THE CHALLENGE OF JUSTICE

(Published by:

Canon Law Society of America, Proceedings of the 55th Annual Convention, Honolulu, Oct.4-7, 1993, pp.1-16.)

 

Everyone professes to be in favour of justice, and yet, no matter how sincerely just solutions to problems are sought, they are often elusive and uncertain, for there are difficulties inherent in the very idea of justice.

 

        The Uncertain Basis of Justice

I began my preparation for this paper by returning to the treatment of justice in the textbooks of moral theology that were current in my student days in the 1950s.[1] found there a strong tradition, much of which I would still accept, but I must add that, from today's perspective, I found a number of unsatisfactory elements.

I found the textbooks rather short on inspiration. [2]I believe that this came mainly from the fact that, while they were strong on analysis, they produced no satisfying synthesis of Christian life, for they separated morality from spirituality. [3] They spoke of what one should not do, but without firmly relating it to true growth towards God.  To this extent they failed to provide a firm motive for actually doing justice.  That motivation was supposed to come from other sources outside the textbooks of moral theology.

From today's perspective I also found that the textbooks were frequently too certain in their conclusions.  They could be lacking in humility in not always recognising that moral theology is an attempt to make sense of a divine reality, and so is always and invariably imperfect. [4] The textbooks often attempted to do too much of our work for us, for they sought to spell out the answers, so that we would always know what was just, and all that was left to us would be to do what was just.  They did not adequately acknowledge that an essential part of the moral life is the painful struggle to discover what justice asks of us in any situation and to take responsibility for our often less than certain decisions.

I also found very little mention of the Scriptures as a source of justice.[5] The textbooks drew instead on the treatment of justice by St. Thomas Aquinas, and he in turn had drawn on Aristotle and Roman law.  The definition of justice of the Roman jurist Ulpianus (d.228 A.D.), suum cuique tradere ("to give to each what is his or hers"), became in Aquinas, "The constant and steadfast willingness to give to each person what is his or hers by right." [6]

If, however, a definition such as this is to be the basis of our system of justice, we must realise that the definition begs the questions of what belongs to a person by right, where such rights come from, and how and by whom they are to be recognised.  Aristotle based his response to such questions on an appeal to a consensus of right-thinking and free males in the Greek city.  Under Roman law, not much belonged to non-Romans by right and slaves had no rights at all.  Even in a world that certainly saw itself as Christian, Bartolome de las Casas had to argue against overwhelming odds that the peoples of the New World were human beings and had rights.  When the British first arrived in Australia, they declared the land to be terra nullius, a land belonging to no one, because the Aboriginal people were considered not fit to hold land rights.

There is near total agreement on the need for justice, but there has never been agreement on the basis on which we should decide what belongs to a person by right.  There is a consensus that issues of justice and rights should be evaluated objectively and impartially, but there has been no consensus on the basis of such objectivity and impartiality.  As a consequence, justice is often an elusive ideal rather than a clear, knowable and agreed goal. [7]

To take one practical example, in the field of economic justice, four different elements have been put forward as the basis for a just ordering of society: equality, merit, utility and need.  Christians have insisted on the equality of all people, but so have people as different as Karl Marx and Bertrand Russell.  Aristotle stressed merit and effort, so did the Puritans, and so do most people in any society.  A strong pragmatic streak speaks of utility, that is, that a society cannot do everything for everyone, and so should adopt the pragmatic course of seeking to do those limited things that will bring the greatest good to the greatest number of people.  All religious traditions have emphasised the needs of the poor and the weak, and so do many humanists.  Historically, equality and need have always had great difficulty in being heard over against the powerful forces of merit and utility.  It is obvious that there are strong arguments in favour of all four elements, and many social philosophers of today seek to combine them, but it is very difficult to hold all four in balance, and so it is very difficult to achieve true economic justice in any society.

