The Medicinal Power of Justice.

Cormac Burke (Strathmore University Lecture, 2003)

Allow me to begin with some personal details that are not
altogether irrelevant. My father being a doctor and I a priest, I have
always considered that medicine and the priesthood particularly
qualify as service professions - professions dedicated to the service
of others. I am also a lawyer, both civil and canonical; but must admit
that only in more recent years have I come to consider that the law
too has every title to rank as a unique service profession. It is not that
I deliberately excluded it before from my idea of major service
professions; I just did not positively include it in the list. Now I do,
most positively.
How do these callings serve others? In a broad
generalisation, one could say that medicine seeks to heal the body,
priesthood to heal the soul, and law to heal the relations between
persons. This latter point is my topic today.
The law is an art as well as a science. The lawyer seeks (he
or she should seek) not only to know the law - principles of justice, of
rights and wrongs; and claims and defences; and precedents and
procedures - but to bring about justice, in society and between
individuals.
The physician who practices the art of medicine can heal only
if he has a true idea of what bodily health is. So it is with the lawyer
who practices the art of law: he can only help resolve and heal the
disputes about claims and rights that arise in civil society, if he is
inspired by a true idea of justice, of what is really due, and what is not
due, to each one.
Before developing some of the positive implications of this, it
is necessary, I think, to dwell on some negative trends that are
powerfully affecting law no less than medicine, and threatening to
destroy their self-awareness as real service-professions, as well as
the actual human and humanising service they offer.

Medicine is meant to cure; and is now being more and more

instrumentalised in order to take away health and even life. Abortion
is a major example. Doctors violate all that medicine stands for if they
put themselves at the service of abortion. The same applies to
doctor-assisted euthanasia. Medicine then becomes an instrument in
society of what the Pope has not hesitated to call a culture of death,
instead of serving, as it should by its very nature, a culture of life.
The abortion doctor makes himself a part - a principal - to the
taking of innocent and defenceless human life, and so too becomes
an active agent in the current process by which our society is being
rendered violent. Once abortion is 'legalised' - once it is lawful to
eliminate a human life, simply because someone finds it unwanted or
a nuisance - what grounds are there to convince people that one
cannot take other lives which are seen as an obstacle to the
satisfaction of lust or greed or desire for revenge? By what arguments
can one convince a person who is so inclined, not to eliminate an
aged parent who has become a burden on one's nerves or finance or
patience?
Law is also being used and instrumentalised for a whole
process of dehumanisation of persons and society. Law is meant to
be at the service of rights: of their definition, their defence and
vindication. This is often not the case with the law today, because of
the rapid undermining and loss of the sense of what is really due - or
not due - to persons.
Laws are being passed which create "rights" that are wrongs,
and which therefore violate true human rights. If a "right" that is a
wrong is exercised, it immediately does wrong. It does wrong first of
all to other people. An instance could be education laws by which
parents are deprived of rightful parental say regarding the education
actually given in school to their children. Such laws obviously violate
the parents' rights, as well as those of the children. Divorce laws
violate the rights of children even more; for children have a right to a
united home, where they can learn that most fundamental lesson for
future life in society: that it is possible for people to get on, respect
each other, remain faithful to freely assumed commitments, despite
the apparent justification for quitting which the defects of others

(one's partner, one's associate, one's spouse or whoever) may seem

to provide.
More should be said here, however. A "right" that is a wrong
not only harms others, but also harms the very person exercising that
false right. The same considerations just given about divorce could
easily be developed to show why divorce laws tend to do harm to the
spouses themselves (the more the "easy way out" is taken, the more
enclosed people become in softness and selfishness). Abortion no
doubt illustrates this point even more graphically and tragically. The
woman or girl who exercises her legal "right" to abort, not only harms
- destroys - the life of the child she has conceived, but does grave
harm to her own life as well. A permissive society may hold nothing
against her. Her parents, relatives, friends, even if perhaps they think
she did wrong, may forgive her. But she will not be able to forgive
herself.
As any pastoral worker knows, she has to live out the rest of
her life with the terrible awareness of having killed her own baby wanted or unwanted, but hers. And in the few cases where she
manages to overpower or suppress her sense of guilt, the same
pastoral experience shows that she does so at tremendous cost to
herself - the radical defeminization and dehumanization of her
personality and life. No law should allow any woman or girl to do
herself such a wrong.
Common good
The legal profession is in a special way at the service of
justice; it seeks to defend individual and inter-personal rights, and in
doing so serves to bring about and maintain the common good.
But if the lawyer has not a clear idea of the common good,
and equally of the extent and limits of personal rights, he may find
himself in the position of defending "rights" beyond the measure of
justice. Then of course he would not be following the true norm of
justice, which is "to each his due", and he would be false to his
professional calling.

