Law and Morality
Law and Morality
In the modern world, morality and law are almost universally held to be unrelated fields and, where the term "legal ethics" is used, it is taken to refer to the professional honesty of lawyers or judges, but has nothing to do with the possible "rightness" or "wrongness" of particular laws themselves.
This is a consequence of the loss of the sense of any "truth" about man, and of the banishment of the idea of the natural law. It undermines any sense of true human rights, leaves the individual defenseless against unjust laws, and opens the way to different forms of totalitarianism. This should be easy enough to see for a person open to the truth; but many people's minds have set into superficial ways of thinking, and they will not react unless they have been led on, step by step, to deeper reflection and awareness
The right relationship between law and morality
Law and Morality do not coincide in meaning, though there is - there should be - a necessary interdependence between them. Moral law distinguishes right and wrong in (free) human actions. It is aimed above all at personal improvement and ultimately at salvation.
Political-civil law is aimed at making it possible for people to live together in community: in justice, peace, freedom. Its concern is not directly supernatural, although in creating the conditions for true justice and truly human behavior, it indirectly favors it.
Human civilization is not possible without law and morality, standing in right relationship. The growing modern crisis of the West, shaking its culture and civilization to its foundations, stems from separating both, seeing no necessary relationship between them. But this is to relativise justice and truth in human relations, and to reject any concept of objective truth capable of uniting men. The bond of unity between men is tenuous when they simply share material interests; this is an association of self-interests (always prone to clash). Unity goes deeper and is stronger against potential divisions when people have common values to look up to: shared truth, patriotism, religious faith...
Law
"Law", according to the Encyclopedia Britannica, "refers to the specialized form of social control familiar in modern, secular, politically organized societies". The thomistic and christian view understands law otherwise: "it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated" [1].
The purpose of human law is the common good more than the good of individuals (I-II, q. 96, art. 1). It is to establish a certain order, so as to protect social living.
Without law, there is no society, only the jungle, the rule of might "If there is justice, and if law is based on a discernment of what is just, dialogue can begin and benevolence can appear; so we come to what is ours in common. The first form of culture is law. Its effectiveness means that barbarism has been overcome: men have always been civilized this way" [2].
Morality
Ethics or morals is the study of what we ought to do; i.e. what is the right way to act and what is the wrong.
Fundamental moral concepts such as right and wrong are necessarily universal. If they are treated as relative and subjective, then they become inapplicable to the social sphere; and hence to the whole area of human law. If what is wrong to me may legitimately be right to someone else, then one may perhaps debate the opportuneness of this or that law, but not its justice.
Without an interior sense of a moral order, there can be little respect for the law; for this can only come from feeling oneself bound from within to observe the law. Here we note that the almost universal modern concept of law as a system of rules created by the state - which ensures its application through a system of courts and a coercive power - leaves the law without any interior appeal or authority, except insofar as one may recognize the need for some minimum of common rules. It also exposes the individual to the tendency to regard the law as purely external imposition to be evaded, if one can, whenever it is considered personally inconvenient.
The purpose of morality is to ensure the uprightness of individual conscience (the law cannot force a conscience to be upright). Yet christian morality is not individualistic; it leads one into community.
Law and freedom
Both law and morality imply human freedom. Clearly, without freedom one cannot speak of morality. But the same holds for law, for if it were automatically and not freely obeyed, men would be mere robots. Law is not a simple indication of what happens, such as the law of physics; it is an admonition to free persons about what they are required to do if they wish to live freely and responsibly in society; and it normally carries with it a sanction or punishment to be imposed on whoever is shown to have acted against given norms of conduct. Just law, properly understood, appeals to freedom.
Nevertheless one of the most generalized liberal ideas is that law is by nature the enemy of freedom. Servais Pinckaers holds that Catholic moralists have gone through many centuries under the influence of this mentality which has led, by reaction, to the anti-law approach of much of contemporary moral theology. In this view, law and freedom were seen as "two opposed poles, law having the effect of limitation and imposing itself on freedom with the force of obligation. Freedom and law faced each other as two proprietors in dispute over the field of human actions. The moralists commonly said, "Law governs this act, freedom governs that one..." The moralists were traditionally the representatives of the moral law, and their mission was to show to conscience how to apply it in a particular situation, in a "case of conscience". Today we witness a strong tendency to invert the roles; the moralists now regard themselves as defenders of freedom and of personal conscience" [as against the law] [3].
