JUSTICE: HUMAN AND CHRISTIAN VIRTUE

JUSTICE: HUMAN AND CHRISTIAN VIRTUE

Introduction

If human dignity is the origin and end of social and political morality and human rights are the expression of that dignity, then justice is the the center of this discipline. This is because justice guarantees and protects the dignity of the person. The task of justice is to regulate the reciprocity of rights and duties among among people. John Paul II teaches that love for others is concretized in the promotion of justice (C.A., 58). Justi Justice ce protec protects ts and guarant guarantees ees fundament fundamental al rights rights and duties duties.. Justic Justicee signif signifies ies the conditions conditions which affect affect the different different sectors sectors of society and it assesses assesses them.. It watches the disparity in economic opportunities opportunities and moderates it. Moreover, it orients social social circumstances so to favor peaceful co-existence among people. In the field of praxis, justice occupies that place which truth represents in the field of theory theory.. Thus, Thus, truth and justic justicee compri comprise se the two most importa important nt roles in human human existe existence nce:: thought and life. According to J. Rawls, justice is the the first virtue of social institutions institutions while truth refers refers to systems of thought. Any theory no matter how attractive attractive and clear must be rejected or revised if it is not true. true. Therefore, one can say that it is not important that laws and institutions be promulgated and efficient; if they are unjust, they must be reformed or abolished.1 This means then that inasmuch as truth is the guarantee of systems of thought, justice belongs to laws, which regulate the economic and political systems. If it is not right to maintain human co-existence based on a lie, it is also not possible to bring order in social life through unjust relationships. Because of this, injustice must be eradicated in social life life and it must not be justified justified by anything. Rawls adds: Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice justice denies that the loss of freedom for somee is made right som right by a greater greater good shared shared by oth others ers.. It does not allow allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties liberties of equal citizenship are are taken as settled and the rights secured by justice are not subject to political bargaining or to the calculus of social interests. interests. The only thing that permits permits us to acquiesce in an erroneous erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, activities, truth and justice 2 are uncompromising. uncompromising.

Plato related related justice justice to good, and more concretely concretely to physical good or health. health. For him, injustice is equivalent to an infirmity. infirmity. In the dialogue in The Republic this question is asked: How will it be clear clear that justice or injustice injustice dominates our actions? How is it possible? It is because good and evil are exactly exactly alike. They belong both to body and soul. soul.3

For Students Private Use

Justice

2

He explains that since health supposes order in the different parts of the body and infirmity comes from from disorder, disorder, in the same manner, it is also true true concerning concerning justice and injustice. injustice. He maintains that to secure justice it is necessary to establish a hierarchy among the different parts of the soul which subordinates subordinates some to others in accord with nature. On the other hand, injustice injustice is promoted if the different parts of the soul are subordinated in ways ways contrary to nature. To sum up, justice is one of the fundamental notions since it is related to truth and good while injustice connotes lie and infirmity. infirmity. Therefore, inasmuch as the theoretical theoretical order is founded founded on truth and that concrete human existence demands health, the equity of social life demands that it be urgently governed by justice. If the object of social and political morality is respect for the person living with others, justice occupies a primary place because its function is to reach an equitable situation in the basic structure structuress of society. society. The economic economic conditions conditions and political political instit institution utionss indicate indicate this. On the contrary, from injustice injustice the worst evils arise. The greatest and most repeated form of misery that human beings suffer is injustice. I. Justice in the History of Ethical Thought

The concept of justice is one the most basic ideas in human existence. It is a natural natural and spontaneous spontaneous notion notion which dwells with man or woman in his/her relationshi relationship p with others. It is common knowledge that a child when treated unjustly will protest against arbitrary actions which he/she thinks are against him/her or do not contribute to his/her well-being. This This idea idea is logical logical and original original.. It accompanie accompaniess man throughou throughoutt histor history y acquir acquiring ing tonalities and contents relative to the rhythm rhythm of the time. It is not easy to trace the history of the the concept of justice, not is it easy to write about the feelings evoked by this word in history. Nonetheless, as a simple testimony, we consider two opposing positions: the initial stage of the Western thinking and the the meaning which justice has in the culture of our time. The gap between these two periods perhaps represents the birth and the culmination of a concept that is so decisive in the history of humanity. 1. Justice in the Graeco-Roman Culture

In the Western culture the word justice was present in the first reflections of Greek philosophy. Plato writes in The Republic that justice is a truth transmitted from the past. 4 In the Roman Roman cultur cultural al world, world, St. August Augustine ine affirm affirmss that that the word justi justice ce was coined coined from from time time 5 immemorial. In Nichomachean In Nichomachean Ethics, Ethics, Aristotle situates the theme of justice in Chapter V to signify that its its study must be the center center of ethics. ethics. In Chapter Chapter I he cites cites a proverb proverb which which affirms affirms that the concept of justice is received received from the past. Consequently, justice is like the womb womb from where the other virtues are born and increase. Here is a text where Aristotle shows the height reached by the virtue of justice in the Greek ethical reflection:


Justice

3

Justice understood in this this manner is a complete complete virtue. However, it is not an absolute absolute and purely individu individual al virtue. virtue. It is relative relative to a third virtue; virtue; and usua usually lly this is what makes it the most important among the virtues. virtues. The rising and the setting of the sun are not worthy of admiration. admiration. From here comes comes our proverb: “All the virtues are found in the womb of justice.” (Teognis) (Teognis) I add that on an eminent level it is a complete complete virtue, because it is the application of a complete and accomplished virtue. Whoever possesses it can apply his virtue virtue in relation relation to the others and not only only to himself. himself. Many can be virtuous in relation to their very person but they are incapable of virtue with regard to others. I also find that the saying saying of Bias is very reasonable. “Power, he would would say, is the proof of man.” In effect, the judge dressed with power power is not somebody in relation to otherss since he is alre other already ady in communion communion with them. For the same reason, reason, among the other virtues, justice seems to be the only one which constitutes an external good, a good for the others, and not for one own self. This is because it is put into practice with regard to others and it does not do more than what is useful for the others who could be either judges or the entire people. The worst among men is one whose perversity damages his own self and also his neighbors’. However, the most perfect perfect person is not the one who practices his virtue for himself himself but rather he practices it for others. others. This is a thing that is always very difficult to do. Thus, justice cannot be considered simply as a part of virtue. It is the entire virtue. Injustice which is its opposite opposite is not a part of vice, it is the whole vice. Therefore, one sees in the preceding preceding considerations the difference difference between a virtue and justice. In its depth, a virtue is the same as justice; justice; however, it is not identical identical with justice. Inasmuch as this virtue refers to the other, it is justice and inasmuch as it is a personal habit, it it is indeed truly a virtue. virtue.6

As a consequence of the pre-eminence of justice, this doctrine is often repeated among the Greek philosophers: “It is a greater evil to commit injustice than to suffer it.” 7 Moreover, Moreover, “it is never never licit licit to commit commit an injust injustice ice since since the height height of ignomi ignominy ny is being being unjust. unjust. To commit commit injustice against me brings more damage to the one responsible for the act than to my own self. Whoever commits injustice injustice is more to be pitied pitied than he who suffers it.” it.”8 The language of the Romans is no less profound in dealing with the virtue and the exercise of justice. justice. For the Romans, justice is an ethical virtue which affects human behavior. The notion of justice is so connected with the concept of the person that Marcus Aurelius said: “To be without justice is detrimental to human nature.” Cicero gives to justice a supreme supreme value among the virtues: “In justice virtue achieves its maximum splendor and for this reason men are called virtuous.”9 Cicero Cicero defines justice justice as referring referring to public usage. He affirms affirms that justice gives to each 10 person his/her own dignity. dignity. To this he adds: “The foundation of justice is faith, that is, the firmness firmness and the sincerity sincerity in the given word and in the agreements.” agreements.” The consequence consequence of this is the birth birth of the Roman Law, that is, the positive positive justice. justice. The Roman Law served served as one of the most important contributions of the Romans to the Western culture. By way of example, let us take this text text from Cicero. Cicero. It gives us an idea of natural natural law which according to the Roman Law establishes establishes the value of any law. It is the basis basis of justice. Certainly there exists a true law in accord with nature, known by all, constant and everlasting....It is not right to add or subtract anything nor to completely eradicate it. Neither is there there need to look for for someone to comment comment or interpret interpret it. There is no one law law in Rome, another in Athens, another in some other place now or in some future age but always alwa ys the law rema remains ins eternal, eternal, immutable immutable binding all humanity. humanity. Ther Theree is only one common God, teacher and lord of all, author, petitioner and promulgator of this law.