Here one could ponder words from a 1992 Address by Pope

John Paul II to the World Jurist Association: "Among the primary aims
of law must be to ensure that each person receives his due, at every
level of social life". Recalling words he addressed to the same
Association in 1979, "the whole history of law shows that law loses its
stability and its moral authority... whenever it ceases to search for the
truth concerning man", the Pope went on: "The tragic consequences
of disregard for truth have been especially evident in our own century,
in regimes which have sought systematically to suppress the truth,
presuming to deprive people of their inalienable rights in the name of
some higher justice, or showing a readiness to sacrifice the rights of
individuals to the rights of the State and its programmes".
If there is no truth about man, then there can be no truth
about the relations betweeen men, no true measure of what is due to
each; and the law itself and every legal system become playthings in
the hands of the powerful. This conclusion is not peculiarly Catholic,
but is of universal application. So Pope John Paul in his Encyclical
Evangelium Vitae (1995) says that in order to save true democracy
and freedom, "there is a need to recover the basic elements of a
vision of the relationship between civil law and moral law, which are
put forward by the Church, but which are also part of the patrimony of
the great juridical traditions of humanity" (Ev. Vit. 71).
So the parameter of law is not parliament or statute or the will
of the people, but justice. To each his due - means to each what is his
according to natural justice, not to arbitrary decisions. It is only when
law is derived from a proper discernment of what is just that dialogue,
good will and the sense of values shared in common can begin. That
is why it has been rightly said that "the first form of culture is law",
and only where law is rightly based and commands general respect
can one speak of civilization and of civilized men. Any society without
such a concept of law has not emerged from, or is returning to, a
state of barbarism .
One cannot exaggerate the importance for all citizens, and for
doctors and lawyers in particular, to have a proper grasp of the
Natural Law; so as to know what humanises, and what on the
contrary makes society less human. If they consider the matter in any
depth, people realise without difficulty that the law of the State is not

and cannot be the ultimate norm governing human standards or

conduct; nor is it always binding. As is clear from the constant appeal
to human rights, modern consciousness is becoming more and more
sensitive to the fact that laws can be in violation of rights inherent in
human dignity. Nevertheless, the human rights movement is itself in
danger of working from false or inadequate premisses. That is why
attentive reflection and keen scrutiny are specially needed today, so
as to identify true personal rights, and to be able to distinguish them
from false "rights", which in effect violate human dignity and
dehumanise persons.
The Pope put it very positively in an Address to the
International Union of Catholic Jurists four years ago: "The possibility
of giving his or her due not only to a relative, friend, citizen or fellow
believer, but also to every human being simply because he is a
person, simply because justice requires it, is the honor of law and of
jurists. If there is an expression of the unity of the human race and of
equality between all human beings, this expression is rightly given by
the law, which can exclude no one from its horizon under pain of
altering its specific identity" (Nov, 24, 2000).
Just and unjust laws
A just society is not the automatic result of just laws, since
there will always be some persons who have no respect for any type
of law. Nevertheless, just laws have an immense positive social
effect. Along with rightly ordering men's relations, they also have an
educative function. They present an image of justice that people can
look up to and take as a model for their everyday relations with
others.
People have the right to laws that are just, and to a just
administration of law. They have the right to see that justice is equal
for all. They have the right to see that judges and police are above
corruption; in other words, that you do not have to bribe agents of the
law to gain your rights, and that you cannot bribe them to obtain what
is not your right. They have the right to see that justice is not sold and
that injustice cannot be bought.

A society where laws are just and are justly administered will
be a society where people - the majority of people - look up to the
law, sense the sacredness of the law, and so are more encouraged to
follow justice in their personal lives.
A just society is not the automatic result of just laws. But an
unjust society is the inevitable result of unjust laws. Unjust laws bring
justice into disrepute. They lead to contempt for authority. They
undermine the sense of the rights of others, cause mutual distrust
and give an excuse for mutual exploitation.
Unjust tax laws obviously foster tax evasion. Discriminatory
laws against minority groups produce frustration and hatred. Unjust
allocation of public money (which, after all, is the people's money)
spreads the 'let-me-too-see-what-I-can-get' mentality ....
A society will not be healthy if it lacks good laws. But even a
society with good laws can be unhealthy if its citizens lack respect for
law. The harmful effect of bad laws is evident. Good citizens will not
respect bad laws, and are right not to do so. Their lack of respect is a
defence reaction of healthy members of society against a disease
that threatens the whole social body. But that very lack of respect for
bad laws risks turning into a sort of contagion that spreads and
reaches out even to good laws; and even to the whole concept of law.
Good citizens will not respect bad laws; bad citizens will not
respect good laws. That is natural. What is not so natural is when
good citizens are tempted not to respect good laws. But, I repeat, this
is something that can occur. A generalized loss of respect for law can
be a social disease that proves fatal to a society.
The unhealthy reaction of lack of respect for good laws among otherwise good citizens - can come about in different ways. It
can obviously come in the aftermath of a period of bad laws or bad
administration. Even if new and good laws take the place of the bad,
and honest administration that of corrupt, it will probably take some
time before people's confidence in the law and sense of respect for
the law are restored.
Authority, an instrument of oppression?