 

        A Pluralist Society

In practice, the rights that are recognised in any given society will depend on the philosophical, religious, ethical, political and social values that underlie each society.  As these values change, the understanding of what is just will change.  In the nineteenth century in the United States, at the height of the doctrines of social utility and laissez faire, the idea of contractual freedom reigned supreme, for it expressed a deep value in the community.  This led to the toleration of many abuses such as monopolies and restrictive trade practices.  It also served to block social welfare legislation and the Supreme Court frequently declared such legislation unconstitutional.  The Depression of the 1930s caused these values to change and then the same Supreme Court, interpreting the same constitution, began to move in a quite different direction. [8]

In some simple societies it may be possible to determine the values of the community, but in the complex, pluralist and changing societies of today, it is often very difficult even to find common ground for discussion with many people.  One can meet people who believe that if something is legal, it is moral, and that the only rights people have are those given by the State, and these convenient ideas have justified many immoral actions in the fields of commerce, politics and law.  In many countries the entire system of social welfare is not based on justice, but on the charity model of the more fortunate giving out of their surplus, and the perceived amount of surplus, rather than justice and need, determines the levels of welfare (that is, not what the poor need, but what the rich are willing to give).

 

        A Pluralist Church

The answer given by the Catholic Church to the questions raised by the definition of justice has been a heavy reliance on the natural law tradition.  Revealed divine law, and natural law interpreted by the teaching authority of the Church, have been the specifically Catholic sources of morality.  Most Christians would agree that human beings have inalienable rights that are deeper than and prior to the rights given to citizens by the State, so most Christians do follow some form of natural law tradition.  It must be added, however, that the natural law tradition has also had its problems, for in the manuals and in subsequent papal teaching it has been made to carry a very heavy weight, and it cannot be said that it has provided instant and agreed answers to all questions.

It is also true that within the Church there is today a quite wide variety of philosophical, religious, ethical, political and social values, to the point that we must now speak of the Church itself as a pluralist society.  In my childhood, most Catholics in the city where I lived were working class, voted for the same political party and tended to see the world outside their somewhat closed group as rather hostile.  Today Catholics are spread across all professions, social classes and political parties.  Far from seeing the outside world as hostile, many have embraced it with enthusiasm and absorbed much of it into themselves, at times intelligently, at times unthinkingly.

Many find themselves in a genuine dilemma between their Christian principles and the world in which they must live and work.  One can hear Christian businessmen say that Christian principles are fine, but that business is cutthroat, that one must confront other businesses on their terms and that anyone who follows Christian principles of loving one’s neighbour and turning the other cheek will simply not survive.  In a similar way, a person who seeks to be a good Christian and a good politician will face many genuine dilemmas, e.g. in relation to being truthful and honest.  Catholics are on both sides of the law and order debate and have different ideas concerning e.g. how many and what kind of migrants should be allowed into the country.  They differ from one another in their understanding of our relationship with neighbouring countries and our role in the world as a whole.

As another example, among Catholic women I sense three kinds of feminists - those who subject their feminist ideas to their Christian ideas, those who subject their Christian ideas to their feminist ideas, and those who work hard to integrate the two but face great difficulties in doing so.

It is important that we should understand that in all these cases we are not dealing with people who can be neatly divided into good and bad Catholics, but with people who are facing and grappling with genuine dilemmas.  To claim that something is a matter of justice will not evoke the same response from all people and the claim must be given a basis that other people can see, study, and accept or reject.  Within the Church, as in the wider society, the first part of justice is, therefore, to know what justice asks of us, to seek a firm basis for the rights that are claimed, and to seek agreement between people on the values to be pursued.

 

THE SEARCH FOR JUSTICE

In seeking to dialogue with the whole of society concerning justice, or even with all members of the Catholic Church, we look for a firm basis.  In the second section of this paper I shall suggest six such bases which, when combined, may offer some directions for the future.

 

1)  Analysis of Situations

By their many distinctions the older moral textbooks attempted, as it were, to analyse situations in advance.  Even small details, however, can change the whole morality of a situation, and there has been a reaction against this approach.  It must now be replaced by a rigorous analysis of each situation before a moral judgement can be made.  Moral judgement must be based on a profound knowledge of a situation, and we should be most careful not to rush to make a moral judgement before we have this knowledge.

