cormacburke.me.ke

            Allow me to begin with some personal details that are not altogether irrelevant. My father being a doctor and I a priest, I have always considered that medicine and the priesthood particularly qualify as service professions - professions dedicated to the service of others. I am also a lawyer, both civil and canonical; but must admit that only in more recent years have I come to consider that the law too has every title to rank as a unique service profession. It is not that I deliberately excluded it before from my idea of major service professions; I just did not positively include it in the list. Now I do, most positively.

            How do these callings serve others? In a broad generalisation, one could say that medicine seeks to heal the body, priesthood to heal the soul, and law to heal the relations between persons. This latter point is my topic today.

            The law is an art as well as a science. The lawyer seeks (he or she should seek) not only to know the law - principles of justice, of rights and wrongs; and claims and defences; and precedents and procedures - but to bring about justice, in society and between individuals.

            The physician who practices the art of medicine can heal only if he has a true idea of what bodily health is. So it is with the lawyer who practices the art of law: he can only help resolve and heal the disputes about claims and rights that arise in civil society, if he is inspired by a true idea of justice, of what is really due, and what is not due, to each one.

            Before developing some of the positive implications of this, it is necessary, I think, to dwell on some negative trends that are powerfully affecting law no less than medicine, and threatening to destroy their self-awareness as real service-professions, as well as the actual human and humanising service they offer.

            Medicine is meant to cure; and is now being more and more instrumentalised in order to take away health and even life. Abortion is a major example. Doctors violate all that medicine stands for if they put themselves at the service of abortion. The same applies to doctor-assisted euthanasia. Medicine then becomes an instrument in society of what the Pope has not hesitated to call a culture of death, instead of serving, as it should by its very nature, a culture of life.

            The abortion doctor makes himself a part - a principal - to the taking of innocent and defenceless human life, and so too becomes an active agent in the current process by which our society is being rendered violent. Once abortion is 'legalised' - once it is lawful to eliminate a human life, simply because someone finds it unwanted or a nuisance - what grounds are there to convince people that one cannot take other lives which are seen as an obstacle to the satisfaction of lust or greed or desire for revenge? By what arguments can one convince a person who is so inclined, not to eliminate an aged parent who has become a burden on one's nerves or finance or patience?

            Law is also being used and instrumentalised for a whole process of dehumanisation of persons and society. Law is meant to be at the service of rights: of their definition, their defence and vindication. This is often not the case with the law today, because of the rapid undermining and loss of the sense of what is really due - or not due - to persons.

            Laws are being passed which create "rights" that are wrongs, and which therefore violate true human rights. If a "right" that is a wrong is exercised, it immediately does wrong. It does wrong first of all to other people. An instance could be education laws by which parents are deprived of rightful parental say regarding the education actually given in school to their children. Such laws obviously violate the parents' rights, as well as those of the children. Divorce laws violate the rights of children even more; for children have a right to a united home, where they can learn that most fundamental lesson for future life in society: that it is possible for people to get on, respect each other, remain faithful to freely assumed commitments, despite the apparent justification for quitting which the defects of others (one's partner, one's associate, one's spouse or whoever) may seem to provide.

            More should be said here, however. A "right" that is a wrong not only harms others, but also harms the very person exercising that false right. The same considerations just given about divorce could easily be developed to show why divorce laws tend to do harm to the spouses themselves (the more the "easy way out" is taken, the more enclosed people become in softness and selfishness). Abortion no doubt illustrates this point even more graphically and tragically. The woman or girl who exercises her legal "right" to abort, not only harms - destroys - the life of the child she has conceived, but does grave harm to her own life as well. A permissive society may hold nothing against her. Her parents, relatives, friends, even if perhaps they think she did wrong, may forgive her. But she will not be able to forgive herself.

            As any pastoral worker knows, she has to live out the rest of her life with the terrible awareness of having killed her own baby - wanted or unwanted, but hers. And in the few cases where she manages to overpower or suppress her sense of guilt, the same pastoral experience shows that she does so at tremendous cost to herself - the radical defeminization and dehumanization of her personality and life. No law should allow any woman or girl to do herself such a wrong.

Common good

            The legal profession is in a special way at the service of justice; it seeks to defend individual and inter-personal rights, and in doing so serves to bring about and maintain the common good.

            But if the lawyer has not a clear idea of the common good, and equally of the extent and limits of personal rights, he may find himself in the position of defending "rights" beyond the measure of justice. Then of course he would not be following the true norm of justice, which is "to each his due", and he would be false to his professional calling.

            Here one could ponder words from a 1992 Address by Pope John Paul II to the World Jurist Association: "Among the primary aims of law must be to ensure that each person receives his due, at every level of social life". Recalling words he addressed to the same Association in 1979, "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 Pope went on: "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".

            If there is no truth about man, then there can be no truth about the relations betweeen men, no true measure of what is due to each; and the law itself and every legal system become playthings in the hands of the powerful. This conclusion is not peculiarly Catholic, but is of universal application. So Pope John Paul in his Encyclical 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" (Ev. Vit. 71).