Justice

4

Whoever does not guard it betrays his own self and reviles human nature and for that reason he suffers maximum punishments even if he tries to escape from them. them.11

2. Justice in the Present Culture

Today justice justice is one of the most invoked words in social social and political life. life. Political Political and economic systems, social programs and cultural movements have used justice as the key word in their declarations in a way that it constitutes constitutes one of the most most common slogans of our time. As a result of this the word justice has a great attraction for peop le. However, as expected the use of the term repeatedly has stretched its meaning and the misuse of it it has become ideologized. Thus, the different ideologies have made justice what they express express what they wish and so the word justice justice now has different different meanings. meanings. It connotes connotes real changes of content according to the interpretations made by different economic systems and political programs. At times, these alienations come from dividing the area of justice and in changing the accepted meaning of justice according to the changing situations of our times. The concept of justice understood in the sense of giving to each one his/her due has been divided, according to the different interpretations of: “his/her due,” into “justice in the statee of posse stat possession ssion,” ,” justice justice of outp output, ut, and social justice. justice. Thes Thesee could at times be under und ersto stood od as “ju “justi stice ce of opp opport ortuni unitie ties” s” or “ju “justi stice ce of nec necess essiti ities. es.”” All these these interpretations interpretat ions can give reasons why they are important. important. However, each one of these may arrive at a different different result. Hence, one ought to determine these meanings meanings at the 12 outset.

In effect, different definitions are determined by the interpretation of unicuique suum (to each his own). For example, example, if one deals with with defending what pertains pertains to “each one” according according “to the state of possession”, that person endeavors to look at a juridical state of the property in order to give give some guarantee guarantee to such a right. One can also have recourse recourse to this principle principle in defense of properties that that were unjustly acquired. The acquisition of property must be juridically legitimatized; however, it is necessary that the ways of access to property are executed with justice so that their social function is safeguarded. safeguarded. II. Biblical Data about the Value and Meaning of Justice

The concept concept of justic justicee is central central in revela revelatio tion. n. In this theme theme are equally equally introduc introduced ed ideologies in such a way that they propose a type of exegesis which we can call temporal and spirit spiritual ual.. The reason reason is that they interp interpret ret the texts texts with social social categor categories ies rather rather than than with with 13 religi religious ous ones. The latter latter is a valid valid hermeneut hermeneutica icall criter criterion ion.. Althou Although gh it is certai certain n that that religiously the bible illumines and judges the real situations of society of the period, error comes in an interpretation that is excessively political. In the specifical specifically ly hermeneutic hermeneutical al field field there are two operations operations based on philologica philologicall analysis: (1) those authors who endeavor to always discover the social meaning in the root word sedekah from which the most important words to designate justice come from; (2) those who


Justice

5

maint maintain ain that that the root root word word sedekah and its its deriva derivativ tives es only only have an ethica ethicall and religi religious ous meaning. Other authors will talk about an evolution in the meaning of the terms terms relative to justice in the rhythm of the history of Israel. Start Starting ing from from these these two extrem extremes es and avoidi avoiding ng unneces unnecessar sary y polemi polemics, cs, we intend intend to summarize the most evident and less questionable data by following two paths: etymological analysis and a brief exercise of biblical theology. 1. The Terms Just and Justice in the Old Testament

As a whole, the vocabulary around this theme is very abundant: justice, just, to do justice, the justice of Yahweh and of other people. They are repeated in the Old Old Testament many times. There are around 800 texts which w hich allude to this matter. A) Justice

The word justice is found in the Old Testament 213 times and is expressed in two words, sédeq ( saddiq/sedaqá) saddiq/sedaqá) which appears 81 times and dàga (rasa) rasa) which is mentioned mentioned in 132 texts. Both are frequently frequently repeated repeated in the Wisdom books and they both have a religious religious sense. They mean “to be just with God” inasmuch as the people of God observe his precepts and therefore they “fulfill his will.” In this sense the response of the people to the Ten Commandments and the other precepts given to Moses is understood: “[O]ur justice before the LORD, our God, is to consist in carefully observing all these commandments he has enjoined enjo ined on us (Dt 6:25). The Book of Proverbs pronounces that the wicked cannot practice justice: “The violence of the wicked will sweep them away, because they refuse to do what is just” (Prov 21:7). On the contrary, contrary, God cannot but fulfill fulfill justice: justice: “Does God pervert justice? justice? Or does the Almighty pervert the right? right? If your children sinned against him, he delivered them into the power of their transgres transgression. sion. If you will seek God and make supplication supplication to the Almighty, Almighty, if you are pure and upright, surely then he will rouse himself for you and restore to you your rightful place” (Job 8:3-6). The prophet Isaiah laments about the perverted situation in Jerusalem: “How has she turned turned adultere adulteress, ss, the faithful faithful city, city, so upright! upright! Justic Justicee used used to lodge within within her, but now, now, murderers” (Isa 1:21). However, after announcing the punishments on the people of Jerusalem, Jerusalem, Isaiah hopes: “I will will restore your judges as at first, and your your counselors as in the beginning. After that you shall be called city of justice, faithful city” (Isa 1:26). There There are many texts texts that that have direct direct allusi allusions ons to justi justice ce in terms terms of the equitabl equitablee relati relations onship hipss among among people people.. For example example,, the Book of Leviti Leviticus cus denounces denounces injusti injustice ce in judgments, weights and measurements with the words sédeq/sedaqá words sédeq/sedaqá:: “Do not act dishonestly in using measures of length or weight or capacity. You shall have a true scale and true weights, an


Justice

6

honest ephah ephah and an honest hin. I, the LORD, am your God, God, who brought you out of the land of Egypt” (Lev 19:35-36). The Book of Proverbs unites the teachings which which the Israelites have to learn. Among the fundamental attitudes found among the Israelites are: “righteousness, justice, and equity” (Prov 1:3). The ethico-theological meaning of this text is very evident; however, above all, it points out the importance of justice among people. It is likewise worth mentioning the different testimonies to which an Israelite has recourse to defend defend him/he him/herse rself lf against against his/her his/her adversar adversaries ies:: “O God, by your your name name save save me. By your strength defend my cause and do men justice (Ps 54:3). Finally, Leviticus warns the person charged to administer justice to act with equity: “You shall not act dishonestly dishonestly in rendering judgment. Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly (Lev 19:15). B) Just

This This noun is referred referred to 213 times. times. Of that number number 189 times times it is used in the Old Testament through the word saddîq word saddîq and 24 times in the New Testament using the word sédeq word sédeq.. The just means the good person without reference to human law but to the divine precept. Thus, the Book of Proverbs puts in opposition the future of the good person and the evil one: “The hope of the just brings them joy, but the expectation of the wicked comes to nought” (Prov 10:28). The Book of Wisdom pronounces that “the wicked shall receive a punishment to match their thoughts, since they neglected justice and forsook the LORD” (Wis 3:10). Already the just is the pious servant, the friend friend of God. Thus to Noah God said: “Go into into the ark, you and all your household, household, for you alone in this age have I found to be truly just” just” (Gen 7:1). The less just will be likewise likewise saved in Sodom: “Then Abraham drew nearer to him and said: Will you sweep away the innocent with the guilty?…I will not destroy it” (Genesis 18:23-32). The Messiah is also called just in the poem of the Servant of Yahweh (Is 53; Wis 2:18). The people ask Yahweh: “Let justice descend, O heavens, like dew from above, like gentle rain let the skies drop it down” (Isa 45:8). The just par just par excellence is Yahweh even to the point that this term may be an attribute or a name for God (Gen 18:25; Ism5:15-16). There are also texts which make direct reference to the just by reason of his/her practice of justice in social co-existence. The Prophet Ezekiel says: “If a man is virtuous--if he does what is right and just…” (Eze (Eze 18:5). On the part of Deuteronomy, Deuteronomy, it recommends the exercise of justice: justice: “I charged your judges at that time, ‘Listen to complaints among your kinsmen, and administer true justice justice to both parties parties even if one of them is an alien’” alien’” (Deut. 1:16). 1:16). These two texts texts show


