Dissolving the Law/ Justice
Binary: The War of the gods and the path to Oneness*
*Written for the Theories of Justice course with Professor Walsh
Bismillahir Rahman ar Rahim.
I
In a lecture delivered near the
end of his life, the great German philosopher and sociologist Max Weber
characterized the "fate of our times" as the era "war
of the gods". In a lecture, titled "Science as a Vocation"
which has come to be considered as one of the profoundest short pieces of the
philosophy of science produced in the whole century, Weber spoke about the
history of Western civilization as having three major eras: first, the
ancient era or the time of "the Hellenic man" who would "at
times
sacrifice[.]
to
Aphrodite
and
at
other
times
to
Apollo,
and,
above
all,
as
everybody
sacrificed
to
the
gods
of
his
city"; second, the era of Christian
monotheism, whose "grandiose
rationalism"
and "ethical
and
methodical
conduct
of
life"
dethroned
this
polytheism
in
favor
of
the
'one
thing
that
is
needful'"; and finally the modern era, wherein, because of
"the realities of outer and inner life, Christianity has deemed it
necessary to make... compromises"; and because of these compromises
"[w]e
live
as
the
ancients did
when
their
world
was
not
yet
disenchanted
of
its
gods
and
demons". It is a time in which
"[m]any
old
gods
ascend
from
their
graves", adopting the form of "impersonal forces"
and "gain[ing] power over our lives and again resum[ing] their
eternal struggle with one another."
As I ponder these days over
questions of law and justice, I cannot help but view this debate through
Weber's profound metaphor: as the battle between the god of justice and the god
of law. This battle, like the nasty battles of the Olympian gods, and indeed
the battles of the gods of all polytheistic cultures, is likely to go on
interminably. When would it end and who will win?
Historically, the battle of the
gods have ended only with the emergence of a great prophet who would smash
the idols of his time and make Godhead one - just as Abraham, prophet of the
Jews, Christians and Muslims did, once did with such spectacular effect. It is
from the unification of Godhead, the grandiose rationalism of monotheism
or tauheed, that there flows a reordering of the whole
intellectual and material landscape of a civilization which ends of the war of
the gods.
With that grand picture of our
historical situation at the back of our minds, let us look at the matter at
hand.
II
The readings this week require us
to look at the following questions:
1. i). Is it a good to
buy "substitute military service" or "surrogate gestation
service" from the market? Or would this be an immoral act?
ii). Is it just to
let others in society buy and sell other these service? Or does justice demand
that we put these services out of the market-place?
2. If one were to ponder on the
nature of these questions, they are both normative questions, i.e questions of
ethical philosophy. They concern what "ought" to be
done, rather than what "is" done. Most people have
knee-jerk responses to offer to normative questions; but the truth is that the
more we think about these, and the more sensitively we engage in this inquiry,
the more complicated and nuanced the situation before us tends to become. Old
certainties dissolving in the face of doubt.
3. Corollary to each of these
normative questions is a positive question, i.e. a question of the science of
jurisprudence. 1. Does the law (whichever legal tradition you
seem to be situated in) permit you to buy substitute military
service or surrogate gestation service from the market? Or does it prohibit
you? 2. If others in the market are engaging in this commerce, what is
your duty: to stop them by personal intervention, to report them to the police?
Or do you incur no legal duty in this regard?
4. In the pieces assigned for
this week, the authors address normative and positive questions side by side -
an approach which I approve of. So, when the Judge Sorkow of the Superior Court
of New Jersey is trying to prove that there is nothing unethical about the provision
of gestation service (surrogate motherhood), he alludes to the law as it is. He
says that since a contract for the provision of gestation service is analogous
to all other contracts lawfully entered into, there can be nothing unethical in
it. Underlying this analysis is the unstated assumption that the law of
contracts, as it exists, is based on strong moral principles. All we need to do
is to extract those principles and apply them consistently to unprecedented
facts before us. Conversely, in another piece, the author digs deep into
historical records about how conscription actually was, in order to help us
make our judgment about what conscription should be like.
5. While the authors do seem to
be relating the normative and positive aspects to each other, their reasoning
is quite haphazard. Nowhere do they make clear the epistemological basis of
this approach, which mixes normative and positive analysis.
6. To understand this approach
better, we need to ask ourselves the fundamental question which has never
ceased to trouble thinking people since at least the time of Socrates: Does an act become moral because
it is legal? Or, does an act become legal because it is moral? In other words,
the question is: Do we derive morality from the law, or do we derive our law
from our morality? Or do the two have really nothing to do with each other and
need to be dealt with totally independently?