            So the parameter of law is not parliament or statute or the will of the people, but justice. To each his due - means to each what is his according to natural justice, not to arbitrary decisions. It is only when law is derived from a proper discernment of what is just that dialogue, good will and the sense of values shared in common can begin. That is why it has been rightly said that "the first form of culture is law", and only where law is rightly based and commands general respect can one speak of civilization and of civilized men. Any society without such a concept of law has not emerged from, or is returning to, a state of barbarism .

            One cannot exaggerate the importance for all citizens, and for doctors and lawyers in particular, to have a proper grasp of the Natural Law; so as to know what humanises, and what on the contrary makes society less human. If they consider the matter in any depth, people realise without difficulty that the law of the State is not and cannot be the ultimate norm governing human standards or conduct; nor is it always binding. As is clear from the constant appeal to human rights, modern consciousness is becoming more and more sensitive to the fact that laws can be in violation of rights inherent in human dignity. Nevertheless, the human rights movement is itself in danger of working from false or inadequate premisses. That is why attentive reflection and keen scrutiny are specially needed today, so as to identify true personal rights, and to be able to distinguish them from false "rights", which in effect violate human dignity and dehumanise persons.

            The Pope put it very positively in an Address to the International Union of Catholic Jurists four years ago: "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" (Nov, 24, 2000).

Just and unjust laws

            A just society is not the automatic result of just laws, since there will always be some persons who have no respect for any type of law. Nevertheless, just laws have an immense positive social effect. Along with rightly ordering men's relations, they also have an educative function. They present an image of justice that people can look up to and take as a model for their everyday relations with others.

            People have the right to laws that are just, and to a just administration of law. They have the right to see that justice is equal for all. They have the right to see that judges and police are above corruption; in other words, that you do not have to bribe agents of the law to gain your rights, and that you cannot bribe them to obtain what is not your right. They have the right to see that justice is not sold and that injustice cannot be bought.

            A society where laws are just and are justly administered will be a society where people - the majority of people - look up to the law, sense the sacredness of the law, and so are more encouraged to follow justice in their personal lives.

            A just society is not the automatic result of just laws. But an unjust society is the inevitable result of unjust laws. Unjust laws bring justice into disrepute. They lead to contempt for authority. They undermine the sense of the rights of others, cause mutual distrust and give an excuse for mutual exploitation.

            Unjust tax laws obviously foster tax evasion. Discriminatory laws against minority groups produce frustration and hatred. Unjust allocation of public money (which, after all, is the people's money) spreads the 'let-me-too-see-what-I-can-get' mentality ....

            A society will not be healthy if it lacks good laws. But even a society with good laws can be unhealthy if its citizens lack respect for law. The harmful effect of bad laws is evident. Good citizens will not respect bad laws, and are right not to do so. Their lack of respect is a defence reaction of healthy members of society against a disease that threatens the whole social body. But that very lack of respect for bad laws risks turning into a sort of contagion that spreads and reaches out even to good laws; and even to the whole concept of law.

            Good citizens will not respect bad laws; bad citizens will not respect good laws. That is natural. What is not so natural is when good citizens are tempted not to respect good laws. But, I repeat, this is something that can occur. A generalized loss of respect for law can be a social disease that proves fatal to a society.

            The unhealthy reaction of lack of respect for good laws - among otherwise good citizens - can come about in different ways. It can obviously come in the aftermath of a period of bad laws or bad administration. Even if new and good laws take the place of the bad, and honest administration that of corrupt, it will probably take some time before people's confidence in the law and sense of respect for the law are restored.

Authority, an instrument of oppression?

            One of the difficulties affecting people's attitude towards law today is the tendency to be suspicious of all government. Government means authority; and authority, it is suggested, is in some way (or so easily becomes) an instrument of oppression. Besides, government implies rulers and subjects, and therefore seems to suggest superiority and inferiority. Is there not something degrading in being 'under' authority?

            These difficulties need an answer, since the fact is that we cannot have laws, effective law, (and therefore we cannot have justice) without government.

            Authority implies a relationship between those wielding authority and those subject to it. But this is not essentially a relationship of power, nor is it based on force, nor on the ability to bring others into subjection. It is a relationship of free wills, properly ordered towards the common good. So, of its nature, it implies reason and freedom in both those exercising and those accepting authority.

            Where authority is properly exercised, in the carrying out of just laws, it is not opposed to personal freedom but fosters it and serves it.

            To the thinking man, just authority is seen as a positive good. The principle of authority has a certain sacredness to it, because it brings justice to society. Acceptance of authority is a reasonable act. Obedience to authority becomes an act of freedom and a sign of maturity. Behind authority lies the will of God (cf. Rom 13: 1; Jn 19: 11); that is the ultimate reason for its sacredness. Acceptance of authority is therefore a rational and religious act.

            Opposition between personal freedom and authority or government arises only when there is a disorder in one or the other. If an individual uses his freedom wrongly, he will meet the opposition of authority as it defends the common good. If authority becomes unjust and tyrannical, then personal freedom: a) is not bound to obey it; b) may choose to resist it; c) may in extreme cases even be obliged to resist.

