May 21, 2013

The Limits of Human Justice

Last week, I posted on a conference at Hong Kong University, In Quest of Truth and Justice: The Role of Religion in Pluralistic Societies, and laid out the five propositions of the paper I presented. Since then, I've elaborated (albeit very briefly) on my first three points:

1. We are mistaken if we believe that "pluralism" means that there is such a thing as a purely secular society, where religious neutrality reigns.

2. Human beings ought to be free to pursue what is good, unhindered by state-sponsored barriers. This assumes that "plural"-- and sometimes conflicting-- visions of the Good will and must co-exist and interact in any given society.

3. Jesus is King over the whole world, even in the realm of public law and civil justice in every society.

Today, we continue the discussion with point four:  

Human justice is partial in a fallen world.

Even in ancient Israel, God placed limits on what His chosen people could punish. Some of those limits were clear accommodations to the fallen nature of human rulers, judges, and fact-finders. For example, God required that "any sin or offense" be adjudicated only on the testimony of "two or more witnesses." Why a blanket rule that will insure that some clearly guilty will go unpunished? Surely, it is to check human error, at least in part. In addition, such a rule protects those charged with the administration of  justice: if human rulers have limited authority from God, then certainly it is overreaching to punish the innocent.  

Incidentally, this highlights the importance of procedure to justice. Moral procedure is just as much "doing justice" as "substantive" rules and regulations. "Technicalities" are, more often than not, the very core of justice. Human justice is very much about process. And process is important, in large part, because it provides protection against human sin, prejudice, and mistake. 

In addition to moral process, we benefit from a diversity of roles and jurisdictions to check human error and sin across a variety of societal institutions in our fallen world. Just as checks and balances check overreach within the branches of the state, jurisdictional separation of, among, and between civil institutions tends to check human error.  Because all authority in heaven and on earth is granted to Christ through the Father-Creator, human authority is purely derivative, and therefore must be exercised only under warrant from  Him. Families, the Church, congregations, employers, and individuals, for example, all owe duties one to another based on the authority granted them. All human beings and institutions are under authority, exercising only that which God has given. 

There is of course room for disagreement on the limits of our delegated authority, the means of discerning it, and the ways it may be carried out, but placing human law and justice within the framework of "authority" and duty before God can go some way to correct the misunderstanding that law is all about social power. Law is not merely a tool for social engineering, but about moral order, and once we realize that, the public questions can shift to “which morality?” and "what is good?" rather than the much less helpful (and much more common) questions about whether morality is relevant to public justice. 

All of this takes place in a context of competing visions-- various institutions in tension with overlapping duties and spheres of authority, competing conceptions of the Good, and political mechanisms interfering or assisting in providing answers, for example. Yet it seems to me crucial that we embrace a religious commitment to the ideal that, first, there is such a thing as perfect Justice, and that the source of that Justice is outside of humanity. Second, and equally important, we need to embrace the truth that we humans cannot accomplish perfect Justice, and that our efforts are not only imperfect in a fallen world, but impermissible if they overreach our God-given authority. Tools such as moral procedural rules, diversity of jurisdictions, wise rules of evidence, and limited power, serve these truths. 

Rejecting these truths results in a variety of evils, including despair on one hand and a faulty confidence in the state on the other. 

On the one hand, among the idealistic, despair can creep in. It's easy to see the sin and corruption of human justice and public institutions. Yet we shouldn't be surprised by the consequences of the fall that we see in our own lives every day. And it is surely a sin to despair of even limited justice in this world. In fact, it is our duty do the justice that can be done, and put our concern for ultimate Justice in the hands of the One Who will one day wipe away every tear and right every wrong. Without this belief, of course, there is no reason NOT to despair: there is no real Justice, only proximate justice. Yet we do our duty in the world to imperfectly administer a limited justice in the hope of eternal Justice.

Incidentally, I think this tendency to despair is fostered in law school. Most profs tell us that there is no transcendent source of law, that there is nothing other than the social engineers at the heart of the matter, making laws as they see fit from time to time. If all of this is true, then despair is surely warranted!

On the other hand, among the cynical-- or powerful, perhaps, lies the opposite error. In the words of political philosopher, J. Budziszewski, "One of our strongest motives to do wrong is to make everything go right." What We Can't Not Know, at 67. 

In short, if we believe that human beings can effect perfect justice, we begin to have corrupting visions of the state. When we try, through power, to do everything that is good, making everything right, we have all at once ignored the truths that we are both limited and sinful. 

The implications of the limits of human justice are vast, but I'll stop here for now. I'll post part 5 on Friday next week.

Suggested resources on this topic:

Thomas Aquinas, Summa Theologica, II-II, 20.4
Craig A. Stern, Crime, Moral Luck, and the Sermon on the Mount 48 Catholic U Law Rev 801
Josef Pieper, Leisure, The Basis of Culture (1948)
J. Budziszewski, What We Can't Not Know (Rev. ed. 2011)

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