cormacburke.me.ke

     Let us first recall a few elementary ideas about both conscience and law, and then consider some aspects of their inter-relationship.

           Conscience can be described as a personal interior faculty pointing to the right and wrong of one's actions. It is what the moral theologians call the proximate norm of morality.  Vatican II speaks of it as the interior voice "always summoning man to love good and avoid evil, speaking to his heart, saying: do this, avoid that" (GS 16).

           A first principle about conscience is that it must be obeyed (when it commands or prohibits, not necessarily when it simply permits).  However, conscience is not an infallible pointer to right or wrong; it can be mistaken in its indications or judgments. Therefore, a second principle about conscience is that it must be formed.  It needs to be verified, adjusted, and if necessary corrected. So, while one is obliged to follow one's conscience, one can only feel at peace in doing so to the extent to which one has thoroughly checked it out and has reason to believe that its judgments are true; just as one should follow one's watch only because having checked it against some more reliable timepiece, one has good reason to believe it is telling the right time.

           A law is a rule of action intended to bind the members of a society, and given by whoever has authority over that society. St. Thomas however insists on some further essential qualities of law: the rule which it seeks to establish must be for the common good, and it must correspond to right reason (I-II, q. 90).

            It is the correspondence of the legal norm to truth, and concretely to justice, that makes it reasonable.  So we come to a more exact idea of law if we say that it is a binding norm of action which tends to establish or restore justice in relations between men, in such a way that rights are respected, duties fulfilled and conflicting claims or interests harmonized.

           The relationship between law and justice is vital and needs to be properly understood.  One can say that justice marks out a supra-legal area of values from which laws must draw their legitimacy and binding moral force.  If a legal disposition does not correspond to justice, it cannot be binding in conscience.  Such a "law" lacks moral legitimacy and should ordinarily be resisted, for its enforcement involves a violation of human dignity and rights.

           The fact is that unjust "laws" are one of the worst cancers that can affect any society. They establish "rights" that are wrongs, and so foster a state of tension and discord - not of harmony - between people. To the extent that a country is plagued with unjust "laws", its legal system and its lawyers lose the natural good standing and prestige they should have before the citizens. In such a situation people quickly sense that laws are not serving higher values justice, truth, the common good - but are simply manipulated measures at the service of particular interests. Among other consequences, people then tend to lose their ability to that which is just - is brought into disrepute.

Positivism

           Some jurists reject the relationship of law to truth or to moral values, and specifically its dependence on justice. They maintain that the enactment of a law by a competent authority is all that is needed for its legitimacy and justification. "Legality" thus becomes an independent value, with no necessary or intrinsic relation to morality or to justice.  In fact, justice becomes a totally subordinate value, derived from legality.  Whatever the law permits is just or right; whatever it prohibits is unjust or wrong.

           Peculiarly enough, this idea, which is negative in the extreme, goes by the name of legal positivism - the philosophy according to which a law derives its justification and authority simply from the will of the law-giver, in such a way, in other words, that whatever the legislator wants or decrees is right.  Legal positivism is in fact one of the greatest threats to any sound and rational juridic system and to the adequate protection of human rights.

           Now, when the legislator is a single person - e.g. a dictator - people are more alert to the dangers of positivism. By what title, they will ask, can one man make his will a binding norm for everyone?  Legal positivism appears more plausible, and is therefore more dangerous, when presented in a democratic form: i.e. when it is suggested that the norm of law is simply the will of the majority. This is a very common position today, but it is equally untenable.  Otherwise everything the majority decides would be right, even if for instance it decides that the minority be deprived of their human rights and freedoms: their right to vote, their freedom of expression or worship, their right to marry and have children,  their very right to survival and  life... Unfortunately, we are not referring to unlikely or impossible hypotheses. Just to take the area of race relations, one can recall the treatment in law of the black minority by the white majority over centuries in the USA, and even of the black majority by the white minority in S. Africa until only a few years ago. One could also cite the incredible chinese law by which a couple is permitted to have one child, no more.  The examples can be multiplied.

           The standard of rightness or acceptability of a law cannot be any single will or combination of wills. A law is to be judged right or wrong according to whether or not it is in conformity with the norm of justice; a norm that is higher than and prior to all preferences or dispositions of the human will.  The norm of justice is commonly expressed by the principle of "to each his due", and means that each person has an intrinsic right to what is naturally due to him or her as a human being.

