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.


Cordell Schulten said...

While lex talionis would appear to be a fundamental expression of a just law, a fuller understanding of the idea of "justice" exhibited in the Torah requires an exploration of the relationship of "justice" and "mercy". Why is it that two of the most notorious murderers (i.e. Cain and Moses) in the Torah were not punished in accordance with lex talionis? Is it possible that "justice" is not merely tempered by "mercy", but that mercy is itself an essential component/ingredient/dimension of justice?

I am currently teaching a course at Fontbonne University on the topic of "Judaism and the Foundations of American Law". Through my research for this course's development I have become increasingly convinced that the single most important contribution to the understanding of "justice" that has been made by the Judaic tradition is the role of "mercy" in human's efforts to work out justice in our relationships whether they be personal or within civil society.

I'm in the process of developing these thoughts more fully and intend to post them for consideration and comment in the near future. `Til then, I would offer these words from Portia:

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.

Regent '90 said...

How about providing working links to Stern's and Tuomala's law review articles? I cannot seem to be able to aces them on the internet. Hope you can help.

Mike Schutt said...

Sorry, I can't help-- they're not available online that I know of.

Lexus/nexxus and hard copies from a law library are your best bet.


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