Justice

7

the relativity of the theory which professes a purely chronological evolution of the concept of justice in the Old Testament. However, in the cases referring to justice in life together, practically always, the just is understood as synonymous with the pious and the good. As an exception to those who make an exclusive social reading of the Old Testament, there are others who adhere to those two conclusions: 1) It is not easy easy to schematize schematize the abundan abundantt testimonies testimonies which which mention mention the word word justice justice in the different books of the Old Testament. Testament. The difference in context in which which they are found is such that when they are explained from a civil point of view diverse interpretations are possible especially especially when they are chosen and are cited by those who favor a special theory. theory. 2) The reading reading of these these biblical biblical testimonies testimonies is insepara inseparable ble from the religiou religiouss context context in which they were written. Therefore, in all cases they have an ethico-theological ethico-theological dimension. dimension. For this reason, when sédeq is referred to as human justice, it cannot be understood only in the legal or strictly juridical sense.

2. Vocabulary in the New Testament

Justi Justice ce and its derivati derivatives ves are express expressed ed in the New Testament Testament with with the word word díke, dakaisíne, dídaios, diakaíon. diakaíon. Justi Justice ce (díke) díke) is foun found d only only 3 time timess with with a mean meanin ing g clos closee to a cond condem emna nati tion on or unchangeable judgment (Acts 28:4; 2Thes 1:9; Jude 1:7). In Acts 25: 15 the word “according to law” is used in the sense of a sentence of condemnation referring to Paul’s situation in Cae sarea. A) Justice

The noun dakaiosíne (justice) is found in the New Testament 91 times with a distinct but complementary meaning in the different writings in the New Testament. A common common meanin meaning g is its equival equivalent ent to sanctity sanctity.. There There are so many many exampl examples es and occasi occasions ons that these two words, words, justice justice and sancti sanctity, ty, are cited cited as synonymo synonymous us (Lk 1:75). 1:75). In Matthew there are six texts in which these similarity is obvious: (Mt 3:15;p 5:6; 6:1, 33; 15:20; 21:32). Evil and justice are likewise put opposite each other: "You son of the devil, you enemy of all that is right, full of every sort of deceit and fraud. Will you not stop twisting the straight paths of (the) Lord?” (Acts 13:10). There are 63 texts in St. Paul where he deals with the theological concept of justification. 33 of them are from from his Letter to the the Romans. Paul uses frequently the expression expression “the justice of God” (dikaiosíne (dikaiosíne Zeoû) Zeoû) (Rom 5:1-2; 5:1-2; 9:30-31; 9:30-31; Gal 2:16, 21, etc. etc. According According to St. Paul justice justice cont contai ains ns fait faith h in Jesu Jesuss Chri Christ st (Rom (Rom 3:22 3:22); ); ther theref efor oree his his fait faith h in Chri Christ st is “reck “reckon oned ed as righteousness” or justice (Rom 4:5).


Justice

8

It is evident that Pauline justice and social justice justice hardly have anything in common. This shows that the word justice in English is a very imperfect synonym for the Greek word (or the use of Paul in the New Testament) Testament) and from its Hebrew Hebrew and Aramaic basis. basis. This justice justice does not really regulate the social conduct of the person but it designates the right and correct relationship with God. B) Just ( Díkaios)

This This word word is repe repeat ated ed 79 time timess and and it reaf reaffi firm rmss the the mean meanin ing g of the the good good pers person. on. Moreover, Moreover, justice justice is understood understood as fidelity fidelity to God. The saints are just; just; for example example Abel (Mt 23:35); Zacharia and Elizabeth (Lk 1:6); Simeon (Lk 2:25); Lot (2Pet 2:8); Cornelius (Acts 10:22) and St. Joseph (Mt 1:19). Díkaios can be synonymous with ágazós. ágazós. This means that the word word just is synonymous with the word good. The just one per one per excellence is Jesus Christ. Let us look look at some examples: — “Have nothing to do with with that righteous man” man” (Mt 27:19). — “This man is innocent beyond beyond doubt” (Lk 23:47). 23:47). — “You denied the Holy and Righteous One and asked that a murderer be released to you” (Acts 3:14).

It is worth affirming that the word “just” is a messianic title which is mixed with other christological titles and which the apostles refer to as the fulfillment in the life of Jesus (Acts 7:52; 22:14). There are many texts in which the word “just” modifies actions with evident reference to justice and equity in human relationships: “Masters, treat your slaves justly and fairly, realizing that you too have a Master in heaven (Col 4:1). We can formulate some conclusions from the exegetical point of view relative to the concept of justice in the New Testament: 1) Justice Justice means means fidelity fidelity to God which is expresse expressed d through through the fulfillmen fulfillmentt of his will. 2) The just just one is primordially primordially the the person who assume assumess a religious religious and moral moral attitude attitude toward toward God; it also includes being just towards other men and women. 3) Justice Justice and sin are present presented ed as antithesis antithesis:: “Do not be yoked with with those those who are different, different, with unbelievers. unbelievers. For what partnership do do righteousness and lawlessness have? have? Or what fellowship does light have with darkness?” (2 Cor 6:14). 4) Justice Justice and justif justificati ication on are closely closely linked linked concepts concepts and and realities. realities.

As a summary, we can say that from the direct philological analysis we cannot deduce special consequences which we can today call social justice. Likewise, it is not proper to develop a theory exclusively based on the exegesis of the word justice. In confusion concerning the sense of justice, Christians will look for an orientation in the divine revelation in order to listen to God who ought to be understood understood through justice. justice. The word justice justice is used in a form which at first glance causes a certain confusion. confusion. It is almost almost synonymous with sanctity, sanctity, salvation, grace, peace,


Justice

9

liberation and redemption, that is, it indicates a particular point of view whereby all men and women hope in God. In an important important sense, justice justice is properly properly attribute attributed d to God, not only as regards he being a legislator but also as having to direct history with a view to saving his people. Considered from the point of view of the human person, justice in the biblical vocabulary is a correct attitude toward God and the neighbor which makes possible possible and preserves communion. It manifests itself in accepting the law of the covenant and as a response of the believer to the divine revelation. The word justice acquires with with Paul a more profound dimension. dimension. 3. Biblical Doctrine on Social Justice

Philology is not everything everything nor is it perhaps the best method of exegesis. To read the bible does not mean making a philological analysis but it does mean understanding the whole message: “[D]ue attention must be paid both to the customary and characteristic patterns of perception, speech and narrative which prevailed at the age of the writer...and no less attention must be devoted to the content and unity of the whole of Scripture, taking into account the Tradition of the entire Church and the analogy of faith” (D.V., 12). Consequently, the question must be proposed in this manner: Is there something in the bible besides the teachings on justice, especially in the social field, that expressly refers to unicuique suum,? suum,? Can we really talk talk about a biblical biblical doctrine doctrine on the existence existence of a social social life founded on justice? The answer to this question is surely yes because besides the justice of God there is a rich doctrine concerning justice which regulates the relationships relationships of people with with one another. It deals not only with justice before God but also deals with that justice which must govern the world. In the document, Libertatis Nuntius, Nuntius, issued by the Congregation for the Doctrine of the Faith there is a good reference to the relationship between biblical justice and social justice: In the Old Testament, the prophets after Amos keep affirming with particular vigor the requirements of justice and solidarity and the need to pronounce a very severe judgment on the rich who oppress oppress the poor. They come come to the defense of the widow and the orphan. They threaten the powerful: the accumulation of evils can only lead to terrible punishments. Faithfulness to the Covenant cannot be conceived of without the practice of justice. Justice as regards regards God and justice as as regards mankind are inseparable. God is the defender and the liberator liberator of the poor. These requirements requirements are found once again again in the New Testament. Testament. They are even more radicalized as can be shown in the discourse discourse on the Beatitudes. Conversion and renewal have to occur in the depths of the heart…At heart…At the samee tim sam time, e, the re requi quire remen ments ts of jus justi tice ce and mer mercy cy,, alr alread eady y pro procla claime imed d in the Ol Old d Testamen Test ament, t, are deepened to assume a new significa significance nce in the New Testament. Testament. Those who suffer or who are persecuted are identified with Christ. Christ.14