Law and justice
Law cannot attempt to regulate the purely interior sphere of personal conduct; morality can. Human or civil law is connected with external actions, precisely insofar and because they impinge on the rights or lawful actions of others. Hence the necessary connection of law with justice. For the regulation of interpersonal relations must work from the basic principle of justice: "to each his due". Hence arises the fundamental question of what is due to each one, and from this the further question of human rights.
To each his due. Something is due to each. This is the sense of equality before the law. "The possibility of giving his or her due not only to a relative, friend, citizen or fellow believer, but also to every human being simply because he is a person, simply because justice requires it, is the honor of law and of jurists. If there is an expression of the unity of the human race and of equality between all human beings, this expression is rightly given by the law, which can exclude no one from its horizon under pain of altering its specific identity" [4].
Even for those who see law and freedom in mutual opposition, the whole concept of law is essentially connected with that of justice. The ancient principle lex iniusta non est lex (an unjust law is not a law), is at the basis of so many modern protests in the name of freedom. "This law is discriminatory, therefore it is not just". But justice is a moral concept; so these protests bear out the intrinsic connection between law and morality,
"There is another crucial link between the virtues and law, for knowing how to apply the law is itself possible only for someone who possesses the virtue of justice" [5].
'The law must respond to "living situations"...' Very good, but not in the sense that it must take the situation as its norm. Justice must remain the norm, and sometimes the law must regain ground for justice.
Basis and justification of law and authority
Social harmony, among persons capable of free choice, and hence of justice or injustice towards each other, is not possible without law. But whence do we derive the authority of the law?
a) does its force come simply from itself, from the fact that it "is there", legislated or imposed by the powers that be? or:
b) can one find a principle by which to show that its authority comes also from within, and so its force can be interiorised?
The first view has been proposed since ancient times. In Sophocles' Antigone, Creon, the king, wishing to justify his tyranny: "whomsoever the city may appoint, that man must be obeyed, in little things and great, in just things and unjust".
Hobbes held that: "Auctoritas, non veritas facit legem" (Authority, not the truth, makes the law) (Leviathan, ch. 26). This is reflected in the program for life which Goethe's Mephistopheles, the demon-spirit, proposes to men: "You have the Power, and thus the Right" (Faust, Pt. II, Act V). In this view, law loses all interior force, it becomes essentially coercive; its force deriving mainly from the threat of its sanctions.
This view is held by those who profess an extreme positivism, rejecting any concept of a natural law binding on all men. In a well-known lecture in 1897, Oliver Wendell Holmes (1841-1935) [6], then a justice of Supreme Court of Massachusetts, sought to reduce the whole function of the law to a simple indication of what the courts will do, or a person may have to suffer, in the event of a particular mode of conduct. "A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court... The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law... The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it - and nothing else" [7].
This immanent view makes the law justify itself. What is enacted in law must be obeyed. This leaves one without any grounds for objecting to a law, except one's personal dislike. There is no common court of higher appeal.
An apparently "democratic" version of this is that the authority of the law comes from the people: i.e. from the majority. But this still leaves minorities with no basis for any rights except those that the majority (or the manipulators of the majority) grant them [8].
Natural Law
The only true alternative to positivism is the view that the authority of the law derives from what man is; and that man can find within himself a measure of the rightness or wrongness of the law.
This view of the law goes back to the most ancient times; it has been the common wisdom of the ages. Among the Romans, Cicero taught: "The rule of law is to be drawn from the inner nature of man" [9]. And so St. Thomas Aquinas: "Every humanly conceived law has the true character of law insofar as it is derived from the law of nature. If in some respect it diverges from the natural law, it is no longer a law but a corruption of the law" [10].