           Some people would suggest that this is hard to understand or accept; but to my mind a proper analysis of the matter shows the opposite to be true. This, I think, emerges readily from a consideration of the human rights movement, which is so active and highly considered today. The movement derives all its force from the very argument we have been putting forward: the deep conviction that it is not merely as a citizen or subject of the State, but as a man, that one possesses one's basic rights. These rights are not enjoyed by concession of a government or a Constitution (though they can and should be recognized by them), and they remain inalienable even if the State, in its laws, refuses to recognize or respect them.

The conscientious response to law

           Now, the relation of all this to conscience should be clear.  A properly formed conscience is keenly sensitive to issues of true justice, and should therefore be able to distinguish between true and false laws: just laws which bind, and unjust "laws" which, I repeat, are not real laws at all and have no binding power over conscience.  Hence precisely the urgent need to form consciences according to sound principles of natural law and natural rights.

           Getting around the law has been the common aim of millions of people of ali ages, not just of our own. It is obviously not a conscientious approach. Conscience, if it is sensitive, will want to obey a law that is just.  It is interesting to recall how St. Paul says that we should obey the law precisely "for conscience's sake" (Rom 13: 5).

           A just law should rightfully evoke a free response in the citizen who, if he is not dominated by prejudice, ought to see that such a law corresponds to truth and justice, and therefore makes a legitimate appeal to his own conscience. It possesses in fact all the authority of truth and justice over his conscience.

           An unjust law should provoke a movement of rejection on the part of a person of conscience. An unjust law can bind a person physically (in virtue of coercive political power), but not morally.  An unjust law can give rise to no moral obligation of obedience or acceptance.

           Unjust laws can be evaded to the extent of the unfairness of the burden they impose.  If the injustice of a legal decision or disposition were to affect no one but one's self, one could - if one wishes - tolerate it. Other unjust laws, however, because of the harm they cause to public or private good and the injustice they cause to individuals and society, must be resisted. To acquiesce in them would be to cooperate in injustice. This applies particularly in a democratic state where each citizen shares responsibility for the common good. The repeal of such laws must be a priority for every person of conscience.

Defending unjust cases?

           A practical question for legal practice is how far one can defend rights which one knows not to be properly grounded; which in other words are not true rights, and are even wrongs: violations, that is, of the proper rights of other persons. Since conscience tells us that it is wrong to defend wrong, it would seem that one can never act as an advocate for ungrounded or unsubstantiated rights.  A practical question for the lawyer, who often enough needs to ask himself how far one can go in defending a bad case...

           Here we need to reason carefully, so as neither to be unprincipledly  lax, nor to fall into unnecessary simplification or rigorism. First, let me suggest some broad general principles, and then qualify them.

           In civil matters, if the lawyer is sure that the potential client coming to him has absolutely no grounds to his case, has no justification for his claim, then the lawyer cannot in conscience take on that case, for to do so would mean applying his knowledge and skill in an endeavor to nave a wrong done, to have a wrongful claim upheld.

           A conscientious lawyer should not however conclude that if he adheres to this principle, his practice will then be severely limited.  I doubt it, unless he has chosen to specialize in working for the Mafia.  A few further remarks can perhaps clarify this.

           The main point to keep in mind is that justice is a matter of measure: "to each his due". There may be reasons in charity to give someone more than his due, but none in justice.

           Now, especially in civil cases, it is not always or even regularly that everything is due to the person who is in the right, and nothing to the one who is in the wrong. A person may have a rightful claim to damages, but perhaps not to as much as he actually seeks.  If the party in the wrong were forced to pay more than is due, a wrong would be done to him. So a conscientious advocate can certainly defend the legitimate right of the person in the wrong - that no more than due amends or compensation or punishment be imposed on him. As a complement to this, it is also true that when the lawyer knows his client to be in the right, he still has the moral obligation to try to get him to be content with a rightful judgment, and not to want to seek more, for then he would be inflicting a wrong.