4. Justice in Tradition

It is evident that Tradition was extensively preoccupied with different ideas related to justice in social co-existence. The criticisms of the Church Fathers constitute a true anthology of texts which condemn wealth unjustly acquired acquired or wealth simply not shared. In the wide literature literature


Justice

10

which constitutes constitutes the patristic patristic tradition, tradition, different different ideas appear which cover the virtue of justice: justice: property and its equitable distribution, abuse of power, obedience to a legitimately constituted power, condemnation conde mnation of different crimes committed against social living, the common good, etc. In other words, the Church Fathers made thematic references in their literatures as for example the just relationship among people themselves, collaboration between authority and the citizens in terms of the promotion of the common good and the exercise of justice in its three areas: commutative, distributive, and legal. In their conceptual treatment of social justice, the Fathers in the early tradition already tried to apply the doctrine of justice from the Graeco-Roman intellectual context to the Christian situat situation ion.. In the civil, civil, juridic juridical al and philosop philosophic hical al cultur culture, e, the notion notion of justic justicee occupie occupied d a prominent place. The benefits that this civil culture offered to Christian thought were considerabl considerable. e. Thus the Fathers took took from the Greek culture the concept of justice justice as the virtue which dealt dealt with “giving “giving to each one his/her due.” due.” At the same time, time, they took from Roman Roman culture the inherent rights of the citizens which Christians extended to all men and women. It is clear that the cultural notion of justice will not exactly coincide with the Christian concept concept since the latter is dominated dominated by a religious sense. sense. Thus, the attempt attempt of the Fathers to impregnate impregnate the ideal of justice justice with a new spirit spirit in the Graeco-Roma Graeco-Roman n culture. The Fathers Fathers did not substitute the dominant concept of justice by the bible, but they assumed assumed it and purified it. An example example of this would be the monographs monographs which readily appeared as commentarie commentariess to the pagan writings. In this light, many would bring up the question of the Hellenization of the concept of Christian justice. They believe that this caused the loss or, at least, the diminution diminution of the biblical sense. They will raise this question: question: is it licit to regret this this Hellenization of the concept of justice in Christian ethics and thus lose a chance to return to a strictly biblical teaching? The concept of justice, justice, elaborated elaborated by the Fathers of the Church and the great theologians theologians through a speculative work worthy of praise, establishes a new synthesis of the elements of the biblical and philosophical tradition and the Graeco-Roman law. A grand picture of a cosmos based on God wherein all things not only pertaining to the world of nature but also those correspondi corresponding ng to society take their proper proper places. This gave the whole of the existing existing order a great stability and a theological legitimization. legitimization. A Christian ethics ethics of profession profession would consider the place and the function function of each of those in the society as a mission mission given by God. From this would come corresponding rights and duties. Christianity did what it to inculturate itself in the measure that it evangelized and assumed those those human values values that that were were capable capable of being being enriched enriched by the Gospel. Gospel. This This is what really really happened with the consequent enrichment of the Christian concept of justice. Besides the biblical notion of justice justice was only valid for a theocratic society like Israel. It was not adequate for the pagan world nor for the future of society even when Christianity extended extended to Europe and became the official official religion religion of the Roman empire. This was due to the fact that the church-world distinction constitutes an essential point of the message preached by Jesus Christ.


Justice

11

In the 12th century the virtue of justice occupied a big space in the theological treatise on virtues; and in the 16th century the great treatise, De treatise, De Justitia et Jure appeared. Certainly the casuistic moral theology of the 17th century occupied itself by choice with commut commutati ative ve justi justice ce or privat privatee justic justicee betwee between n indivi individua duals ls causing causing a great great loss loss of attent attention ion regarding problems related to distributive and legal justice which were common in the new societies in the colonies. It is clear that the problems that that cropped up then both in the economic and political world were not properly addressed due to the emphasis given to just relationship between individuals. These grave and urgent social problems gave birth to the social teaching of the Church in the 19th century by which the Church began to make headway in the field of morality. Witho Without ut abandon abandoning ing the demand demandss of commut commutati ative ve justic justice, e, theolo theologic gical al ethics ethics today today occupies itself with distributive and legal justice so as to establish a just order in the political and economic life of the people. The great changes in the social world equally correspond to the political modification and the interpretat interpretation ion that were made in almost all social social institution institutions. s. For this reason reason there is an experi experienc encee of deep change in the study study of justic justice. e. Likewi Likewise, se, the need arises arises to clarif clarify y the theological concept of justice. III. The Virtue of Justice: Theological Doctrine

1. The Patristic Tradition

We have already said that Christian writers assumed the Graeco-Roman concept of justice. St. Ambrose stresses the two elements pointed out by Aristotle in the notion of virtue: to give to each one his/her his/her due and the demand for equality. equality. He added typically typically Christian Christian elements elements to enrich the concept. In his work, On the Duties of the Minister , St. Ambrose wrote that the pagans established the concept of justice which gives to each one his/her due, not appropriating from somebody else and neglecting its own use use in order to preserve preserve the common good. He enriches the pagan doctrine doctrine with this Christian consideration: Respect for justice refers first to God, second to the country, third to the parents and in the end to all. All of these are according according to the teaching of nature nature with the supposition that in the early years when man begins to make use of his reason, we love life as a gift of God, country and pare parents nts and late laterr we have effect effect on our neig neighbors hbors with whom we must associate. Here is where charity is born born which prefers others to oneself and does not look for the things which pertain to it in which the principle of justice is found. 15

Referring to social justice, he writes: Justice Just ice refers refers to soci society ety and to the community community of the humankind. humankind. The foundation foundation of


Justice

12

societ soc iety y is tw twofo ofold: ld: justice justice and ben benefi eficen cence. ce. The These se are also called called lib libera eralit lity y and benignity. Justice seems more sublime: liberality more amiable. This is because the former contains judgment while the latter the will. will .16

Another enrichment of the pagan concept of justice is found in the relationship which St. Ambrose made between charity and justice: What the pagan philosophers say to be the first task of justice is not something attractive to us. They affirm affirm that no one must damage damage anther even if he provoked. The authority of the Gospel contradicts this opinion (Lk 22:56). 17

Another correction to the Greek concept of justice is the reference to the ownership of goods. St. Ambrose affirms in plain language the social demands of property given that by nature all things are in common: The pagan philosophers judged that as a form of justice each one may not possess what is for all, that is, public public property property is for the public and not for the individua individual. l. This certainly does not conform to nature since God gave things in common to all.18

We can consid consider er St. Ambros Ambrosee as a model. model. The Christi Christian an authors authors of the first first century century always interpreted the virtue virtue of justice in human co-existence from the perspective of faith. They had recourse to justice to condemn unjust wealth and to demand an equitable distribution of wealth so that social life might be governed by equity. 2. Doctrine of St. Thomas

St. Thomas seriously undertook the the study of justice as a theological virtue. He structured his treatise on moral moral theology based on virtues. This is the scheme scheme that he proposed in his Summa Theologica: Theologica: “Human virtue virtue is a habit which which perfects perfects man to do good.” Consequently Consequently,, there are two types of virtues which which he named: intellect intellectual ual and moral. The moral (cardinal (cardinal virtues) virtues) are four: prudence, justice, fortitude fortitude and temperance (I-II, q. 58, a. 3). As regards justice, justice, he wrote: “Justice is the most important for being the most proximate to reason and because it is related to the others (I-II, q. 66, a. 4). Besides his extensive commentaries on Aristotle’s Nicomachean Aristotle’s Nicomachean Ethics, Ethics, St. Thomas in his Summa gave ample space to the study of justice. justice. It is the most extensive extensive treatise treatise of the seven treatises he devoted to the the study of the virtues. Concretely, he gave it 66 quaestiones. quaestiones. Questiones 57-79 have 111 articles referring to the specific matter of justice while in the remaining sections he studied the rest of the virtues, constituting them as separate treatises. He thus defines justice in this way: “Justice is a habit whereby a man renders to each his due by a constant and perpetual will.”19 With little modifications this can be the classic definition of justice. justice. In this same article, article, he took two definitions definitions of Aristotle Aristotle and he concluded concluded the article with this affirmation: “Justice is a habit whereby a man is said to be capable of doing just actions in accordance with his choice.”20 St. Thomas also included included the Roman thinking. thinking. He appropriated appropriated the definition definition of Ulpian (+228) which became classic among the Church Fathers: “The constant will to give to each one