The Nuremberg trials after World War II seemed to promise a revival of the notion of the Natural law, standing higher than any state law. But this tendency was soon strongly countered by the positive school dominant in modern jurisprudence, perhaps because it was realized that the natural law necessarily points to a higher authority than man himself, governing all the affairs of mankind.
The Encyclopedia Britannica, in an article entitled "Law, morality and natural law", treats of the natural law very marginally and almost dismissively. "The attempt to base norms on some such category of facts [about the nature of man and his adjustment to the world] has for two millennia been associated with the concept of natural law... It has always been possible to trace a mainstream of natural-law thought, flowing from Aristotle's premise that the "nature" of any creature, from which obligations must be derived, is what it will be in its fullest and most perfect development. For man, this means what he is when the powers and qualities distinguishing him from other creatures, namely, his reason and his impulse to social living, are fully developed. Natural law embodies those obligations that will appear if mankind's reason and sociality are fully unfolded. A major difficulty presented by this attempt to develop normative standards appears to be that it is very difficult to demonstrate, let alone create a sense of obligation towards values that are only immanent".
Comment: the implication - that it is easier to demonstrate the worth of material or external values - is not evident. One simply cannot prove by any empirical means the worth of values nor can one demonstrate which are higher among them. Either one holds that any scale of values is entirely subjective, or else allows that certain immanent values or norms (the desire for truth or justice, the sense that the truth can only be one, and that justice means "to each his due") are present, however submergedly, in all men.
As John Paul II stated to the "World Jurist Association of the World Peace through Law Center", "Among the primary aims of law must be to ensure that each person receives his due, at every level of social life... The whole history of law shows that law loses its stability and its moral authority... whenever it ceases to search for the truth concerning man. The tragic consequences of disregard for truth have been especially evident in our own century, in regimes which have sought systematically to suppress the truth, presuming to deprive people of their inalienable rights in the name of some higher justice, or showing a readiness to sacrifice the rights of individuals to the rights of the State and its programmes" [11].
To quote Servais Pinckaers again: "The modern era is characterized by its subjective conception of rights, as formulated by fourteenth-century nominalism. From that time on, rights refer not to what I owe others, but to what others, and society, owe me. Rights have changed hands: I think now in terms of my own rights, not those of others. The fundamental orientation of justice has been reversed: the burden of the debt falls on others, not on me. Justice no longer implies a quality of soul, a movement outward toward others; it concentrates on the defense of external rights. In this sense it is a matter of taking rather than giving. The change accelerated with a new conception of the person's relation to society. This was no longer based on a natural human inclination but became instead an artificial creation, set up to meet human needs and to prevent destructive rivalry. Under these conditions the relation between justice and charity degenerated, with consequent serious problems. Since the two were now moving in opposite directions, the one giving and the other taking, these virtues could no longer operate harmoniously. Justice, with its stronger, more immediate claims, left little to charity but a supplementary generosity, which could easily be included among the duties of justice as far as the law allowed. As a result, Christian terms such as charity, bounty, mercy, benevolence, and almsgiving were considerably devalued" [12]
Pope John Paul II, in Evangelium Vitae (1995), says that in order to save true democracy and freedom, "there is a need to recover the basic elements of a vision of the relationship between civil law and moral law, which are put forward by the Church, but which are also part of the patrimony of the great juridical traditions of humanity" (no. 71).
The denial of any common natural law utterly undermines any philosophy of human rights. Pope John Paul insisted that it can lead to "totalitarianism [which] arises out of a denial of truth in the objective sense. If there is no transcendent truth, in obedience to which man achieves his full identity, then there is no sure principle for guaranteeing just relations between people. Their self-interest as a class, group or nation would inevitably set them in opposition to one another. If one does not acknowledge transcendent truth, then the force of power takes over, and each person tends to make full use of the means at his disposal in order to impose his own interests or his own opinion, with no regard for the right of others" (Centesimus Annus, (1991), 44).
We see this illustrated, for instance, in Rousseau's philosophy. He bases society, not on man's nature, but on a concurrence of individual wills becoming the general (collective) will (his "contrat social"). This type of liberalism has in it the roots of democratic totalitarianism.