           In criminal cases, it is clear that a lawyer can defend a client he knows to be guilty: so as to ensure that he does not receive more punishment than he deserves. What if the lawyer is so able that he gets his guilty client acquitted? Broadly speaking I think he can let the matter ride, unless he knows his client to be in fact some sort of homicidal or anarchical maniac. The issue here is the defence not of private rights but of public good; and it may well be that the guilty man acquitted may no longer violate that good. The lawyer would have to act according to his evaluation of each concrete case.

The power of justice to "heal"

           A conscientious task of the jurist - the advocate of rights and justice - is to seek to have justice done all round and accepted ali round.

           A canonical article I read some time ago maintained that a judgment does not have the "power to heal" (and therefore, the author suggested, is not "pastoral").  I understand the difficulty he had in mind, but I disagree with his statement. A just judgment - justice - always has the power to heal, i.e. to relieve the strain, the moral wear and tear that a contentious situation produces.

           There is less of a problem with the "winner" in a dispute; though even there, as we have noted, he will often have to be helped to be content with his due, and not to be disgruntled or resentful if he does not get all he claimed, if that full claim was not actually owed to him in justice. But even in the more difficult case of the "loser", healing can be brought about - and a measure of interior peace restored - if he too can be helped to accept his due.
            Jesus on the Cross stood as Judge between two criminals. One was healed and saved by the judgment meted out to him - because he accepted its justice:  "we are rightfully suffering", he said. The other had lost his sense of justice, he had for too long gotten used to not listening to his conscience. And - so at least it seems - he found no healing, no peace, no salvation. He who had too often deprived others of what was their due, could not accept and take what was due to him, and so he suffered and died uselessly.

           A really good lawyer - who loves justice - will often find the means, and God will give him the grace, to get many people to see, and to accept, the justice of the judgments they undergo, whether for their material advantage or not.

           When a boy, I thought of being a doctor, like my father. Medicine then seemed to me to be the highest and noblest human profession. Now I think that this is, or should be, the law. The doctor seeks to relieve individual sickness and restore personal health.  The jurist - lawyer or judge - seeks to restore interpersonal health, so that people's relations are characterized by just treatment of one another.  Nothing is more important for social peace, as well as for genuine peace of soul.  And nothing so prepares people for accepting and being redeemed by the Justice of God.     Let us first recall a few elementary ideas about both conscience and law, and then consider some aspects of their inter-relationship.

           Conscience can be described as a personal interior faculty pointing to the right and wrong of one's actions. It is what the moral theologians call the proximate norm of morality.  Vatican II speaks of it as the interior voice "always summoning man to love good and avoid evil, speaking to his heart, saying: do this, avoid that" (GS 16)
            A first principle about conscience is that it must be obeyed (when it commands or prohibits, not necessarily when it simply permits).  However, conscience is not an infallible pointer to right or wrong; it can be mistaken in its indications or judgments. Therefore, a second principle about conscience is that it must be formed.  It needs to be verified, adjusted, and if necessary corrected. So, while one is obliged to follow one's conscience, one can only feel at peace in doing so to the extent to which one has thoroughly checked it out and has reason to believe that its judgments are true; just as one should follow one's watch only because having checked it against some more reliable timepiece, one has good reason to believe it is telling the right time.

           A law is a rule of action intended to bind the members of a society, and given by whoever has authority over that society. St. Thomas however insists on some further essential qualities of law: the rule which it seeks to establish must be for the common good, and it must correspond to right reason (I-II, q. 90).

           It is the correspondence of the legal norm to truth, and concretely to justice, that makes it reasonable.  So we come to a more exact idea of law if we say that it is a binding norm of action which tends to establish or restore justice in relations between men, in such a way that rights are respected, duties fulfilled and conflicting claims or interests harmonized.

           The relationship between law and justice is vital and needs to be properly understood.  One can say that justice marks out a supra-legal area of values from which laws must draw their legitimacy and binding moral force.  If a legal disposition does not correspond to justice, it cannot be binding in conscience.  Such a "law" lacks moral legitimacy and should ordinarily be resisted, for its enforcement involves a violation of human dignity and rights.

           The fact is that unjust "laws" are one of the worst cancers that can affect any society. They establish "rights" that are wrongs, and so foster a state of tension and discord - not of harmony - between people. To the extent that a country is plagued with unjust "laws", its legal system and its lawyers lose the natural good standing and prestige they should have before the citizens. In such a situation people quickly sense that laws are not serving higher values justice, truth, the common good - but are simply manipulated measures at the service of particular interests. Among other consequences, people then tend to lose their ability to that which is just - is brought into disrepute.

