By David Solway, AMERICAN THINKER
The major purpose of common law and constitutional provisions, descending from the articles of the Magna Carta, is to protect the individual from the arbitrary incursions of the State and to ensure the enactment of justice. That is the ideal. But as we know all too well, laws are often unenforced, unduly punitive, or misapplied, which brings up the question of the relation of law to justice.
Laws are ephemeral, subject to modification, varying from one political administration to another, or changing from one historical period to another, often with little in the way of legal residue or public memory. The concept of law is embedded within the larger concept of justice, but individual laws have no relation to justice sui generis. Laws are pragmatic conveyances meant to be obeyed not because they are inherently “just” but because they facilitate public order — in the sense that the three different colors of traffic lights are not instances of the Platonic Idea or eidos or willed by a Supreme Judge. Yet they are needed to regulate the orderly flow of traffic and prevent accidents.
What Tomas Sowell refers to as “cosmic justice” in The Quest for Cosmic Justice is another animal entirely, equivalent to what we now call “social justice.” Cosmic justice or social justice, Sowell explains, “must be hand-made by holders of power who impose their own decisions on how…individuals should be categorized into abstractions and how these abstractions should be forcibly configured to fit the vision of the power-holders.” Cosmic/social justice cannot acknowledge those irreducible disparities that are biological, genetic, nurtured, character-based or purely stochastic. The attempt to level individual differences that are inherently resistant and given “can cause us to lose what is attainable in quest for the unattainable.” And what is attainable in a deeply flawed world in which individual distinctions and hierarchical structures are permanent elements is always less than what we desire. Working against reality is a recipe for failure in every domain of human existence. Cosmic/ social justice with its penchant for managerial law will see to that.
Is there such a thing as an innate faculty of “moral sympathy,” as philosopher Julian Baginni claims in A Short History of Truth: Consolations for a Post-Truth World, which can be relied upon in the want of an absolute dispositive? Is there such a thing as “natural justice,” as developed from the jus gentium of Roman law extending to all peoples and nations? Is there such a thing as “Divine Justice” predicated on the unchanging will of God, extending equally to all humanity? And even if there were, would they not be subject to local hermeneutics and the category error of conflating a transitory instrument with an absolute decree?
In the original Hebrew, the Ten Commandments, variously Aseret ha’D’varim or Aseret ha’Dibrot, though forming the basis of civil and religious law, mean literally “the ten statements or sayings” — i.e., the binding word — of God. The word commonly used for law or commandment is mitzvah, which has the prior etymological sense of “a direction for a journey,” thus by implication, a moral directive as well as a “good deed.” Although the two terms are interchangeable in general parlance and liturgical texts, the distinction between the principle of justice and the codification of law remains crucial.
Here I would disagree with the Jewish philosopher Eliezer Berkovits who, in his magnum opus God, Man and History, insists that “the essence of law is the same as that of the encounter [with God] itself.” In other words, man as lawgiver emulates in the scheme of creation the nature of the Divine as Supreme Lawgiver. This is a powerful thesis for some believers; others may demur, claiming that human law is incommensurate with Divine Law, that human effort may be misguided, and, as I have argued, individual laws are merely transient artifacts rather than the proscriptions and prescriptions of a numinous dispensation.
The dilemma is how to act justly in ways that reflect an eternal verity rather than cultural dispositions subject to the vicissitudes of time. Immediately we are confronted with the predicament of doctrinal and communal discrepancy. For it is considered just for Christians to love one’s neighbor and seek salvation in a loving God. It is considered just for Jews to obey the Ten Commandments and, as the prophet Micah enjoins in a principal mitzvah, “to do justly, and to love mercy, and to walk humbly with thy God.” It is considered just for Buddhists to follow the “Eightfold Path” culminating in “right concentration” in a world characterized not by substance but by process. It is considered just for Jains to practice ahimsa, or non-violence, eschewing the killing of all living things, human as well as non-human. It is considered just for Muslims to follow the edicts of their holy books, the Koran and the Haddith, to conquer, tax, convert by force, enslave and kill in order to establish the hegemony of the Faith.
We see that the conception of Divine justice relies on human interpretation, which can vary in incompatible ways. If we postulate the existence of a “just” God, we have, in effect, inverted the relation between justice and Divinity. It is we who have established the relation of precedence according to our feelings or precepts; it is we who have determined what constitutes justice and subsequently attributed it to the Divine will. It seems the idea of justice is elusive and mutable, a construct whose function is to support the inviolability of the situated conscience.