Alistair McIntyre says that any sincere claim that the institutions of law embody the virtue of justice "represents the appeal to an absolute standard that lies beyond all secular and particular codifications. On this medieval view, as on the ancient, there is no room for the modern liberal distinction between law and morality, and there is no room for this because of what the medieval kingdom shares with the polis, as Aristotle conceived it. Both are conceived as communities in which men in company pursue the human good and not merely as - what the modern liberal state takes itself to be - providing the arena in which each individual seeks his or her own private good" (After Virtue, p. 172).
Right or wrong have to be proposed, proved, judged upon. According to what standard? Simply according to what the law has to say? But then can a law itself be judged right or wrong? We are always brought back to the question of the legislator's or judge's standards. If he cannot find them in the written law itself, then he necessarily derives them from other discipline or mental position.
Either one comes back to a truth, true for all; or there is no such thing as truth or justice or objective right or wrong; and there is no basis, except force, to resist positive law.
St Thomas taught that men have a connatural inclination to understand what is right and wrong according to their nature. This he called "synderesis". The Encyclopedia Britannica objects: "To derive from this synderesis a universal natural law, however, it would be necessary to demonstrate some "universal conscience" of all mankind. But natural lawyers faced with the fact that men's consciences do not coincide explain that conscience may err and reason be corrupt. Invocation of synderesis is in fact helpful not as an account of how one may arrive at actually based normative standards but as an illustration of the psychological tendency of men to assert values".
Comment: but does this well-nigh universal "psychological tendency" not also provide a factual base?
The relationship between law and morality
The positivist school would maintain an absolute separation, holding there is no relationship. The Encyclopedia Britannica sidesteps this issue. In a section "Law, Morality and Natural Law", it states: "A consideration of fundamental importance in the philosophy of law is that of the distinction between law and morality. The importance of the distinction is illustrated by the main questions to which it gives rise: (1) How far and in what sense should the law of a community seek to give effect to its morality? (2) Is there a moral duty to obey the law even when it does not embody morality, and, if so, are there any limits to this duty? (3) When a legal rule directs conduct that morality forbids, which should the citizen obey? (4) Is there ever (and, if so, when is there) a duty to overthrow an entire legal system because of its conflict with morality?"
Comment: The questions listed are important and well put. But, rather than rising out of the "distinction" between law and morality, they presuppose the essential connection between the two, and illustrate the difficult questions that may arise from this necessary relationship.
The answer given to the first question will depend on one's notion of the nature and purpose of law. Here the thomistic understanding differs very fundamentally from the notion inspiring much of Anglo-Saxon jurisprudence. "Thomists believe the purpose of law is to promote virtue: in the social contract theory underlying Anglo-Saxon jurisprudence, the law represents the minimum infringements on personal liberty necessary to regulate social life" [13].
Is there a moral duty not to exceed the speed limit in all circumstances? Is there a moral duty to pay all of one's taxes if one knows that part is used to support immoral public programs (abortion services, etc.)?
The answer to the third question is clear: one must obey God (and one's conscience) rather than men.
The fourth question is really if and when there may be a duty to overthrow an unjust regime. The answer will depend principally on the degree of injustice and on whether it can be changed by other non-violent remedies, bearing in mind that violent remedies tend to lead to other injustices and further violence.
Hadley Arkes, Professor of Jurisprudence and Political Science at Amherst College, offers a very logical criticism of the position that would totally detach law from morality. I will quote the Introduction at length, inserting at some point just a brief comment:
"In the opening passage of the Politics, as Aristotle begins to explain the nature and ends of a polity, he takes care to make the elementary point that 'men do all their acts with a view to achieving something which is, in their view, a good'. Whether we seek to change any state of affairs or to resist change..., all of our actions imply at least a rough understanding of the things that are, in general, good or bad, better or worse. When we contemplate those things that stand, universally, as good or bad, justified or unjustified, we are in the domain of morals (or ethics); and as Aristotle understood, the matter of ethics is, irreducibly, a practical concern: ethics involves an understanding of the standards that ultimately guide our practice or the activities of our daily lives.