Justice

13

his due.” The novelty in St. Thomas regarding the doctrine of justice is not so much much his definition but his synthesis and the articulation. There is no doubt that his principal source was Aristotle. Aristotle. He followed closely the scheme and the ideas in the first four chapters Book V of the Nicomachean Ethics and expanded the understanding of justice by adding the Roman definition as well as the other writings of St. Anselm and other texts from the Fathers which we re already used by prior scholastics. Justice for St. Thomas integrates three fundamental elements: 1) The object of justice is right. This means that justice deals with giving and restoring what what is due (q. 57, a. 1). 2) Justice refers to another. Alterity is, therefore, a constitutive constitutive element of justice: nobody nobody is just to his/her own self. 3) Justice is founded founded on equality. It demands equality between between the one who receives receives and the one who receives.

3. Justice and Right

A new aspect in the Thomi Thomisti sticc exposit exposition ion is the dispos dispositi ition on of the quaestiones. quaestiones. In concrete, St. Thomas first studied the question concerning rights (q. 57) before studying justice (q. 58). This novelty novelty supposes that St. Thomas had a deep intuition—pr intuition—prior ior to justice there already already exists the right. He already wrote in Summa Contra Gentiles: Gentiles: “If the act of justice is to give to each one his due it is because the said act supposes another precedent by virtue of which something is constituted as someone’s someone’s property. This proposition simply shows a fundamental reality: justice justice is something that comes comes second, it presupposes a right. right. If something is due to a person as his/her own, the same is not due to him/her because because of the work of justice. St. Thomas Thomas showed this in this manner: if a person works in the garden what happens is that something pertains to him and therefore there is something something due him/her; the ownership belongs to to him who works. That which is due has to be given given to the other. But this giving is an act of justice which is is performed on the supposition that something is due to the person. As a summary, justice is defined as giving to each one his/her due (unicui (unicuique que suum) suum) but we ask: why can someone someone have something something as his/her his/her own? The answer is very very clear: because because he/she has the right to it. Consequently, such right right must be respected through through justice. The right precedes justice. The ethical reality comes from the very ver y etymology of justice. It comes from the word jus word jus (right). This means it is is a derived concept not a primary one. We can deduce from what we have said so far the following conclusions: 1) Social ethics is more more a morality of rights and duties than than of justice. In this light, its teaching teaching will stress more the dignity dignity of the person and his/her his/her rights than the theme theme of justice. It will help to clarify the true sense of this virtue often invoked but badly interpreted.


Justice

14

2) One commits commits injustice injustice only in the measure measure that a right is infringed. infringed. In this regard, regard, it is not unjust to deny someone the use of a tractor belonging to a cooperative if he/she is not member of it. Neither will it be injustice if a lawyer denies defending someone someone on the basis of materials which he/she does not have the the right to. A doctor does not commit injustice injustice if he/she denies a sick person who demands from him/her treatment which he/she does not have the right to. 3) Given that to every right there is a corresponding duty, in the pastoral field and in the practice of confession the completion of duties and the corresponding demands of one’s own rights must be considered as something urgent. Due to the sensitivity to demand the rights there is more insistence on the obligation to fulfill the duties the social co-existence demands. 4) Besides the rights-duties which justice calls for, there are cases of moral demands which have to be attended a ttended to not through justice but through charity or through the demands of the common good. good. A doctor sins against against charity charity if he/she does not yield yield to the complaint complaint of a patient. patient. Consequently, Consequently, social morality cannot be reduced to the theme of justice alone. 5) Besides rights-duties rights-duties there are correlative moral values which they represent. They give rise to different doctrines which material values propose and defend with the exclusion of those which refer to the human person as a spiritual being. Without failing to pay attention to all all the classes of values, it is necessary to understand that material values can be more urgent but that spiritual are ordinarily more important. 6) Given Given that that the right rights-d s-dut uties ies arise arise from from the the spirit spiritual ual condi conditio tion n of the human person person,, it is necessary to orient the citizen towards the the horizon of spiritual life. Justice cannot be lived out in a community which moves exclusively through the claims of material values or a political party. 7) Rights and duties must be juridically regulated. regulated. Hence comes the importance importance of a norm or a just law which must moderate moderate the rights and duties of of every person. In this way the trilogy rightright justice-law is united. These three fundamental concepts are correlated and united in the mind and in the understanding of the jurists and philosophers of all times.

4. Division and Classes of Justice

Justice is a virtue of alterity. alterity. It is the ordering of the communitarian communitarian life. There are three three fundamental relationships as far as a human person in his/her social existence is concerned; 1) Horizontal . This means means relatio relationship nship of some some individua individuals ls with with others. others. The justice justice which which governs these relationships is called commutative justice. justice . 2) Vertical . This means relationships of individuals individuals with the the collectivity of the State. State. The type of justice under this dispensation is called legal justice. justice . On the other other hand, hand, the the justice justice which which governs the relationship of the State with individuals is called distributive justice .

Aristo Aristotle tle proposed proposed this division division.. This This was repeated repeated in tradit tradition ion,, both both juridi juridical cal and theological, and St. Thomas was in agreement with it. J. Pieper Pieper sugges suggests ts this this diagra diagram m which which clarif clarifies ies the classi classicc triple triple divisi division on of justic justice, e, explaining the mutual relationships between them.


Justice

15

A

Legal Justice

Distributive Justice

Commutative Justice A Individual

B Individual

The strict strict notion of justice is given in this three classes classes of justice. However, However, each one of them touches on different aspects which which we shall clarify in the succeeding section. Our aim here is to emphasize their specific content and to call attention to certain risks to which they might be subjected. A. Commutative Justice

Commutative justice looks at the good of the individual. It is founded on the singularity singularity of each person as carrier of his/her rights and duties; it supposes the radical equality of all men and women. The seventh commandment is almost exclusively occupied with with commutative justice; justice; it even constitutes it as a primordial material when the treatise of moral theology is structured on virtues. virtues. Thus the risk of reducing the extensive extensive content content of justice justice to mere just relationshi relationships ps among individuals and thereby neglecting just j ust relationships which must prevail in social life. This situation situation would be aggravated aggravated in our socialized socialized era by neglecting the common good or when when the import importance ance of societ society, y, the regula regulatin ting g functi function on of the State State and intern internati ational onal relati relations onship hipss are neglecte neglected. d. These These defici deficienci encies es become become obvious obvious in fiscal fiscal decepti deceptions ons or, concretely, in the manipulation of prices by one particular group to the detriment of the common good. However, in our time there is also the contrary risk: to be too much preoccupied with distributive and legal justice. This can cause neglect of the demands of commutative justice. justice. This risk is concretized in the case where the individual is sacrificed to the interests of the State or the collectivity without a social dynamism d ynamism that arises from interpersonal relationships.