Many Church documents now contain an analysis of the situation as the first part of their presentation.  I welcome this development, but I must add that it is often the part of the document that leaves me most uneasy about its accuracy and thoroughness.  The development is a good one, but it calls for much humility.

A special rigour and honesty is called for when the analysis involves disagreement with the ideas and attitudes of others.  In the words of one writer,

"Your exposition of your opponent's beliefs should be so accurate, so true to his beliefs, that he will gladly sign his name at the bottom of your exposition as a witness to its accuracy." [9]

Furthermore, in carrying out their analysis of the many different situations that occur, Christians should always remember that justice is concerned with attitudes as well as actions, with groups as well as individuals, and with the justice or injustice of the very structures of a society.  It must be emphasised again and again that justice does not consist in the haves (those with money and authority) deciding what should be given to the have-nots (those without power), but in the haves humbly sitting down with the have-nots in order to listen to them and then decide together what should be the very values and structures of the society.  It is only when this has been done that a full and just analysis of the situation has taken place.

 

2) Reading of the Scriptures

The first Israelites were ex-slaves who were determined never to be slaves again.  Their first great religious insight was that their god "hears the cry of the poor", and was a god as passionate about justice as they were.  In its first beginnings, the religion of Israel was based on faith in a god of justice and all else developed from this. [10] The idea of a god of love developed more slowly, and was sometimes pushed aside by the false ideas of a god who could be angry and even vengeful in the pursuit of justice.

Because the very origins of the religion of Israel are to be found in the idea of justice, the thirst for justice informs the whole of the Scriptures, and there is a treasure trove of material there that can be used in our search for justice today.  The return to Scripture is helping to restore synthesis and inspiration to the Church's teaching on justice, for in the Scriptures can be found a basis for justice agreed to by many Christians and appealing even to many non-Christians.

The Scriptures do not, however, provide instant answers.  In particular, it is wrong to take isolated phrases out of their context or to assume that the social conditions of two thousand years ago were identical to those of today.  More fundamentally, many people have problems with what they regard as the positive injustices of the god of the Scriptures, so a mere quoting of the Bible can never be sufficient in itself.

 

3)  Natural Law

Natural law theory is still a powerful force in the on-going tradition of social justice in the Catholic Church, [11]and the Church must again and again insist that human beings have certain inalienable rights that are prior to anything given by the State and that cannot be taken away by the State.

The combination of Scripture and natural law theory has already enabled the development of those fundamental principles that are now the basis of all Catholic social teaching, and that form a rich tapestry of human rights: the essential and equal dignity of all human beings, the individual's right to freedom balanced by the needs of the common good, the universal destination of created goods, the priority of labour over capital, the solidarity of the human race, the preferential option for the poor, stewardship of the earth's resources in sustainable development, and the principles of subsidiarity and participation. [12]

It cannot be said, however, that the Church has discovered some neat and universal answer to the problem of the foundation of justice.  The documents of the Church in this field do not simply build on the foundation of earlier documents.  As well as moving forward, they often quietly abandon ideas from earlier documents. [13] It has been noted, for example, that in Laborem Exercens Pope John Paul frequently praises Rerum Novarum, but Leo XIII's letter does not merit even one footnote. [14] In the same Laborem Exercens the Pope makes occasional references to St. Thomas Aquinas, but develops an argument that depends very little on natural law.  Rather than give a philosophical definition of work and draw conclusions from it, he simply describes work in its varied reality and his argument is largely biblical. [15]In Veritatis Splendor, on the contrary, even though the Scriptures are quoted frequently, the argument is based almost exclusively on natural law.

 

4)  The Virtue of Justice

The very first thing to say about justice is that it is a virtue, and by this is meant that it is an acquired habit.  If we constantly act justly, we acquire the habit, that is, the virtue of justice.  If we constantly act unjustly, we acquire the habit, that is, the vice of injustice.  A person who has the virtue of justice will, from long practice, instinctively react justly when faced with a new situation, while a person who has the vice of injustice will, from equally long practice, instinctively seek an advantage over others in every new situation.  Thomas Aquinas expressed this idea by speaking of justice as "a constant and steadfast willingness".