Those standards, of necessity, are abstract; if they were not, they could not be universal in their application. There is nothing "empirical" about them, and yet no practical action may be taken in our daily lives, no decision may be made between one course of action or another, without looking outward [or also inward?] to these general understandings about the things that are right and wrong, just and unjust...
But as Aristotle recognized, [certain moral presuppositions] also constitute the foundation of politics and political understanding. It was the mark of Aristotle's own understanding that his work on the Ethics immediately preceded and formed the groundwork for his treatise on politics. At the end of the Ethics, Aristotle derided those Sophists who sought to teach what was desirable in politics simply by making a compilation of all existing laws and constitutions and affecting to choose "the best" - as though the choice of the best would well up from the list, without any need to reflect on the principles of judgment. For it was only from the principles or standards of judgment that the distinction between the good and the bad could finally be drawn. In politics we are faced with the task of legislating, of making laws that are binding on whole communities. The act of legislating would stand out as a massive act of presumption unless it were understood that there are in fact propositions with a universal reach, which can define what is good or bad, just or unjust, for people in general. If that were not the case, if those principles of justice did not exist, it would be impossible to show why it should ever be justified to restrict the freedom of individuals and displace their private choice with the imposition of a common law.
The central questions in politics [and in jurisprudence] are questions about the nature of justice, and the people who spend their lives talking about political events - whether they are historians, economists, citizens, or philosophers - all find themselves casting judgments. They will offer judgments about the kinds of public policies that are right and wrong, about the revolutions in this world that are good or bad, and about the kinds of political regimes that are just and unjust. And yet, to place one set of laws or one political order above another, to arrange things in a hierarchy of preference or desirability, is to render a judgment that is distinctly moral...
In short, the judgments on politics that seem to be offered so widely and emphatically today would have to imply the existence of moral principles, the principles on which moral judgments would have to be founded if they are to be regarded as valid or comprehensible. But ... the paradox of our own day is that these political judgments are offered most intensely at a time when more and more literate people have become convinced that there are no principles of morals and justice in the strictest sense. They have become convinced, that is, that there are no propositions about the nature of right and wrong which are both universal and true, and which therefore hold their truth across cultures. Anyone with experience in the academy will recognize that moral "relativism" has become the secular religion these days among those with a college education. In this persuasion, moral understandings are replaced by "values," which are regarded as "good" and valid only because they are "valued" by the person or the culture that holds them."
Comment: Some people would see in a "value system" a possible replacement for a "moral system". This is to confuse notions. A value system implies an order of goods, whether subjectively or objectively appreciated, whether derived from reason or faith, or from both. In itself it does not enter the field of morals, though it may lead to it. A moral system, which must accompany any belief in free choice, implies the possibility of acting "rightly" or "wrongly", for or against one's personal system of values (however subjectively these may be held). If, say, friendship or sincerity forms part of one's "value system", it takes only elementary self-awareness to realize that one can treat the value as it deserves, i.e. as one should; and that is to step from the mere intellectual awareness of something to be valued, to the moral awareness of how it can be treated well or badly, rightly or wrongly. If one has no sense of duty towards one's values, no sense that one should be a reliable friend or a sincere companion, then one cannot claim to possess any real "value system" at all.
But let us continue with Professor Arkes' Introduction:
"Even among those who recoil from moral "relativism," there is a disposition to think that moral understanding depends on certain religious beliefs, which must be accepted on faith, and which cannot be verified ultimately by reason... In the circles of those who discuss high-minded things, the most widely traveled fallacy these days seems to be the notion that the presence of disagreement on matters of morals must indicate the absence of universal truths. Yet, it is not uncommon for mathematicians to disagree over proofs and conclusions, and nothing in their disagreement seems to inspire anyone to challenge the foundations of mathematics or to call into question the possibility of knowing mathematical truths. The challenge is not offered, the doubts are not registered, because it is understood that mathematics rests on a body of axioms that guarantee the existence of some right answers. It seems to be merely assumed, without critical reflection, that mathematics is somehow different in that way from moral understanding. In that respect, our modern outlook depends on a critical act of forgetting ... that there are axioms or first principles in the domain of morals as well as in mathematics; that those principles are virtually indifferent to variations in culture and geography, in the same way that the law of contradiction is indifferent to the distinction between London and Istanbul; and that in morals, as well as in mathematics, the presence of axioms or necessary truths makes it possible to have some right answers...
