Friday, September 28, 2007

A Framework for Thinking about Justice

As promised, I want to start the discussion about the basis for any "Christian" view of justice. These, I think, are the essential building blocks.

The root of any Christian view of justice is, of course, Jewish, since it is based on God's relationship with his chosen people as recorded in the Old Testament:
  • God is the Creator of the world and lawgiver; we are subject to him and receiver of the law
  • We are subjects of law, not "creators" of it in the ultimate sense
  • God is just in his very character; he is just, so we know justice by his acts
  • God is a lawkeeper; he is bound by his word, his law
  • With community comes law, but law comes from outside, from above (see, Mt. Sinai), yet it exists before it is revealed or posited (see, Exodus 18, where God's law is "made known" to the people through the individual judgments of Moses-- before the Ten Commandments are revealed on the mountaintop).
  • The logical consequence of this truth is Lex Rex, the Law is King, and Magna Carta. Unless law is "outside" human beings, and more than simply a human artifact, why should the highest of boss of men be bound by it?

For Orthodox Christianity, however, the atonement of Christ is the richest and most significant expression of justice.

  • God demonstrates his JUSTICE in what Christ did on the cross
  • Jesus was punished for our sins AND paid the penalty
  • Jesus satisfied the demands of justice by taking punishment and appeasing the wrath of God
  • Retribution and restitution are therefore at the heart of law and justice
  • The atonement is consistent with, and the fulfillment of, lex talionis (the law of proportionality--"an eye for an eye") and other OT teachings and caselaw

In the realm of civil justice, although justice requires restitution and retribution at its heart, human beings are limited in their authority.

  • All authority resides in God, and no human institution has any authority unless it is given by God.
  • God delegates his authority, not just to the state, but to various human institutions, including the church, the family, individuals, and the exercise of that authority is limited to its own area of jurisdiction.
  • The state’s (or church’s or family’s) authority is not coextensive with God’s (see, for example, the Sermon on the Mount, Jesus' command to render to Caesar what is Caesar's and to God what is God's).
  • State power is therefore limited, by its very nature, and is incompetent to demand duties owed to solely to God, or to parents, or the local congregation, for example.

This is a starting place, and each of these ideas need to be explored further. In addition, I haven't begun to address the problem of the diversity of worldviews represented in the so-called secular society, and the "problem" of religious liberty. At least we have more to address in days to come!

These ideas are simply a sketch of some important themes that have been discussed in much more detail by others. I suggest that interested readers find these articles by my friend and colleague Craig A. Stern:

The Common Law and the Religious Foundations of the Rule of Law Before Casey, 38 U.S.F.L. Rev. 499 (2004).

Crime, Moral Luck, and the Sermon on the Mount, 48 Cath. U. L. Rev. 801 (1999).

And this important work by Liberty Law School professor and Associate Dean, Jeffrey C. Tuomala:

Christ’s Atonement as the Model for Civil Justice, 38 AM. J. JURIS. 221 (1993)

In addition, a new book from InterVarsity Press, Church, State, and Public Justice: Five Views, presents a variety of historically Christian approaches, framing and debating the issues very well.

Friday, September 21, 2007

Perspectives on Justice

I had a great time at Northwestern Law School on Wednesday as a panelist for Faith and Law Week. The panel provided three perspectives on justice: Jewish, Christian, and atheistic.

Thanks to Trevor Stiles, leader of the Christian Legal Society group at Northwestern, and Garrick Menlo, the president of the St. Thomas More Society, for inviting me. The organizers, in my humble opinion, were better than the panelists for the most part.

Here are the questions with which they framed our discussion:

Overview: Is there such thing as a Jewish/Christian/Atheist justice theoretical system? How has your faith background influenced the development of our American justice system?

1. Is justice a human or divine in origin? If it’s in fact divine, how should a secular society resolve to undertake its administration?

2. God’s justice, by definition, is perfect justice. Men fall somewhat short of that. How imperfect is our justice comparatively? How close can we get to the ideal? Should we even try?

3. The real differences between your point of view might be one thing, but your perceived differences might be something else altogether. Could you comment on what you might think the differences are between your own religion’s take on justice from other religion’s takes on justice.

4. Historically, God’s justice has always been a bit of an equalizer. People could say that, yes, they are oppressed now, but in the end justice will be served. Without that concept, is the world a much less just place? How far should civil society go, then, to make life on earth more “just?”

5. Justice is not just about punishment. It is also about mercy? What does your faith background do to explain, encourage, or understand acts of mercy?

6. What is the place of repentance, atonement, and forgiveness in a faith based justice system? Should a civil justice system treat it similarly?

This is a nice framing of key issues related to how we operate within the cultural institutions concerned with law and justice. I'll address these questions on the blog over the next several weeks.

Thanks, again, to Trevor and Garrick.