Positivism

           Some jurists reject the relationship of law to truth or to moral values, and specifically its dependence on justice. They maintain that the enactment of a law by a competent authority is all that is needed for its legitimacy and justification. "Legality" thus becomes an independent value, with no necessary or intrinsic relation to morality or to justice.  In fact, justice becomes a totally subordinate value, derived from legality.  Whatever the law permits is just or right; whatever it prohibits is unjust or wrong.

           Peculiarly enough, this idea, which is negative in the extreme, goes by the name of legal positivism - the philosophy according to which a law derives its justification and authority simply from the will of the law-giver, in such a way, in other words, that whatever the legislator wants or decrees is right.  Legal positivism is in fact one of the greatest threats to any sound and rational juridic system and to the adequate protection of human rights.

           Now, when the legislator is a single person - e.g. a dictator - people are more alert to the dangers of positivism. By what title, they will ask, can one man make his will a binding norm for everyone?  Legal positivism appears more plausible, and is therefore more dangerous, when presented in a democratic form: i.e. when it is suggested that the norm of law is simply the will of the majority. This is a very common position today, but it is equally untenable.  Otherwise everything the majority decides would be right, even if for instance it decides that the minority be deprived of their human rights and freedoms: their right to vote, their freedom of expression or worship, their right to marry and have children,  their very right to survival and  life... Unfortunately, we are not referring to unlikely or impossible hypotheses. Just to take the area of race relations, one can recall the treatment in law of the black minority by the white majority over centuries in the USA, and even of the black majority by the white minority in S. Africa until only a few years ago. One could also cite the incredible chinese law by which a couple is permitted to have one child, no more.  The examples can be multiplied.

           The standard of rightness or acceptability of a law cannot be any single will or combination of wills. A law is to be judged right or wrong according to whether or not it is in conformity with the norm of justice; a norm that is higher than and prior to all preferences or dispositions of the human will.  The norm of justice is commonly expressed by the principle of "to each his due", and means that each person has an intrinsic right to what is naturally due to him or her as a human being.

           Some people would suggest that this is hard to understand or accept; but to my mind a proper analysis of the matter shows the opposite to be true. This, I think, emerges readily from a consideration of the human rights movement, which is so active and highly considered today. The movement derives all its force from the very argument we have been putting forward: the deep conviction that it is not merely as a citizen or subject of the State, but as a man, that one possesses one's basic rights. These rights are not enjoyed by concession of a government or a Constitution (though they can and should be recognized by them), and they remain inalienable even if the State, in its laws, refuses to recognize or respect them.

The conscientious response to law

           Now, the relation of all this to conscience should be clear.  A properly formed conscience is keenly sensitive to issues of true justice, and should therefore be able to distinguish between true and false laws: just laws which bind, and unjust "laws" which, I repeat, are not real laws at all and have no binding power over conscience.  Hence precisely the urgent need to form consciences according to sound principles of natural law and natural rights.

           Getting around the law has been the common aim of millions of people of ali ages, not just of our own. It is obviously not a conscientious approach. Conscience, if it is sensitive, will want to obey a law that is just.  It is interesting to recall how St. Paul says that we should obey the law precisely "for conscience's sake" (Rom 13: 5).

           A just law should rightfully evoke a free response in the citizen who, if he is not dominated by prejudice, ought to see that such a law corresponds to truth and justice, and therefore makes a legitimate appeal to his own conscience. It possesses in fact all the authority of truth and justice over his conscience.

           An unjust law should provoke a movement of rejection on the part of a person of conscience. An unjust law can bind a person physically (in virtue of coercive political power), but not morally.  An unjust law can give rise to no moral obligation of obedience or acceptance.

           Unjust laws can be evaded to the extent of the unfairness of the burden they impose.  If the injustice of a legal decision or disposition were to affect no one but one's self, one could - if one wishes - tolerate it. Other unjust laws, however, because of the harm they cause to public or private good and the injustice they cause to individuals and society, must be resisted. To acquiesce in them would be to cooperate in injustice. This applies particularly in a democratic state where each citizen shares responsibility for the common good. The repeal of such laws must be a priority for every person of conscience.