The central problem, of course, involves the ground on which we can claim to "know" the existence of morals or any truth of moral standing. That question is posed to us in the most dramatic and consequential way in politics, because in politics people are being committed through the exercise of authority: they are being obligated to obey, to respect as law, policies with which they may deeply disagree. That state of affairs presents the sternest test of the question of whether those who make law for others are acting merely on the basis of their own self-interest, or whether they are legislating on the basis of propositions that are indeed valid and binding for everyone.
But there is always the possibility of a tension between self-interest and morality, between the things that may give us pleasure and the things that we are obliged to do out of a respect for the commands of moral reason. In fact, there would be no real meaning for morality in our language and our lives if morals were reduced simply to those things which accorded with our own self-interest... Any moral principle will come into conflict, at one point or another, with someone's self-interest. And that is the perennial problem for the polity as it faces the need to legislate on any matter, not merely on questions of war and abortion...
... as Kant remarked, "the idea of law ... is present only in a rational being." That is to say, only a being possessed of reason would be able to conceive, in the first place, the notion of a "law" or moral rule which may be in conflict with his own self-interest. But that is simply to recall the connection between morals and law that was made at the very beginning of political philosophy: In the first pages of the Politics, where Aristotle set out to explain why a polity is necessary, he explicitly rejected the rationales that were to become familiar and dominant in our own day. He rejected the contention that a polity can be justified by the need to provide security against assaults and to promote commercial intercourse. What he argued instead was that the case for polity arose decisively, preeminently, from the existence of morals itself - and from the nature of a being who had the capacity for morals.
It is a measure of the erosion in our own intellectual tradition that this original understanding of the foundations of law and polity may come as a surprise to most of our educated classes today, even though it was firmly settled among the literate in the middle of the last century. What is even more sobering is that this ancient teaching is likely to be quite as unfamiliar to most of the men and women who fill out the judiciary. It would be no small step toward the restoration of our own, best tradition - and no mean entry into the "first principles" of morals and justice - if we recalled, in the first instance, this original case for polity and the classic understanding of the connection between morals and law" [14].
Now, with many thanks to Professor Arkes for that rich contribution, let us develop some further reflections.
The clash of law and morality
Such a clash is not logical among jurists. The logical thing is for the jurist to seek the moral basis (at least in terms of justice) to every law, for without that basis, it cannot be a just or legitimate law.
"To each his due" is the norm of law; but that demands objective evaluation. It cannot mean "to each what he holds or claims as his due". Society is not possible if "rights" are defined subjectively, and law courts tend to uphold such subjective definitions. But this is the current trend.
A dominant principle underlying much of modern popular psychology is that man identifies himself in complete freedom; he is a subject of "self-identification" or "self-definition". This tends to permeate education, and is reflected at the highest level of contemporary civil jurisprudence, being set forth as a basic principle of the majority judgment in the 1992 U.S. Supreme Court Case, Planned Parenthood v. Casey: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" [15]. It follows that every individual is his own project: also in the sense that in designing himself there are no given norms to follow. He builds from scratch, as he chooses, freely using the materials and situations of life so as to achieve his own project.
One of the sayings of Oliver Wendell Holmes was, "the only rule of the law that I know is the will of the majority". But majority rule is already a relativization of the rule of law. Why should not every minority claim to have their minority rights respected, even to the extent of having their own minority laws? And why should this not apply even to a minority of one? It is inevitable that we reach such a position once every objective and universal concept of truth, morality and justice is rejected. We are reaching it today.
The greatest degradation and instrumentalization of the law is shown in the "principled" rejection of the need to base law on morality. A jurist - lawyer or judge - without a principled sense of justice cannot be a good jurist.
