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.

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)

The Kingdom and Pluralism

I'll continue today with my third proposition on the topic of "Justice, Pluralism, and the Kingdom."

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

This kingship is not yet fully realized of course, but it must inform our desire to live in the context of plural conceptions of the good. Quoting Lesslie Newbigin once more:

To call men and women into discipleship of Jesus Christ is and must always be central in the life of the Church.  But we must be clear about what discipleship will mean.  It cannot mean that one accepts the lordship of Christ as governing personal and domestic life, and the life of the Church, while another sovereignty is acknowledged for the public life of society.  (The Gospel in a Pluralist Society, 220).

Jesus is at work to reconcile all things to himself, and in that process, anything in creation can be directed toward or away from God’s Kingship—that is, directed either in obedience or disobedience to his law. This “double direction” (to use to Albert Wolters’ framework) can be applied not only to human beings, but also to cultural phenomena and social institutions, such as legal systems, governments, and law practices.

Legal institutions, courts, families, corporations, human souls, science, technology, sexuality are disputed. This is a spiritual battle, in quite a literal sense. The “direction” (again, using Wolters’ framework) of these institutions, people, and entities may be toward the true King, in the process of redemption, or toward the powers that oppose Him—continuing in the disobedience begun at the fall. Our cultural task is a redemptive one, working to direct people, institutions, and entities toward the King. Wolters puts it this way:

[W]e have a redemptive task wherever our vocation places us in his world. No invisible dividing line within creation limits the applicability of such basic biblical concepts as reconciliation , redemption, salvation, sanctification, renewal, the kingdom of God, and so on. In the name of Christ, distortion must be opposed everywhere—in the kitchen and the bedroom, in city councils and corporate boardrooms, on the stage and in the air, in the classroom and in the workshop. . . . 

What was formed in creation has been historically deformed by sin and must be reformed in Christ. (Albert M. Wolters,Creation Regained: Biblical Basics for a Reformational Worldview, 73, 91).

We are not ever called to abruptly eradicate every aspect of the established system and replace it with a totally new one. Instead, our calling requires us to understand that no societal order is absolutely corrupt, and to see first what is good within the societal order.

We also understand that progress is NOT the expectation, but suffering as well as victory and proclamation and endurance and waiting and seeing and loving—not a cycle, not continuous progress, but a redemptive matrix of perichoretic relationships in which we give and receive the love and power of God, one to another as a reflection of the Triune God.


Some helpful resources on this topic for further study:

Albert M. Wolters, Creation Regained:Biblical Basics for a Reformational Worldview (2005)

Allen M. Wakabayashi, Kingdom Come: How Jesus Wants to Change the World (2003)

Russell D. Moore, The Kingdom of Christ: The New Evangelical Perspective (2004)

Richard Mouw, When the Kings Come Marching In: Isaiah and the New Jerusalem (2002)

Paul Marshall, Thine is the Kingdom: A Biblical Perspective on the Nature of Government and Politics Today (1984). 

Law, Truth, and Freedom

Continuing the discussion I started earlier this week on pluralism and public justice, I'll move to my second proposition.

Human beings ought to be free to pursue what is good unhindered by state-sponsored barriers.  As a result, “plural”—conflicting—visions of the Good will co-exist and interact in society.

This seems compatible with a Christian view that holds—as a fact, not an opinion or a personal value (see Thursday’s post)—that the Creator God and His Son are owed our love and worship, and that coercion de-natures love and worship. So while politics and religion are perhaps inseparable, freedom of worship and robust religious liberty are possible.

(Note here the stark difference in commitments to religious liberty in Western societies—rooted in Christian thinking—and those rooted in Islam).

Yet the fact remains that the law itself makes truth claims, and civil institutions must choose between conflicting visions of the Good, the nature of the human person, the nature and purpose of law, and a wide variety of other foundational presuppositions which reflect—and require—moral knowledge.

What is the purpose of punishment?

Why compensate victims and on what grounds?

What is a judge?

What does it mean for a state to “do justice”?

Different answers to these simple—but foundational—questions result in widely divergent practices, laws, and even institutions.

Even on basic presuppositions, we are faced with plural conceptions of the Good, and the choices that must be made in this regard in areas of public justice are certainly within the authority of the civil government.

