtue serves as the basis of all other virtues, which are divided into two main types: personal virtues, consisting of the use of practical intelligence to draw limits to personal conduct; and justice, using practical intelligence to draw limits to social behavior by means of compacts.

There are two features that are new about this conception: first, the separation of justice from laws; and second, the conception of justice as a natural development of the rational capacity of humans. Naturally, justice is not something divine, nor is it inborn in humans. Instead, humans develop compacts of justice naturally in response to their circumstances. Among them, some individuals acquire the virtue of justice as an infallible disposition to keep compacts of justice. It follows that what makes justice natural is the use of compacts. Social institutions are thus naturally posterior to the ability of individuals to use compacts as a means of obtaining one’s goal, pleasure.