(An outline of a talk given at Montfort Academy, Katonah, New York, on April 2, 2005)
WHAT ARE THE FEATURES THAT MAKE A CITY?
Closeness and permanence.
Complexity.
Common background and future.
Public life.
Complete society.
Aristotle: man is a zoon politikon.
WHAT IS LAW?
How are things set up from the standpoint of what people owe each other and what they can expect from each other? When are those things enforceable? How do you enforce them?
Thomas Aquinas: “Law is an ordinance of reason for the common good, promulgated by him who has care of the community.”
Laws are rules governing a city. They correspond to the features that make a city. Close and permanent relationships that extend to the whole of life means law has to be firm, reliable, stable, knowable, comprehensive, flexible, just.
Those things can conflict. “Firm” and “flexible” and “just” don’t always go together.
JUSTICE IS IMPORTANT
Order can’t just be based on force. Things have to be settled and people have to accept the way they’re settled as right. If they think the law’s right and makes sense then they’ll be willing to obey it and they’ll know how to obey it.
Augustine: “Take away justice, and what are governments but great confederacies of robbers?” Confederacies of robbers don’t last. Thieves fall out.
Sir Francis Bacon: “If we do not maintain Justice, Justice will not maintain us.”
So a legal system should be a system of justice. That’s what’s right, and it’s also necessary for the system to work. The point of a system of justice is to establish justice, to determine what it is and to see that it’s applied. It’s a human thing, though, so the justice will be limited.
WHAT IS JUSTICE?
Giving each his own.
What is “his own”? How do you decide?
Consensus and custom. Precedent. Generally accepted principles.
Contract.
Positive law. What the legislature says. Majority rule.
But what should guide the legislature? And why should anybody pay attention?
What works best. But what does “best” mean? Assassinating troublemakers?
Sense of justice. But is that just a feeling?
Natural law. It seems that law has to refer to some standard beyond itself and beyond what we believe and want. Benjamin Disraeli: “Justice is truth in action.” But how do you find truth?
We find natural law by experience and reason. Observing things, thinking about them, discussing them, seeing how they work out. Tradition and common consent, both local and of all peoples.
What are some examples of natural law? Self-defense. Perform contracts. Reap what you sow. Marriage and basic family obligations.
How about revelation, as in Jewish law, which is based on the law of Moses? Christianity distinguishes the things of Caesar from those of God., and Christian morality is basically a matter of natural law Justice is a natural virtue. Our laws reflect our own habits and reason.
Catechism: “Society ensures social justice when it provides the conditions that allow associations or individuals to obtain what is their due, according to their nature and their vocation. Social justice is linked to the common good and the exercise of authority.”
The Catechism describes the common good as “the sum total of the conditions of social life which allow people, either as groups or individuals, to reach their own perfection more fully and more easily.”
So the idea seems to be that social justice prevails when government acts and legislates in accordance with what people are and what they should be able to do, so we can all reach our perfection.
Note: a lot of people disagree. They say the purpose of law is to keep people from infringing each other’s rights and not to promote the common good. Your idea of human nature and the common good may be oppressive to me. But the law always presents some understanding of those things.
HOW IS JUSTICE MADE A SYSTEM?
Substantive rules.
Define source of what counts as justice:
Common law (custom and precedent)
Legislation
Super legislation (constitutions, treaties)
Natural law, principles of justice. Most used as ideals or interpretive principles.
Procedural rules. Step back from conflict and try to be fair and just. Also develop facts and rules in an orderly way.
Very important. What are the facts? What principles apply?
Court, judge, notice, hearing, confrontation, counsel, burden of proof, appeal.
Arguments over both facts and law.
Terri Schaivo case.
LIMITS OF LAW
Law and a system of justice are necessary. But are there limits?
Distinction of Christ and Caesar suggests that there are. Augustine: City of God and City of Man. Can’t completely separate law, justice and religion but they aren’t the same. Contrast Islam.
It’s a general Catholic principle that sometimes you permit bad things because worse things will happen if you try to do away with them.
Thomas Aquinas says that the law should not require more of a people than they are able to do, as they will lose respect for the law.
Also, there can be evil laws. It’s difficult to know what to do about them. Should we treat them as laws at all? On the whole, we should obey the laws even when they don’t make a lot of sense because lawfulness is necessary for living together. Saint Paul’s “be subject” to Nero. Still, law must at least not require us to do something against morality. A law that required killing innocent people wouldn’t be binding and wouldn’t really be law.
Order and justice in the end have to do with human beings and not just laws and institutions. People’s acts have an effect and it’s injustice to deprive them of it. It doesn’t work—communism, socialism, even welfare state.
The life and order of the city is a matter of participation and not just compulsion. So it’s not enough to talk about rights, you also have to talk about responsibilities, duties and virtues. Social justice is an ideal rather than something that’s normally part of the system of justice. Working toward it is a political and moral matter. It takes discussion and participation to understand and bring about.
Kant didn’t believe that: “The problem of the institution of a State, however hard it may appear, would not be insoluble even for a race of devils, assuming only that they have intelligence.” Not so. The law can’t be a universal machine that does everything.
Justice as a virtue means steady will to give others their due. Legal justice won’t work without that. Pius XI in the 1937 encyclical, Divini Redemptoris: “It is of the very essence of social justice to demand from each individual all that is necessary for the common good.”
To some extent grand principles become part of US constitutional law and international human rights law enforced directly by courts. That hasn’t necessarily been successful. Abortion cases. When courts take on general issues of social justice they view them from their own perspective. Courts are part of the government and they function by giving orders.
A couple of sayings on the limits of the law:
Benjamin Disraeli: “When men are pure, laws are useless; when men are corrupt, laws are broken. ”
Grant Gilmore: “The better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb . . . . In Hell there will be nothing but law, and due process will be meticulously observed.”
LAWSUIT, n.: A machine which you go into as a pig and come out as a sausage.
ALTERNATIVES TO SYSTEM OF JUSTICE
A system of justice is good, but you can’t expect too much of it. Lots of injustice can’t be rectified without worse injustice. The system itself causes injustices. You also need other things, for example justice as a virtue among the people.
Is our legal system too big?
A million lawyers. Over 30,000 state court judges. About a thousand federal judges. Libraries full of laws, regulations, court opinions, administrative rulings, treatises and whatnot. Maybe 20 million court cases a year.
Too much reliance on justice as a system of compulsion and too little on justice as a virtue.
Not everything should be a federal case. People take care of stuff on their own. Informal systems and social pressures. Arbitration.
Plato’s Laws—death penalty for lawyers.
Confucian view.
Subsidiarity. Pius XI: “Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.”