7. The tendency of many modern
thinkers is to treat both questions as totally separate, of focusing on only
one of the two and reducing the other to it. Many a thinker in the past few
centuries has tried to work out an a priori theory of justice
and then derive the whole of the law from it. Such thinkers do not view the
intricate structure of the law as a repository of coded ethical messages which
only need to be dug out through the exercise of disciplined and sympathetic
reasoning; more likely, they will sit in judgment upon the law as it exists and
declare it as immoral using their simple and easy a priori principles.
Since, in just about any legal system of the world which actually works, the
"life of the law is experience, not logic", these ethical
philosophers end up proposing the expunging of large parts of the law. This
approach ends up maiming, if not entirely killing, the law. Conversely, there
is also no shortage of those who master the details of the law - especially
religious law - viewing it as a perfect substitute for ethical reasoning, and
try to answer every ethical problem through the literal application of fixed
legal rules; this approach ends up killing morality, leaving the law a lifeless
shell, a petrified body devoid of its soul.
8. This isolationist tendency of
the mind is reinforced by the way the modern academy is structured: that which
is legal is to be determined by jurists sitting in the law school and reading
one set of texts, while that which is moral is to be determined by the
philosophers/theologians sitting in some other school, reading another set of
texts. It is as a result of this approach that we often reach a situation where
our approaches to law and to morality becomes completely separated. When
the moral perspective of jurists and philosophers/theologians becomes
completely separate, sooner or later law and morality get divorced.
9. Historical experience as well
as common sense suggest that such a situation - where law and morality stand
divorced - is disastrous for both law and morality. A divorce between law and
morality erodes people's obedience to the law because, contrary to Austin's
claim, most people do not follow the law simply because of any threat of
sanction. Most people, especially in well-functioning legal systems, follow the
law because want to do the right thing and the law is for them a quick and ready reference for finding out what
the right thing is. The more the moral intuitiveness and appeal of the law, the
more it will be followed; the greater the divorce between law and morality, the
less people will follow the law. A divorce between law and morality also erodes
people's faith in morality because, devoid of legal props, a truly moral life
begins to seem impossibly difficult. Human being are deeply moral beings; but
they are also weak of resolve. Without the lay obliging them to do the moral
thing, they often fail to do it; without the law holding their hand, they often
commit an immoral act which, in their more composed moments, they regret. In
short, when law and morality are divorced, society's legal or ethical system
can function effectively in such a situation - at least not for very long.
10. In short, my contention is
that we must resist the temptation to favor the normative (ethics) and the
positive(law) at the cost of each other, we should try to weld the two the two
into a in mutually reinforcing relationship. That is, we should relate them to
each other such that the two become one. So, responding to the question posed
in paragraph 6, we (jurists as well as philosophers) should try and
understand law (whichever legal system one adheres to) and justice in such a
way that each yields to us clues about the other. Lawyers reading philosophical
texts and philosophers reading legal texts - as we are doing in this class - is
certainly a part of this enterprise.
III
11. In the backdrop of one
billion people celebrating Eid-ul-Azha, the annual Islamic
festival commemorating the memory of Abraham, I am tempted to add one more
point. In some ways, the approach to law and justice which dissolves the
false binary between the two was most closely actualized by traditions of
scriptural law, developed by the followers of Abraham, peace be upon him. As
Weber put, the unification of the value spheres in the world is the
intellectual fruit of monotheism. When the god of law and the god of justice is
the same God, both law and justice come to be derived from the same source, His
Word, revealed in the form of sacred texts. The scriptures and their faithful
interpreters dissolve binaries leading to atrue intellectual oneness. This is why, one
way to deal with this struggle would still be a return to scriptures. Again,
the example of Abraham is illustrative. The Holy Bible, in the Book of Genesis
of the Old Testament, tells us that God commanded Abraham to offer one of his
two sons as a sacrifice - an act that was legal, but seemingly unethical. Since
Abraham mustered up the strength to follow God's commandment, i.e. to comply
with the law, even a seemingly immoral one. At
the last moment, God replaced his son with a ram. In a sense then, God
rewarded Abraham by making his act of sacrifice an ethical as well as a legal
act. The One God unified the legal and moral when the two seemed irreconcilable.
There seems to me a lot of wisdom in exploring this non-binary approach. Yet, in
this era of false binaries and the battle of the Gods, little do we explore the
alternatives.
A few very serious thoughts which
have come out perhaps not as clear as I wanted them to be. But I have tried to
make an honest point. And God knows better.