Virtues do not come easily.  They require constant hard work until our minds instinctively follow that habit.  Justice is a virtue because the will naturally seeks what is good for self, but not, without virtue, what is good for others. [16] Justice is the virtue that protects human beings from one another, and no set of laws and no police force can protect people as well as the virtue of justice practised by the individuals who make up a community.

The hardest task of all occurs when, from our upbringing and without any deliberate fault of our own, we have acquired habits of thinking and acting that we later come to realise are unjust.  As a few examples among many, men have inherited unjust attitudes towards women, white people have inherited unjust attitudes towards people whose skin is of a different colour, people of developed countries have become used to acting unjustly towards people of poorer countries, people of today frequently act unjustly towards people both of the past and of the future.  Christians have many unjust attitudes towards Jews and Muslims, bishops and priests have inherited unjust attitudes towards religious and laypersons. [17] In these cases, in learning good habits, we must first face the formidable task of unlearning and overcoming bad ones.  Indeed, these unjust attitudes can often be true addictions, and then they are as difficult to overcome as any other deep-seated addiction. [18]

To point to the unjust actions of others and to wave placards in protest is the easiest part of justice.  To see injustice in one's own life and to work hard to overcome it is far more difficult.  When the new Code of Canon Law became available in 1983, it was noticeable that many people eagerly read it to discover their own rights and other people's obligations, but were far slower to study their own obligations and other people's rights. 

In relation to our own actions and attitudes, we must always remember that there is no agreed basis of justice, that justice is often elusive and changing, that what one group considers to be of the highest importance can be of little importance to another group, that the will naturally seeks what is good for self, that we have inherited habits of injustice in our own lives and structures of injustice in the societies and institutions in which we live, and that justice demands humility.

Recent decades appear to see us living in a very litigious world, where rights are constantly prosecuted with vigour.  I am sure that on many occasions this is the only right and proper thing to do.  On the other hand, a marriage in which both parties are constantly insisting on their rights is not a healthy marriage, and a society in which all citizens are constantly insisting on their rights is not a healthy society.  And one could add that this attitude does not help to make the society more Christian.  Litigation is usually based on a win-lose premise, but most disputes are better resolved on a win-win basis.

An inevitable consequence of the spirit of litigation has been that people have begun to speak of their rights in more and more absolute terms, even though the exercise of rights must always respect the rights of others.  For example, you have the right to freedom of movement, to go wherever you wish, and so do I, but if you and I arrive in our cars at the same intersection at the same time, one of us must accept a limitation on the exercise of our right.  If we both insist on an absolute right to unlimited freedom of movement, there will be an accident, and an accident is not freedom.  Canon 223, #1 says,

"In exercising their rights, Christ's faithful, both individually and in associations, must take account of the common good of the Church, as well as the rights of others and their own duties towards others."

We never lose our basic rights, but we must accept restrictions on the exercise of these rights for the sake of the rights of others.

 

Justice and Love

If I owe you a thousand dollars and you fall into serious financial difficulties and come to me, and I give you a few dollars for a meal, it is obviously not charity on my part.  First let me pay you the thousand dollars I owe you in justice and then, and only then, can we begin to speak of charity and love.  In the same way, there is no love present in giving money to poorer nations while at the same time knowingly refusing to pay a just price for their exports. [19] Without justice there can be no love.  People who suffer injustice know this instinctively.  If they hear others speak to them of love while still being unjust, they know the love is false, while if they see people engaged in the long struggle towards justice, they know that they are already listening to a message of love.

On the other hand, Christian tradition is profoundly right in speaking of the primacy of love and in insisting that love must inform all virtues. [20]Because of sinfulness, the motive force of justice will frequently not be enough to get justice done and the power of love will have to reinforce it. [21] Aristotle said that, if people are friends, there is no need for justice between them, whereas to be merely just is not enough. [22]The ideal in human relationships will always be this friendship or love where justice is automatic.  Justice alone is not enough, for love seeks to create an attitude of unity, of belonging to each other, while justice stresses the otherness of the one to whom it is given.  Justice is given because of the equality of the other, and liking the other does not come into it.  Justice on its own is impersonal and impartial, bent on observing equality in human conduct. [23]More cannot be expected of it unless it is accompanied by friendship and love.  Thus there can be no true love unless it is based on justice, but there will most probably be no true justice unless it is accompanied and motivated by love.