Some resources on this topic:

Edwin S. Corwin, The Higher LawBackground of American Constitutional Law (1955)

Michael Cromartie, ed., Caesar’sCoin Revisited: Christians and the Limits of Government (1996)

James Madison, Memorial andRemonstrance

John Courtney Murray, We HoldThese Truths (1960)

Craig A. Stern, Things Not Nice:An Essay on Civil Government (1997)

Craig A. Stern, Crime, MoralLuck, and the Sermon on the Mount

The Myth of the Secular Society

Yesterday I posted on my presentation at Hong Kong University on Truth, Justice, and Pluralism. 

I'll elaborate on my first point, that we are mistaken if we believe that "pluralism" means that there can be such a thing as a purely secular society, where religious neutrality reigns.

As Lesslie Newbigin eloquently established in his 1989 classic, The Gospel in a Pluralist Society, the idea of a "secular society" is a myth, and the pluralistic ideal is misunderstood.  To begin with, one of the key elements in a supposedly secular society is the separation between the private and the public human being—“a concept of the human person which separates morals from public life.” Proponents of the secular society envision two worlds: a world of “facts”—that are knowable by all and shared—and a world of “values”—opinions and choices that are private, personal, such as faith and morality and religion.

This is impossible, for at least two reasons. First the nature of society itself:

Renouncing the quest for metaphysical knowledge need not be cause for disappointment, however, because it means that . . . there is no deep mystery at the heart of existence.  Or at least no deep mystery worth trying to dispel and thus worth troubling our minds about. (4-5). 

The way societies behave, and the policies they accept, will be a function of the commitments the members of society have, the values they cherish, and – ultimately—the beliefs they hold about the world and their place in it.” (218)

Second, “There are not two separate avenues to understanding, one marked 'knowledge' and the other marked 'faith.' There is no knowing without believing, and believing is the way to knowing. The quest for certainty through universal doubt is a blind alley.”

In short, all of our aims and policies—seemingly neutral positions of the culture—are based on deep-seated beliefs and values.  Fundamental notions of the nature of the human person and its place in the universe, the nature of law, and the obligations of the state all flow from moral and religious convictions supposedly outside the competency of the secular society. 

Consider, for example, the work of committed secularist Richard Posner, a prolific and eloquent legal theorist at the forefront of law and economic theory.  In Law, Pragmatism, and Democracy, he begins by explaining that philosophical pragmatism is the best foundation for pragmatic legal theory, and he explains why he finds certain fundamental theses “most congenial” to his approach:

Since we are just clever animals, with intellectual capabilities oriented toward manipulating our local and physical environment, we cannot be optimistic about our ability to discover metaphysical entities, if there are any (which we cannot know), whether through philosophy or any other mode of inquiry.  We cannot hope to know the [metaphysical] universe as it really is . . . .

Judge Posner, in just these few sentences, makes religious pronouncements on the nature of the human person, the end and limits of human knowledge, and the value of seeking the mystery at the heart of existence.  This is not “secular” legal theory, it is moral anthropology and theology.  And this is just one portion of one paragraph of the introduction!

In addition, the fact that supposedly neutral “secular” points of view are rooted in fundamental beliefs and moral values is rarely articulated. Newbigin again:

It is widely believed in our society that to introduce the name of God into the discussion of a public issue, or into an academic study, is to intrude a private opinion into a sphere which is governed by other criteria.  These other criteria are not normally brought into the open for scrutiny. (217).

This is certainly true in law, where at least in the American academy, the prevailing view of the nature of the law is that it is purely a human artifact and merely an instrument for social engineering. Yet this view is almost never openly articulated, but simply lurks behind all that is said and done.  The value system is taken for granted, yet never discussed.

On that score we should be invigorated by Judge Posner’s approach.  It is refreshing to read, for a change, an honest articulation of the importance of moral anthropology, epistemology, and theology as a foundation for legal theory!  What a strong testimony to the metaphysical nature of our inquiry into the true purpose of the law.  What a great invitation to discuss the nature of the human person and our ability to grasp metaphysical problems and bring reason and faith to the law.  What better example of the necessity of religious commitments to legal inquiry than Posner’s own statements?

For there is no such thing as a secular society, and one of the tasks of the Christian – or any religious—scholar is to identify and challenge the unspoken assumptions of that myth.

(Update) Here are some resources on this topic:

Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000)
Hunter Baker, The End of Secularism (2009)
Lesslie Newbigin, The Gospel in a Pluralist Society (1989)
Brian Tamanaha, Law as a Means to an End: Threat to Rule of Law (Cambridge 2006)