Justice

16

B. Legal Justice

Legal justice looks for the common good. It contemplates contemplates on the the demands of society. It takes on the perspective of the social condition of the human person and it gives emphasis to the social order through the realization of just laws. Attention to legal justice demands that the individual overcomes his/her egoism and pays attention to the juridical juridical ordering of the nation. nation. Frequently, individuals, including Christians, Christians, like to be excused from the fulfillm fulfillment ent of civil laws. In this light it becomes becomes necessary necessary to press for obligation of conscience to obey just laws. However, preferential attention to legal justice has also its own risk: the abundance of laws which, instead of favoring social co-existence, put a straitjacket on the activities of particular groups. groups. There is a classic understandi understanding ng which affirms affirms that an abundance of laws reveals reveals the 21 corruption of society. Modern states legislate more laws everyday based on the aspects of natural rights. Often these are against natural law, causing tensions in the personal conscience of the citizens. What we experience today is a new and specific crisis crisis of governance which does not come from defect defect in organization organization but rather rather from the excess of it. it. It is an order that engenders engenders disorder. Another risk in legal justice in democratic de mocratic countries is manifested when laws are legislated due to political motives motives and in function of a party in in power. In these cases, what takes place is not so much the good of particular groups but the obtaining of more votes v otes that will put them in power. Justice from the law is considered not because it legitimizes the democratic majority but because it promotes the common good of the the society. We take an example of an immoral law: abortion is used as part of an electoral platform by some political parties. C. Distributive Justice

Distribut Distributive ive justice orders orders the relationships relationships between the State and the individual. individual. The exercise exercise of this justice is of exceptional exceptional interest interest in order to facilitat facilitatee justice in society. society. It must consider the fundamental equality of all the citizens so as to diminish social inequality. Distributive justice has to favor the just distribution of economic, political and cultural goods. The risk of distributive justice—if it does not take the other classes of justice—is in the supplanting of the society society by the State. The “Statification” of society society is very dangerous in in liberal states because the freedom of the strongest is is the one that wins. In totalitarian countries this also also happens with with the assumption assumption of power by only one party. In both cases there is the danger that ideologies or the system will dominate over the demands of justice. Finally, the danger in the exercise of distributive justice in the hands of the State is in the non-possibility of having intermediate entities between the individual and the state institutions. This situation brings loss of the creative capacity of society and it puts to risk the equilibrium between the particular initiatives and those exclusively proper to the competence of the State.


Justice

17

5. Social Justice

Since the 19th century social justice is mentioned as something added to the classical triple division of justice. justice. It was the Italian Italian sociologist Luigi Taparelli who introduced this expression and he was followed followed by another Italian philosopher, philosopher, Antonio Rosmini. Both authors would refer refer th to the urgency to implant justice in the new society of the 19 century when new and flagrant inequaliti inequalities es would arise in social social co-existence. co-existence. Possibly, Possibly, the same Italian language favored favored that one may talk about social justice and thus, by the imperative of the language, a neologism is created without having to deal with w ith a new scholarly classification. This new syllogism was not easily accepted. The fact is that in the clamor of conflicting ideologies the expression was heavily criticized even by Catholics to the point that is was faulted by the Modernists. The discussions went on and on even though the expression was used by Pius X. In the encyclical, Iucunda encyclical, Iucunda Sane (March 12, 1904), Pius X praised the attitude of Pope Gregory the Great Great in the face of the endeavo endeavors rs of the Emperor Emperor.. Through Through this this act, he earned earned the title, title, Champion of Social Justice. From From that that time time on, on, the the cont contro rove vers rsie iess on the the use use of the the term term died died down, down, howe however ver,, discussions concerning the exact meaning meaning of social justice began. Pius XI made the first first approach to clarify the meaning of social justice in his encyclical, Quadragessimo Anno: Anno: To each, therefore, must be given his own share of goods, and the distribution of created goods, which, as every discerning person knows, is laboring today under the gravest evils due to the huge dispa disparity rity between between the few exce exceeding edingly ly rich and the unnumbered unnumbered propertyless, must be effectively called back to and brought into conformity with the norms of the common good, that is, social justice (Q.A., 58).

Pope Pius XI thus reduced social justice to a just distribution of goods. In the 1930s the expression social justice was thoroughly accepted, creating a decrease in attention to the classic classic triple division of justice. justice. Even the encyclicals which deal with this this theme are given the name name social encyclicals. Controversies concerning the specific material of this new type type of justice justice oppose opposed d to the classi classical cal types arose. arose. The classica classicall divisi division on traces traces its root in Aristotle, gaining its own epistemological status among Catholic moral authors. The question posed is this: are we dealing with a new type of justice or is it proper to reduce social justice to any of the three three known divisions? Does social justice gather some of the the demands of the three commonly admitted admitted types of justice? The responses of the different authors were disparate. Many authors will equate social justice with legal justice (A. Vermeesch, E. Génicot, L. Lanchance, and P. Tischleder). Others limit social justice to the demands of natural right right and not legally codified in the common good (B. Häring and A. F. Utz). Others, in turn, link the concept of social justice to legal and distributive distributive justice (H. Pesch, O. Schilling, and E. Welty). Some will interpret social justice as the harmony between legal, distributive and commutative justice rightly understood (B. Mathis and F. Cavallera).


Justice

18

The solution will never be easy when the discussion is surrounded by the idea of the classical triple division. division. In this light, others will decide on admitting admitting that social justice deals with 22 a new type of justice. However, these authors still have not come at a consensus on the question of the real object of social justice. In my opinio opinion n social social justice justice is an origin original al expres expressio sion n which which respond respondss to new social social situat situation ions, s, both both econom economic ic and politica political. l. In social social justic justicee is expressed expressed the need that social social relationsh relationships ips brought about about by the new economic economic order are regulated regulated by justice. justice. For example example th since the 19 century, new social institutions which mediate between the individual and the State gained importance: the the economic enterprises, political parties, parties, unions, etc. Neither man/woman as an individual nor as a member of society has to be directly confronted by the State but by more immediate institutions which seriously affect his/her life and which are not always regulated in an equitable manner. This means that social justice is the justice which governs the institutions born from a new social and political order. These new institutions institutions are principally economic and political political in nature; however, they touch other fields of human existence. For this reason, the social life life which gained greater greater importance importance in different different fields must be ruled by justice. This justice justice is given the name social justice because of its immediate influence social life. Besides, given the dynamism acquired by society, social justice regulates the relationships among different different social social groups. For example, example, the common good does not necessarily necessarily coincide coincide with the good of the State but with the good of the citizens in a concrete situation and the good of those groups created by it. it. In the context of social social justice, therefore, the principles of subsidiarity subsidiarity and solidarity solidarity have gained importance. importance. Equally, Equally, social justice justice will regulate regulate the creation creation and the competence of the intermediate groupings or maybe between the competence of the State and those which which are born as a response response to the immediate immediate needs. To these new needs the individuals individuals intend to give a response in a collective manner. Uncert Uncertaint ainty y comes comes about about when one deals deals with with restri restricti cting ng social social justic justicee only only to the economic field or to the narrow field of the the unjust distribution of wealth. Certainly, this is a very important assumption assumption of social justice but it it is not a unique nor exclusive one. Therefore, when the encyclicals appeal to social justice they mention the common good in which the goods of the family, education, and, in general, the values of the spirit enter. These matters are also regulated regulated by social justice. Millán-Pulles says: Social justice goes beyond the limited area of material or economic goods and it extends to a point where it demands an effective possibility for the participation of the citizens in the highest goods of life…The understanding of social justice in its social plenitude and according to its highest sense carries with it an organization of co-existence which makes possible the proportionate participation of all the citizens in the highest goods of life. The common good has a part, or more correctly, correctly, a condition of material nature. nature. But its most important aspect and dimension is that it will constitute the superior values of the spirit. spir it. More Moreover, over, to restrict restrict social justice justice to the realm of the righ rights ts of the citizens citizens as regards material goods would constitute an attack on the dignity of the human person. 23

To those who prefer to explain social justice in the light of the classical triple division it will be easy to arrive at a consensus, if it is admitted ,that it is proper to social justice, at least, to judge the social aspects of the three classes of justice in relation to material, familial, educational,


Justice

19

political and religious goods. In other words, social justice is that which regulates the different social social institutions institutions to which the life of the individual in society revolves. revolves. This is sufficient sufficient with regard to this quaestio de nomine. nomine. 6. Social Order and Juridical Order

We discussed earlier the relationship between justice and right: the right precedes justice. Theref Therefore ore,, to protect protect and to defend defend the right right justic justicee is required required.. This This in turn demands demands the existence of laws which regulate rights, duties and relationships among the citizens. This theme refers to the so called state of law in which a just legislation facilitates the equitable co-existence among citizens. citizens. However, as we said earlier, earlier, it is important to avoid these these two extremes: (1) a city without a law, characterized by lack of norms, which allows the law of the jungle to reign supreme (2) a society governed by abundant legislation that converts its social life into a concentration concentration camp. In the first case, adequate legislation legislation makes laws become the pulse pulse of social life while in the second case excessive legislation stifles all existence in society. Besides the existence of a good number of laws that facilitate social co-existence it is likewise required that these these laws be just. The ethical ideal exists in in social life when it is governed by few but just laws; few but good laws are the juridical ideal of society. society. Justice of laws is seen through the following criteria: 1) Laws are considered just when they comply comply with the conditions which define define them. Laws are honest when they strive for the good of the individual and of society; they are useful if they facilitate facilitate the attainmen attainmentt of the true good. Laws are possible possible if they can be fulfilled fulfilled without without grave discomfort and when they come from a legitimately constituted authority. 2) Laws are ethically just when they defend, protect and favor human rights, that is, when they respect human dignity from whence these fundamental rights come. 3) Laws are morally just when they legislate a social co-existence oriented to the common good.