Defending unjust cases?

           A practical question for legal practice is how far one can defend rights which one knows not to be properly grounded; which in other words are not true rights, and are even wrongs: violations, that is, of the proper rights of other persons. Since conscience tells us that it is wrong to defend wrong, it would seem that one can never act as an advocate for ungrounded or unsubstantiated rights.  A practical question for the lawyer, who often enough needs to ask himself how far one can go in defending a bad case...

           Here we need to reason carefully, so as neither to be unprincipledly  lax, nor to fall into unnecessary simplification or rigorism. First, let me suggest some broad general principles, and then qualify them.

           In civil matters, if the lawyer is sure that the potential client coming to him has absolutely no grounds to his case, has no justification for his claim, then the lawyer cannot in conscience take on that case, for to do so would mean applying his knowledge and skill in an endeavor to nave a wrong done, to have a wrongful claim upheld.

           A conscientious lawyer should not however conclude that if he adheres to this principle, his practice will then be severely limited.  I doubt it, unless he has chosen to specialize in working for the Mafia.  A few further remarks can perhaps clarify this.

           The main point to keep in mind is that justice is a matter of measure: "to each his due". There may be reasons in charity to give someone more than his due, but none in justice.

           Now, especially in civil cases, it is not always or even regularly that everything is due to the person who is in the right, and nothing to the one who is in the wrong. A person may have a rightful claim to damages, but perhaps not to as much as he actually seeks.  If the party in the wrong were forced to pay more than is due, a wrong would be done to him. So a conscientious advocate can certainly defend the legitimate right of the person in the wrong - that no more than due amends or compensation or punishment be imposed on him. As a complement to this, it is also true that when the lawyer knows his client to be in the right, he still has the moral obligation to try to get him to be content with a rightful judgment, and not to want to seek more, for then he would be inflicting a wrong.

           In criminal cases, it is clear that a lawyer can defend a client he knows to be guilty: so as to ensure that he does not receive more punishment than he deserves. What if the lawyer is so able that he gets his guilty client acquitted? Broadly speaking I think he can let the matter ride, unless he knows his client to be in fact some sort of homicidal or anarchical maniac. The issue here is the defence not of private rights but of public good; and it may well be that the guilty man acquitted may no longer violate that good. The lawyer would have to act according to his evaluation of each concrete case.

The power of justice to "heal"

           A conscientious task of the jurist - the advocate of rights and justice - is to seek to have justice done all round and accepted ali round.

           A canonical article I read some time ago maintained that a judgment does not have the "power to heal" (and therefore, the author suggested, is not "pastoral").  I understand the difficulty he had in mind, but I disagree with his statement. A just judgment - justice - always has the power to heal, i.e. to relieve the strain, the moral wear and tear that a contentious situation produces.

           There is less of a problem with the "winner" in a dispute; though even there, as we have noted, he will often have to be helped to be content with his due, and not to be disgruntled or resentful if he does not get all he claimed, if that full claim was not actually owed to him in justice. But even in the more difficult case of the "loser", healing can be brought about - and a measure of interior peace restored - if he too can be helped to accept his due.

           Jesus on the Cross stood as Judge between two criminals. One was healed and saved by the judgment meted out to him - because he accepted its justice:  "we are rightfully suffering", he said. The other had lost his sense of justice, he had for too long gotten used to not listening to his conscience. And - so at least it seems - he found no healing, no peace, no salvation. He who had too often deprived others of what was their due, could not accept and take what was due to him, and so he suffered and died uselessly.

           A really good lawyer - who loves justice - will often find the means, and God will give him the grace, to get many people to see, and to accept, the justice of the judgments they undergo, whether for their material advantage or not.

           When a boy, I thought of being a doctor, like my father. Medicine then seemed to me to be the highest and noblest human profession. Now I think that this is, or should be, the law. The doctor seeks to relieve individual sickness and restore personal health.  The jurist - lawyer or judge - seeks to restore interpersonal health, so that people's relations are characterized by just treatment of one another.  Nothing is more important for social peace, as well as for genuine peace of soul.  And nothing so prepares people for accepting and being redeemed by the Justice of God.