Responsibility of civil authorities towards public moral order
Such a responsibility exists, although some would deny it. Because there is a public moral order just as there is a private one.
Today everyone accepts that governments and laws must be directed towards preserving a healthy environment that does not harm or contaminate men's physical state. It is becoming more than appropriate to appeal to "ecology" (defined as "study of relationships between organisms and their environment") to help people reflect that man's interior state can also be contaminated and needs a non-contaminated and non-exploitative moral environment.
Civil law penalizes theft or arson because they are "wrong", they infringe the rights of others. It similarly treats blackmail, where the harm threatened may be more interior. Most legal systems still penalize the teaching of e.g. racial hatred to children, because it warps their minds; and the peddling to them of drugs, because it undermines the normal development of their will (creating freedom-less persons, more and more incapable of resisting their addiction). The same should be true of the peddling of pornography; its harm is not simply that it "shocks" some people, but that it obsesses and takes away freedom, especially the freedom to love.
The law is on the side of freedom - of freedom to know the truth that liberates
Hence the challenge to all thinking jurists: to restore law to its place of dignity: worthy of respect, and a stimulus to a free response. What must be sought is a basis which can be seen to be common to all men, and which carries with it is own internal appeal. This is an attractive goal. Here it is so important to believe in the power and attraction of the truth.
That great jurist, Sir Edward Coke (1552-1634), who may well be considered the founder of English common law, once spoke of "the gladsome light of jurisprudence". A phrase to be borne in mind by all who love both truth and law. It is as if John Paul II were taking up Coke's idea, in his 1994 address to the Roman Rota: "As a participation in truth, justice too has its own splendor that can evoke a free response in the subject - one not merely external but arising from the depths of one's conscience... Hence it is legitimate to speak of the splendor of justice (splendor iustitiae) and of the splendor of the law (splendor legis) as well: indeed the task of every legal system is to serve the truth, the only solid foundation which can support personal, marital, and social life. It is only right, then, that human laws should aspire to reflect in themselves the splendor of truth. Obviously, the same can said of their concrete application, which is also entrusted to human agents. Love for the truth must be expressed in love for justice and in the resulting commitment to establishing truth in relations within human society".
Love for truth, love for law, love for justice... Only on the basis of these three inter-connected loves can a society that is properly human be built.
NOTES
[1] Thomas Aquinas: Summa Theologica I-II q. 90 a. 4).
[2] R. Yepes: Fundamentos de Antropología, Pamplona, 1996, p. 312.
[3] Servais Pinckaers: Pour une Lecture de Veritatis Splendor, Paris, 1995, pp. 41-42.
[4] Pope John Paul II, Address to the International Union of Catholic Jurists, Nov. 24, 2000.
[5] Alasdair MacIntyre, After Virtue, 1984 (2nd Edition), p. 152.
[6] No one more than Holmes promoted legal positivism. Today his views are being called more and more into question. For an incisive criticism, see: Alschuler, Albert: Law Without Values. The Life, Work, and Legacy of Justice Holmes, University of Chicago Press, 2002.
[7] The Path of the Law (1897): quoted in R. George: The Clash of Orthodoxies, 212). But even the amount of damages has to be assessed according to a measure of justice - of what is due, which would remain due even if there were no court to assess it or external power to exact it.
[8] "The law is a great thing - because men are poor and weak, and bad. And it is great, because where it exists in its strength, no tyrant can be above it" (Anthony Trollope: The Duke's Children, Ch. 61).
[9] "Ex intima hominis natura haurienda est iuris disciplina" (De legibus, II).
[10] "Omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur. Si vero in aliquo, a lege naturali discordet, iam non erit lex sed legis corruptio": Summa Theologica (I-II, q. 95, art. 2).
[11] Address of May 9, 1992: AAS 85 (1993). pp 498-499).
[12] The Sources of Christian Ethics, 1995, pp. 38-39.
[13] John Allen: All the Pope's Men, p. 103.
[14] First Things: an Inquiry into the first principles of morals and justice, 1986, pp. 3-8.
[15] 112 S. Ct. 2791, 2807 [1992].