This theme always poses the problem of conflict: the relationship between morality and right. It is urgent to give this area separate treatment. treatment. 7. Morality and Legality

The importance and meaning of laws in society frequently lead to confusion between two distinct areas: the moral moral norm and civil law. This confusion leads to the belief that that what the law demands demands (legality) (legality) is what constitute constitutess the moral good (morality). (morality). This approach approach tends to put morality and legality on equal footing. It deals consequently with fixing the relationship between law and morality or between what is licit in the juridical juridical field and what is just in moral life. Definitely, there exists the need to distinguish what is permissible in civil law from what is ethically good or bad given that the civil law does not always always coincide with what what is judged as moral. moral. This doctrine doctrine acquires acquires a special


Justice

20

weight when civil law legislates against the principles of natural law or ,worse, when it legislates against the law of God. The The idea idea of legal legalit ity y as an ethi ethica call norm norm has has devel develope oped d very very slow slowly ly beca becaus usee of the the secularizing of culture culture which has been slowly disregarding God. The following is the history of ethical legalism. a) Right a) Right Naturalism. Naturalism. Grocio proposed a thesis thesis that talks about natural natural law without considering considering the existence existence of of God. He received received this this inherita inheritance nce from the the old right right naturali naturalists. sts. The right right naturalist conception is the first secularization of law and of natural law since it alienated moral consideration from God. God. In short, natural law was made made independent of God. b) Juridical b) Juridical positivism. positivism. This signified an advancement in the process of of secularization. According to the defenders of this doctrine, there is no natural natural law. In 1893, Otto von Gierke wrote that nature was a thing of the past and that what remained of the doctrine was only the pride of the old power. In our time, Hans Kelsen writes that it does not make make any sense to have recourse to natural law. For this reason he talks about about right naturalist ingenuity . It is the State who makes the laws and determines determines the norms. Therefore, morality morality comes from the law. Consequently, morality is correlated to the legality which marks the State. Juridical positivism reached its highest acceptance among totalitarian nations in the first half of this century. century. This phenomenon motivated motivated Pius XII to act urgently. urgently. In his discourse discourse to the Rota Romana he criticized juridical positivism as the cause of the loss of the moral sense: The immediate causes of the crisis (of the Christian moral conscience) have been found fou nd pri princi ncipal pally ly in jur juridi idica call pos positi itivi vism sm and in the abs absolu olutis tism m of the St State ate… … Separating the law, its base, constituted by the divine and positive law and therefore immutable, remains founded only on the law of the State as the supreme norm…In turn the absolute State will necessarily attempt to subject all things under its will… Juridical positivism and absolutism of the State have altered and disfigured the noble features of justice. justice. It is necessary that that the juridical order establishes establishes itself again as closely linked to the moral order. order. However, the social order order is essentially founded on 24 God, on his will, his sanctity and his being.

c) Juridical c) Juridical Sociologism. Sociologism . This doctrine makes makes morality dependent on on the social conditions conditions of the people. According to Arnold Gehlen, what ordains ethical values is historical sociology. A law depends on the culture culture received by the people. The different cultures inherit inherit some moral values values and elevate them to a category category of ethical norm of conduct. In juridical juridical sociologism sociologism a positive law must must respect those inherited norms norms and they must acquire their moral moral character.

These three currents lead to an ethical legalism: what is moral is what the law establishes. This means that morality and legality coincide. This interpret interpretation ation suffers suffers many basic errors that that must be examined. They are errors of the metaphysical order and gnoseology with direct impact on the moral order. The metaphysical error consists in affirming that human nature as such is not possible. The gnoseological error is rooted in the denial of objective knowledge. The underlying reason for these two errors is the exaggerated exaggerated historici historicism sm which, in denying a stable stable human nature, cannot accept the existence existence of natural natural law. The immediate immediate consequence consequence is relativism relativism both distinct distinct and


Justice

21

diverse. diverse. This affects affects ethics since since these doctrines doctrines cannot guarantee guarantee objective objective good and evil. Metaph Metaphysi ysical cal relati relativis vism m connote connotess a gnoseo gnoseolog logica icall relati relativis vism m and both both lead lead to an ethica ethicall relativism. The teachings of the church have been opposed to these doctrines and to their resultant negative negative consequences. consequences. In so far as these theories are erroneous, erroneous, Pius XII affirmed affirmed “Human “Human 25 nature remains substantially the same.” Vatican Vatican II contains similar similar doctrine. doctrine. In expounding expounding the sense and task of conscience conscience Gaudium et Spes affirms that “in the depths of his conscience man detects a law which he does not impose impose upon himself, himself, but which holds him to obedience” obedience” (no. 16). That law was written written by God in each person’s heart. The greatness of the human person consists in being faithful to to that law which conscience applies to different situations in his/her life. In the face of an understanding of positive law as moral norm, John Paul II affirms the existence of a moral principle which is rooted to the person’s very nature and which cannot be reduced to positive laws: Moral law is not only constituted by general orientations…There are moral norms which have a precise, immutable and unconditional content…for example, the norm which prohibits contraception contraception or that which prohibits the direct taking of the life of an innocent person. One can deny the existence existence of moral norms which have such a value value if he denies that there exists the truth of the person, the immutable nature of man, founded in the last analysis on the creative wisdom which is the measure of all reality. 26

In that address, the pope calls historicistic relativism that ethics which relativizes the moral norm. In that relativism are counted those who attach attach morality to ever-changing civil laws. Because of these changes positive law will always arrive at legalizing moral values. Summing up the doctrine regarding the relationship between law and morality, we propose these principles: 1) For the legal to become moral the law must respect natural law. This law, taken from the Graeco Graeco-Rom -Roman an think thinking ing and assume assumed d by Cathol Catholic ic moral moral theolo theology gy,, is the univer universal sal and permanent norm of moral rectitude: rectitude: The first postulate…is the existence of natural law, common to all people, from which norms of being, of work and of duty are derived…For those who will reject this truth, relationship relationshipss amon among g their people will alway alwayss rema remain in an enig enigma, ma, both practical and theoretical. If its rejection is converted into a common doctrine, the very course of human history will be an eternal wandering in the stormy sea without any haven. On the contrary, contrary, in the light of this principle principle all can easily discern, discern, perhaps in general lines, the just and the unjust, the law of injury; to indicate the norms with which to resolve differences; to understand the obligatory character of internat inte rnational ional law. In other words, words, natural law is the comm common on solid base of every rightt and duty righ duty,, the unive universal rsal language language necessary necessary for all under understand standing. ing. It is that supreme tribunal of appeal which humanity has always desired to put an end to possible conflicts. conflicts.27

2) Some more important and fundamental positive laws must help facilitate the completion of the natural law. These must be applications applications of natural law as as for example those approved approved by the