The quandary is compounded by the fact that one cannot honestly posit the existence of God simply in order to anchor one’s moral code or reify the idea of justice. God cannot be after the fact or a secondary cause. The Divine comes first, the moral code follows. To reverse antecedence is psychologically disingenuous. Nonetheless, the belief in the priority of Divine justice is as necessary to human life as its nature is inscrutable to the human mind, further ravelling our predicament.
Nor does it help to contend, as does Robert Wright in The Evolution of God, that moral development can be elucidated by a “mercilessly scientific account,” since such an account cannot be falsified and is therefore non-scientific. It will remain a human theory whose evidence is anecdotal or merely narrative-based.
It has been persuasively argued that in the absence of belief in a transcendent Power and the obligations it entails, a nation and, indeed, a civilization must inexorably disintegrate. Nietzsche told us that “God is dead” and Ivan Karamazov declared, “If God is dead, all is permitted.” The sequel is gradual decline, nihilistic anarchy and eventual fragmentation. And this is especially the issue for the West, sinking into a morass of intellectual frivolity, declining birth rates, slaughter of the unborn, lack of purpose and denial of its own formative traditions. Its conception of justice is increasingly political and secular, deriving from an exclusively ideological perspective. It has assumed the prerogative of the Divine to fill the spiritual vacuum in which it is being consumed. It has succumbed to the temptation of the Serpent. How, then, to return to the “garden,” to reclaim its historical warrant?
The restoration of moral conviction and cultural stability is dependent on belief in a higher Power, but such belief cannot be imposed by political fiat or generated artificially. Filling the pews must come naturally, in genuine conversion, in strength of belief and in personal probity. Faith is not an engineering project or a rational theorem. As Immanuel Kant wondered in Grounding for the Metaphysics of Morals, “how can pure reason be practical by itself without other incentives taken from whatever source?” Kant conceded that the attempt or desire “to explain this is quite beyond the power of human reason” — a tacit admission that without revelation, morality is inevitably insecure and justice, problematic.
The vexed question of the relation between law, morality and justice inexorably comes to rest in the insoluble mystery of the Divine and in the necessity of an absolute revelation that resists interpretation. But as we’ve noted, the content of revelation and the meaning of justice which flow from the nature of the Deity will differ substantially according to deeply ingrained cultural assumptions. Or it may function like a “spandrel,” that is, an evolutionary trait supported by adaptations originally selected for other purposes, such as ensuring social coherence.
To tangle the matter even further, the Bible furnishes many examples of the changeable will of God, which has led some theologians and scholars to speculate that God also evolves morally as do human beings, and others, like Fr. Pierre Teilhard de Chardin, to argue that God inserted himself into the ascent of consciousness and the evolutionary process, creating mankind as a mirror in which to see Himself and gradually adjust His character. Thus, justice would reflect the same degree of mutability as does law. The contradiction between the relative and the absolute persists, to our discomfiture.
Despite our intuitive sense of what justice and fairness consist of, we continue to adhere to the idea of justice without being able to moor it in permanence. There is no Superhighway Hieroglyphic that can lead to a deeper understanding of the content of justice. The paradox is ineluctable. We may sense profoundly what justice demands of us in thought and deed. Yet Divine justice remains unknowable and may conflict with all human conceptions of its nature, whether as substance or as process.
I have no answer to the questions I have posed. The relation between law, justice and God escapes me perfectly. And I know I cannot speak for God or presume upon either His existence or His nature. Nevertheless, I am irrationally sympathetic to the Israeli poet Dov Ben-Zamir who, in a poem entitled “An Open Letter to God,” concludes
But between You and me,
if You are not there
to receive this letter,
or even to dismiss it as a trivial irritation,
know this for a fact.
If You do not exist
I will never,
and I mean never,
forgive You.
Amen to that.
Image credit: Pixabay
Extremely theoretical and without practical content. It is true that we cannot know what God’s conception of justice is with absolute certainty. But our intuitions on the subject cannot be dismissed as meaningless, either. The very fact that we have intuitiveconceptions of justice that conflict with how most people actually behave , and how animals behave,suggests that these intuitions come from somewhere outside the visible, natural world.