Declaration of Independence: Justice

Introduction

Roy Clouser is my friend and partner (I’m the junior partner, just to be clear) in this effort to create a blog that addresses the issues facing philosophy. In the past couple of posts, I have began thinking on the subject of justice. Recently, I found a transcript of Roy’s lecture at Harvard Law School in October of 2007. He presents many insights into what our western culture considers to be justice and how to address this culture philosophically. A very short excerpt follows in which he speaks of the Declaration of Independence. Also, just to be clear, I believe it is rare for someone to be invited to give a lecture on justice at Harvard Law School!

I must hasten to say that this excerpt begins right after the introduction in which Dr. Clouser lays out his format for the content of the lecture.

A THIRD VIEW OF RIGHTS AND LAW: A critique of assumptions behind the Declaration and the Constitution The 13th Annual Kuyper Lecture for 2007, Harvard Law School 18th October 2007

natural law theory illustrated
This illustration does not necessarily reflect Dr Clouser’s description of natural law theory, but it does show something of how it is developed.

The Declaration’s Source for Rights

Let’s start with the Declaration’s version of natural law theory. The truth behind the words of that document may, I think, be summarized as follows. The truth is that all humans have a sense of justice. Every people, tribe, tongue, civilization, and culture that has ever existed recognized that it is a norm for life that people should “give to all their due” and be treated likewise by others. So I think it’s correct. Humans are “endowed by their Creator” with an awareness of this norm. And neither their awareness of it nor the norm itself are human inventions or anything they can make go away. Both seem instead to be “natural” and to generate obligations on people’s thoughts and actions whether they wish it or not. That is the element of truth I think the Declaration came close to getting right.

Is There A Universal Ought the Declaration Recognizes?

      But the Declaration doesn’t quite put the point the way I just did. It doesn’t say there is a norm for justice built into created reality, which all people have the ability to recognize. Nor does it identify that norm as the source of the obligation they feel to obey the statutes government enacts. The Declaration does not appeal to a universal norm that obliges all humans simply because they’re human. Rather, it skips the norm for justice and speaks only of rights.

This is a serious omission because such rights as it envisions could only result from the norm of justice. So as I see it, the Declaration gets things backwards. It assumes that people have rights and that those rights are the basis for justice. In fact unless people first recognized the norm of justice the whole notion of rights would make no sense. For a right can be nothing other than: a benefit or immunity that cannot be denied someone without injustice.

  Do Women and African Americans Have Rights?

   By getting the relation between the norm and rights backwards, the Declaration bases the authority for human law-codes on the subjective condition of individuals rather than on a universal norm. It was this significant distortion that led to arguments over exactly who is and isn’t born with rights. For example, in early US history political leaders actually debated whether women or African-Americans had rights. But such a debate would make no sense if rights were the result of a universal norm; in that case all people would have rights because the norm of justice holds for all people. But the Declaration reversed this and tried to make the rights of individuals the basis for knowing what is just. Then – sadly enough – it did make sense to argue over who was and was not born with those rights.

Does the Declaration Think Social Organizations Have Duties?

     The individualism of the Declaration is also deficient in yet another way. By making rights the possessions only of individuals, it fails to see that social organizations have rights (and obligations) as well. It is not only individuals who have rights and obligations vis a vis government. But so do marriages, families, churches, schools, businesses, and so on. For are not they, too, recipients of free speech and press? Are they not also to enjoy freedom from search and seizure? Should not each be guaranteed the freedom to conduct its own internal affairs rather than be dictated to by government? And do they not also have an obligation to obey the laws government enacts?

By speaking only of individuals and government, the Declaration has bequeathed to America a habit of thinking in a truncated way that misses an important point. That point stems from the universality of the norm of justice. That is, justice requires that there be rights and obligations not just between individuals and government but between individuals, between individuals and all types of organizations, and among the various organizations as well.

I hope this gives you some grist for your mill. We will continue this in my next post.

Ethics: Justice

Ethics

When someone in the Judeo-Christian tradition writes on ethics, they often begin by defining what is moral or immoral. To put it differently, the ethicist begins by outlining what the central focus of integrity ought to be. Now the Judeo-Christian ethicist is one who desires to be consistent with the canonical Scriptures. 

Logo for Center for Public Justice concerning ethics
Logo for Center for Public Justice

It is especially significant to understand that the prophets, as the spokespeople for the Lord, often addressed ethics.   A statement from the prophet Micah comes to mind,

 He has told you, O man, what is good;
    and what does the Lord require of you
but to do justice, and to love kindness,[a]
    and to walk humbly with your God?  (6:8 ESV)

The Central Question

As I noted in the last entry here, Moore and Bruder contend the central inquiry of all philosophy focuses on this question, “What does it mean to do good?” Even the definition of a word like good is difficult to pin down. The thesaurus says that good can be replaced by decent. A Google search for the definition of good gets us this on this site

          that which is morally right; righteousness.

Synonyms are:

     virtue, righteousness, virtuousness, goodness, morality,  ethicalness, uprightness,  upstandingness, integrity, principle,  dignity, rectitude, rightness; honesty, truth, truthfulness, honor, incorruptibility, probity, propriety, worthiness, worth, merit;  irreproachableness,    blamelessness, purity, pureness, lack of corruption, justice, justness, fairness

The Prophet Micah

Since ethics is the study (or perhaps better, the pursuit) of what is good when speaking of the actions of a human being, we do well to ponder what the prophet Micah has laid out for us.  Do Justice. Love Kindness. Walk Humbly With Your God. OK, so that sums it up.

Greek and Jewish Ideas

The issues immediately begin to pop up, however, because already in ancient Greece, there was no common understanding of what justice means. As Plato considered what would make an ideal state, he rejected the usual answers which said that justice is giving another what they have coming to them. If we look again at the series of synonyms above, we see that they imply that in our relations with others, we are giving others their due.

When I read some Jewish writers as they describe what justice is, they are careful to differentiate it from charity. Giving people their due sounds like it is an action of grace on our part. Realizing that justice is a duty recognized and so pursued is a different idea. Deuteronomy 16 has this, “Justice, and only justice, you shall follow, that you may live and inherit the land that the Lord your God is giving you.”  

Til next time

When we pick this up again, we will need to dig a little more into the Scriptural concept of justice so that we may gain understanding of what it is God has shown us in the good.