Justice

22

Federal Tribunal of of Germany. Natural right has has the mission of maintaining maintaining a hope open open to a just right. When civil laws are separated from natural law moral permissiveness begins. More seriously the so called civil ethics as opposed to natural morality also begins. 3) Positive laws must must fulfill those areas that are are not explicitly contained contained in the natural law. law. They must favor justice and respect of human rights. Under this criterion are some permissive laws which endeavor to convert into norms some defects in social life. life. To elevate into a category of of norm that which is lived on the street is a dangerous path confusing confusing morality with legality. legality. Such legal attitude abandons abandons the sense of the law as a teacher of the person and seems not to fail to recognize that citizens in general are inclined to some minimal ethical demands. This temptation to which many legislators may fall is denounced by the Congregation for the Doctrine of the Faith: The role of law is not to record what is done, but to help in promoting improvement. It is at all times the task of the State to preserve each person's rights and to protect the weakest. In order to do so the State will have to right many wrongs. The law is not obliged to sanction everything, but it cannot act contrary to a law which is deeper and more majestic than any human law: the natural law engraved in men's hearts by the Creator as a norm which reason clarifies and strives to formulate properly, and which one must always struggle struggle to understand understand better, but whic which h it is alway alwayss wron wrong g to contradict. Human law can abstain from punishment, but it cannot declare to be right what would be opposed to the natural law, for this opposition suffices to give the assurance that a law is not a law at all. 28

4) The field remains open for a social normativity which takes into account the political, social, cultural, etc. plurality of each country country and each period. St. Thomas affirmed that the governing governing body does not always always have the best legislation: As stated above (I-II, q. 96, a. 2) human law is given to all people among whom some are virtuous and others not. Hence human law was unable to forbid all that that is contrary to virtue; and it suffices for it to prohibit what is inimical to society while it treats tre ats other matters matters as tho though ugh they we were re law lawful ful,, not by app approv roving ing but by not punishing them. them.29

4) Laws against natural law are unjust and therefore to them can be applied the principle: Lex unjusta nulla lex . This doctrine doctrine is common in Catholic theology theology and in the Magisterium. We cite a text from Pacem from Pacem et Terris to prove this: Since the right to command is required by the moral order and has its source in God, it follows that, if civil authorities pass laws or command anything opposed to the moral order and consequently contrary to the will of God, neither the laws made nor the authorizatio authorizations ns gran granted ted can be bindi binding ng on the consciences consciences of the citizens, citizens, sinc sincee God has more right right to be obey obeyed ed than men. Othe Otherwis rwise, e, authority authority breaks breaks down completely and results results in shameful abuse. As St. Thomas Aquinas Aquinas teaches: Human law has the true nature of law only in so far as it corresponds to right reason, and in this respect it is evident that it is derived from the eternal law. In so far as it falls short of right reason, a law is said to be a wicked law; and so, lacking the true nature of law, it is rather a kind of violence (no. 51).

In some fields of public opinion the conviction that the moral is legal is deeply ingrained. In this regard we find some slogans commonly derived from this belief:


Justice

23

1) Legislators cannot impose charges on persons who do not practice certain moral ideals; 2) The legislator must respect the liberty of the subjects; 3) The legislator has to take into account the opinion of the majority; 4) The law must regulate that which is on the street on the level of secrecy.

The confusion between morality and legality notably lessens public morality given that society, not having a leading educator of law, is subjected to some demoralizing pressure when this attitude attitude does not respond to what is morally correct. This pressure heightens heightens because of the circumstances and the influence of the latest fashion or craze. The phenomenon of sociological conformism consists in the influence exercised on the behavior of a citizen by the accepted models of conduct and approved in the social milieu mili eu in which it exists. It is the result of the pressure pressure of the surroundin surroundings gs on the conduct of those who do what everybody else does, basing their style of life on the majority behavior which they follow because they accept it blindly or out of fear of criticism by those who they follow. 3031

Obviously, the Christian moral attitude deals with going against the current and with attempt at making Christian moral moral norms penetrate social life. The mission to teach proper to the hierarchy has been urged by many church documents. At the same time, time, the action of Christians in the world is concretized in the the being present in civil society. Vatican II urges this obligation: obligation: it is generally the function of the well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city (G.S., 43).

1

J. Rawls, A Rawls, A Theory of Justice (Massachusetts: (Massachusetts: Harvard University Press, 1971), 3. Ibid., 3-3. 3 The Republic, Republic, IV, 18, 444d. The Platonic concept of justice justice is understood in the social context of his time: the primacy primacy of society over the individual person. In this regard the term unjust does not refer to the person but rather to the maladjustment which which is produced when the good good of the society society is not followed. followed. Individua Individuals ls are subordinate subordinate to it. Thus, Thus, Plato defines defines justice as making making each one his/her own, that means, that which corresponds corresponds to doing. Ibid., I, 6, 331a. 331a. 4 , Ibid., I, 331d-e. 5 “Non est autem jus, ubi nulla justitia est; procul dubio colligitur, ubi justitia non est, non esse republicam.” St. Augustine, De Civit Dei Dei,, XIX, 21, 1, in Patrologia in Patrologia Latina Latina 41, 649. 6 Aristotle, Nichomachean Aristotle, Nichomachean Ethics Ethics,, V, 1, Patrologia 1, Patrologia Latina Latina,, 1129-1130. 7 Plato, Giogias, Giogias, 469c. 8 Ibid., 469a-b. 9 Cicero, De Officiis, Officiis, VII, 20. 10 “Iustitia est habitus animi communi communi utilitate servata, suam cuique tribuens dignitatem.” dignitatem.” Cf. Cicero, De Cicero, De Invent Rethor , I, 53. 11 Id., De Id., De Republica, Republica, III, 22-23. 12 W. Kerber, “La justicia como orden social justo,” in AA. VV., Fe cristiana y sociedad moderna (Madrid: Ed. SM, 1992), 61. 13 The magisterium denounces (cf. Libertatis (cf. Libertatis Nuntius Nuntius,, 5) 14 Congregation for the Doctrine of the Faith, Libertis Faith, Libertis Nuntius Nuntius,, 6-10. 15 St. Ambrose, De Ambrose, De officiis ministrorum, ministrorum, I, XXVIII, 127, Patrologia 127, Patrologia Latina Latina,, 16, 60-61. 16 Ibid, I, XXVIII, 130, Patrologia 130, Patrologia Latina Latina 16, 61. 17 Ibid., I, XXVIII, 131, Patrologia 131, Patrologia Latina Latina 16, 62. 18 “ Natura enim omnia omnia omnibus in commune commune profudit .” .” Ibid., I, I, XXVIII, XXVIII, 132, Patrologia 132, Patrologia Latina Latina,, 16, 62. 19 Summa Theologica, Theologica, II-II, q. 58, a.1). 20 Ibid. 21 “Corruptissima re re publica, plurimae leges.” leges.” Tacitus, Anales Tacitus, Anales,, 3 ,27. 22 Some of them are J. Messner, J. Pieper, A. Retzbach, C. Hentzen, G. Grundlach, O. von Nell-Bruening, B. Molitor, C. van Gestel, J. L. Gutiérrez, J. Marias, etc. 23 A. Millán-Puelles, Millán-Puelles, Personal Personal y justicia justicia social (Madrid: social (Madrid: Ed. Rialp, 1973), 80-81. 24 Pius XII, Right-Conscie XII, Right-Conscienc: nc: Discourse to to the Rota Romana Romana (November 13, 1949). 25 Discourse on Natural Natural Law, Law, October 13, 1955. 26 John Paul II, Address II, Address to the International Congress Congress in Moral Theology (April 10, 1986). 27 Pius XII, Maximas XII, Maximas conciliadoras conciliadoras (October 13, 1955), 6. 28 Congregation for the Doctrine of the Faith, Declaration Faith, Declaration on Procured Procured Abortion (November 18, 1974), no. 21. 29 Summa Theologica, Theologica, II-II, q. 77, a. 1 ad 1. Human law cannot prohibit everything everything that natural law prohibits. prohibits. Cf. ibid., I-II, I-II, q. 96, a. 3 ad 3. 30 A. de Fuenmayor, Legalidad, Fuenmayor, Legalidad, moralidad moralidad y cambio social social (Pamplona, (Pamplona, Eunsa, 1981), 31. 2

31

JUSTICE: HUMAN AND CHRISTIAN VIRTUE

Recommend Documents