            Even in cases a) and b), however, as long as the authority or law in question is not essentially opposed to the common good, it may be better to obey it or have recourse to peaceful civil disobediences, rather than to rise against it violently. The reason is that the principle of authority lies at the very foundation of the social order; and is therefore itself a great good. To oppose it with violence in order to remedy a particular situation may have the effect of undermining people's respect for any authority.

            A person may rise against a particular government or authority because of this or that specific law which is unjust. But this example of violent disobedience and rebellion, apart from the immediate disorder and bloodshed it is likely to cause, may encourage all sorts of dissatisfied groups into thinking that violence and rebellion are legitimate ways of advancing their claims.

            Taking the law into one's own hands risks destroying all sense of law. Lawlessness is a contagious disease that spreads rapidly. History offers many examples of how rebellions against defective or corrupt governments have plunged countries into civil war or anarchy; and in the end often left them under an even more tyrannical government.

Justice that heals

            Lawyers are constantly under pressure to act as if their mission is to serve people's interests, whereas it is to serve their rights. The lawyer owes it to his or her clients to defend their rights. But he must also help them not to claim more. To help them obtain more would be injustice towards others; and injustice is always the seed of further social disturbance. So the lawyer has a professional duty to try to get a client to see what is just; and to see what it would be unjust to demand.

            Law, like medicine, has a particular healing power - always provided it is properly applied. People so often react embitteredly if they do not get all they wanted. But if what they wanted was not what they were entitled to, they should be helped to be satisfied with what in fact was their due. That way resentment and bitterness can gradually give way to peace. The lawyer can do so much here which so furthers social peace. This is where we should see the broader reaches of the lawyer's concern and service mission.

            The delicate and difficult process of discerning, defending, and finally declaring what is just, is rightly considered a legal and judicial task. But the common good requires that it be backed up by the equally delicate and difficult task of getting people to see that what has been declared to be just is in fact just, and to accept it as such. Is this latter task to be left solely to priests and pastors? Is it not also a task for the true jurist, for one who loves justice and wants to bring it about? Should it not also enter his professional horizons and concerns?

            Lawyers would not be doing true legal work if they failed to present to people the full personal challenge presented by the living of justice. It would be a great pity if they were afraid to put challenges to people or to underestimate how much the challenges of justice attract when they are properly presented. Justice, despite its difficulties, has an appeal, an immense appeal. And this is true not only of social and distributive justice, but also (and very particularly) of commutative or inter-personal justice, with its summons to each one to respect others, to face up to what he or she owes to them, and to give it.

            Medicine is designed to heal; this too should be true of justice. But the healing power of justice is at times not appreciated by lawyers or judges. If so, they will not be able to activate its power in this sense among others. And yet justice, if properly understood, is something enormously attractive and a powerful stimulus to people. It appeals to their inner honesty, to their deeper sense of values, calling on them to put the proper rights of others above their own personal convenience or advantage; or at least to put them on the same level as their own proper right.

            At times I have come across a suggestion which leaves me perplexed: that a judgment has no power to "heal" persons or situations, for it always leaves someone "wounded". It is not necessarily so. A just judgment has great power to heal, or at least to point out the path to personal and social health. It is true that the judgment alone - the simple declaration of justice - may not be sufficient to restore health. It needs to be accepted personally, and put into effect. That is why even though justice always possesses healing power, in the end it is not just the declaration but the acceptance of justice that heals. To bring about that acceptance is a task that the lawyer must attempt, if he is to be fully faithful to his vocation. He must attempt it, even if the attempt often enough appears to meet with no success, just as the doctor must always try to give health and save life despite his many failures to do so. It is the noble task of both professions.

            Good medicine heals; but of course the healing process demands not only that a proper diagnosis be made but also that the patient accept the necessary treatment, even if bitter or painful. The diagnosis or prescription - the judgment - is useless if the sick person refuses to accept and apply the remedy, or if there is no one capable of persuading him or her to do so.

            So too, both judges and lawyers have a capacity to heal. But their healing capacity is not exercised if they let people think that a violation of rights, or a failure to fulfill obligations, or a tampering with due process, is a healthy and not a pathological situation.

            Yes, one comes across cases where a judgment seems to leave a person "wounded," and he or she lapses into a bitter and resentful attitude. But if the judgment is just, the person should not be that way, or be left that way. The true professional concern in such cases ought to be to help the person out of that attitude, through seeing that the judgment, despite the burden it may seem to put on him or her, upholds other people's rights. Only if the person accepts this, will the "wound" gradually disappear and the healing process be brought to completion. The lawyer no less than the doctor has constant opportunities, and God will give him special grace, to bring about such deeper healings, so important for social solidarity and peace.

            If lawyers and judges do not understand these points or no longer strive to put them into practice, they fail to grasp the nobility of their professional vocation and to carry out their privileged and unique service mission to society. They and society are much the poorer for it.