Justice not motivated by love can easily become selective justice, where a person is very concerned about some particular cause, but ignores other issues of justice in his or her own life.  The virtue of justice can never be selective, for the virtue is independent of the rational basis of justice: it is the willingness to give to others whatever is theirs.  A just person will know that it is not possible to resolve all issues of justice immediately or even over a long period, but will always be willing to give to all others whatever is theirs.

 

Justice and Holiness

The adjective "just" should never be reduced to meaning no more than "not unjust".  When Matthew's gospel says that Joseph was "a just man" (1:19), or when Mark's gospel speaks of John the Baptist as "just and holy" (6:20), they certainly mean far more than that Joseph and John were not unjust.  "Not unjust" refers to a person's actions, whereas a person should only be called "just" when, in addition to not performing unjust actions, there is a settled and practised intent of will to pursue justice, that is, where there is present a true virtue of justice accompanied and motivated by the virtue of love. [24]

It follows that morality should never be separated from holiness.  Faith is not simply an act of the intellect, it is the response of our whole person and being to the call of a loving and just god.  As such, the response of faith cannot exist without justice and love.  Furthermore, the moral content of the response of faith is not the attempt to produce a certain quantity of love and justice in our lives, but rather the attempt to reproduce the quality of God's love, justice, peace, truth and holiness in our lives.  It follows that Christian morality is not simply about right and wrong, it is about developing one's whole potential, natural and supernatural, and so is about holiness.  The saint is the truly moral person and the truly moral person will be a saint.

The commandments must, therefore, be complemented by the beatitudes.  The commandments express negative requirements (thou shalt not), but even if we observe every negative commandment perfectly, it does not say very much about us, for it says only what we have not done.  The negative commandments are a necessary basis, for observing them means that we have not caused positive harm to others, but they can never be the building itself of true moral living.  "Thou shalt not" must become "Blessed are those who hunger and thirst for what is right, for they shall be satisfied."  An adequate moral theology must seek to integrate all aspects of human life into a single living reality.  After analysis there must be synthesis.

 

5)  From Needs to Rights

All people believe that they have a right to have their more important needs met and, at least in theory, they will grant that other people must have this same right.  The argument from needs to rights is one that most people will accept, at least in theory.  It can at times be a good basis on which to arrive at an agreed basis of justice.  There are, however, difficulties in this field too.

All people have needs - physical needs, emotional needs, social needs, intellectual needs, spiritual needs.  When different groups within a community have different needs, there can be tension between them as they compete for limited resources.  This is true, not just of physical needs, but of all needs, even spiritual needs.  For example, all Christian churches have Sunday services and different people can demand that this limited resource be presented in such a way as to meet their particular spiritual needs.

The basic tension in any community is that between the needs of the individual and the needs of the community, but other tensions can also be named, e.g. between the need for stability and the need for flexibility, between the need for the unity of the whole community and the particular needs of local areas.  These are all real tensions between real needs of real people.  Which side of any particular tension an individual feels more strongly will depend on such things as life experience, age, perceived needs, public position and responsibilities, as well as the different values I spoke of earlier in this paper.  Because people's needs are important to them, there is usually a strong emotional content to the tensions.

Law should exist at the point of tension between these opposing needs.  A law that so stressed unity that it allowed no room for local needs would not be good law, while a law that gave so much latitude to local needs that it endangered the unity of the whole community would also not be good law.  This explains why law has always been criticised by people on both sides of any particular tension, for each side will always want the law to come closer to its own needs.  Since no one can dictate to others what their needs should be, the only possible way out is to seek a win-win solution, where each side feels that its most basic needs are being met.

This is a delicate and difficult task.  The first requirement is that all people seek to understand the needs of other groups and recognise this as a duty that is owed in justice.  The second duty is to distinguish between essential needs and less important needs and to be willing to sacrifice our less important needs for the sake of the essential needs of others.  The third duty is to be constantly aware that the starting point and the finishing point must always be people rather than the institution, for institutional needs are valid only in so far as they are true needs of people.

 

6)  The Doing of Justice

Notwithstanding the need for careful analysis of complex situations, there has also been a strong movement within the Church towards the positive doing of justice.  The lack of consensus on the rational basis of justice can lead to a paralysis in action and then injustice can be perpetuated.  Whether it be from the Scriptures, or from reason, or from a consensus of good people, or from perceived needs, or from an innate sense of right and wrong, a person can frequently know with certainty that justice demands a certain action, and then the only important thing is that justice be done.  Simply knowing what is just is not a virtue, and justice not done can be injustice.

It is in this field of the doing of justice that there has been a strong emphasis on the need to reunite morality and spirituality.  In a famous sentence, the bishops of the 1971 Synod said,

"Action on behalf of justice and participation in the transformation of the world fully appear to us as a constitutive dimension of the preaching of the Gospel...." [25]

It is a field in which the Church must always look first to itself.

"While the Church is bound to give witness to justice, she recognises that anyone who ventures to speak to people about justice must first be just in their eyes.  Hence we must undertake an examination of the modes of acting and of the possessions and lifestyle found within the Church itself." [26]

This is a most important truth.  If injustices within the Church itself are not rigorously addressed, and seen to be rigorously addressed, any talk of justice to others will be dismissed as hypocrisy and cant.

 

APPROACHING A QUESTION OF JUSTICE

I shall conclude this paper by offering a series of questions that we might ask when approaching any question of justice.

Analysis

What fields of expertise are required in order to make a rigorous analysis of this situation?  What knowledge, skills and experience do we ourselves not possess, and so must seek from others?

How many different groups of people can be named who might have rights in relation to the particular question that is being discussed?  What rights do each of these groups have?

Are any of the rights absolute rights?  If not, what other rights must be balanced against them?

To what extent are the rights in this field socially conditioned?  What philosophical, religious, ethical, political and social assumptions are present in different individuals?  Would the rights involved here be accepted by everyone?  Would they be given the same importance everywhere?

Are there areas where, without any ill will, people have inherited unjust attitudes?

Are there injustices in the very structures of society in this field?  Are there areas in which the more powerful must listen to the powerless in deciding together what should be the very values and structures of the society?

In what areas must the temptation be resisted to do no more than wave placards at the perceived injustices of others?  In what areas do we need to look at ourselves?

If our analysis contains disagreement with the views of others, would they gladly sign their names at the bottom of our exposition as a witness to its accuracy?

At the end of our analysis, have all the facts of the situation been properly understood?  How sure are we that there are no other factors present that we have not considered and which would change the whole morality of the situation?

 

Needs and Rights

What are the needs that are felt on each side of this question?  What efforts are being made by the people on each side to understand the real needs of the people on the other side?  Which needs are essential and which are less important?

Does the current law exist at the point of tension between the opposing needs or does it favour one side unduly?

Is there any way in which conflicting ideas and needs can be resolved on a win-win basis?

 

Theological Reflection

What passages or ideas from Scripture bear in a particular way on this question?

What does the social teaching of the Church have to say about it?

Do any of the people involved have rights that are prior to rights given by the State or the Church?  What is the basis for these rights?  Do all people accept this basis?  What ground for discussion exists with people who do not accept this basis?

 

The Doing of Justice

Are there any areas where justice not done immediately would be injustice?

Even if justice demands immediate action, are there areas in which we must first put our own house in order before we can rush out to criticise the injustices of others?

 

The Virtue of Justice

If "being just" is more than "not being unjust", what are the full demands of justice in this field?  What attitudes of mind are necessary?

In any suggested solution, is justice inspired by love for all those persons who are involved?

Is there synthesis, the bringing together of all the component parts of human life?  Is there a quest for holiness?  Does the suggested solution inspire people to want to act?

Is there sufficient humility in the manner in which the question is being approached, sufficient awareness of our limitations in trying to make sense of a divine reality? (And this may well be the most important question of all).