One of the difficulties affecting people's attitude towards law

today is the tendency to be suspicious of all government.
Government means authority; and authority, it is suggested, is in
some way (or so easily becomes) an instrument of oppression.
Besides, government implies rulers and subjects, and therefore
seems to suggest superiority and inferiority. Is there not something
degrading in being 'under' authority?
These difficulties need an answer, since the fact is that we
cannot have laws, effective law, (and therefore we cannot have
justice) without government.
Authority implies a relationship between those wielding
authority and those subject to it. But this is not essentially a
relationship of power, nor is it based on force, nor on the ability to
bring others into subjection. It is a relationship of free wills, properly
ordered towards the common good. So, of its nature, it implies reason
and freedom in both those exercising and those accepting authority.
Where authority is properly exercised, in the carrying out of
just laws, it is not opposed to personal freedom but fosters it and
serves it.
To the thinking man, just authority is seen as a positive good.
The principle of authority has a certain sacredness to it, because it
brings justice to society. Acceptance of authority is a reasonable act.
Obedience to authority becomes an act of freedom and a sign of
maturity. Behind authority lies the will of God (cf. Rom 13: 1; Jn 19:
11); that is the ultimate reason for its sacredness. Acceptance of
authority is therefore a rational and religious act.
Opposition between personal freedom and authority or
government arises only when there is a disorder in one or the other. If
an individual uses his freedom wrongly, he will meet the opposition of
authority as it defends the common good. If authority becomes unjust
and tyrannical, then personal freedom: a) is not bound to obey it; b)
may choose to resist it; c) may in extreme cases even be obliged to
resist.

Even in cases a) and b), however, as long as the authority or

law in question is not essentially opposed to the common good, it
may be better to obey it or have recourse to peaceful civil
disobediences, rather than to rise against it violently. The reason is
that the principle of authority lies at the very foundation of the social
order; and is therefore itself a great good. To oppose it with violence
in order to remedy a particular situation may have the effect of
undermining people's respect for any authority.
A person may rise against a particular government or
authority because of this or that specific law which is unjust. But this
example of violent disobedience and rebellion, apart from the
immediate disorder and bloodshed it is likely to cause, may
encourage all sorts of dissatisfied groups into thinking that violence
and rebellion are legitimate ways of advancing their claims.
Taking the law into one's own hands risks destroying all sense
of law. Lawlessness is a contagious disease that spreads rapidly.
History offers many examples of how rebellions against defective or
corrupt governments have plunged countries into civil war or anarchy;
and in the end often left them under an even more tyrannical
government.
Justice that heals
Lawyers are constantly under pressure to act as if their
mission is to serve people's interests, whereas it is to serve their
rights. The lawyer owes it to his or her clients to defend their rights.
But he must also help them not to claim more. To help them obtain
more would be injustice towards others; and injustice is always the
seed of further social disturbance. So the lawyer has a professional
duty to try to get a client to see what is just; and to see what it would
be unjust to demand.
Law, like medicine, has a particular healing power - always
provided it is properly applied. People so often react embitteredly if
they do not get all they wanted. But if what they wanted was not what
they were entitled to, they should be helped to be satisfied with what
in fact was their due. That way resentment and bitterness can
gradually give way to peace. The lawyer can do so much here which

so furthers social peace. This is where we should see the broader

reaches of the lawyer's concern and service mission.
The delicate and difficult process of discerning, defending,
and finally declaring what is just, is rightly considered a legal and
judicial task. But the common good requires that it be backed up by
the equally delicate and difficult task of getting people to see that
what has been declared to be just is in fact just, and to accept it as
such. Is this latter task to be left solely to priests and pastors? Is it not
also a task for the true jurist, for one who loves justice and wants to
bring it about? Should it not also enter his professional horizons and
concerns?
Lawyers would not be doing true legal work if they failed to
present to people the full personal challenge presented by the living
of justice. It would be a great pity if they were afraid to put challenges
to people or to underestimate how much the challenges of justice
attract when they are properly presented. Justice, despite its
difficulties, has an appeal, an immense appeal. And this is true not
only of social and distributive justice, but also (and very particularly)
of commutative or inter-personal justice, with its summons to each
one to respect others, to face up to what he or she owes to them, and
to give it.
Medicine is designed to heal; this too should be true of justice.
But the healing power of justice is at times not appreciated by lawyers
or judges. If so, they will not be able to activate its power in this sense
among others. And yet justice, if properly understood, is something
enormously attractive and a powerful stimulus to people. It appeals to
their inner honesty, to their deeper sense of values, calling on them to
put the proper rights of others above their own personal convenience
or advantage; or at least to put them on the same level as their own
proper right.
At times I have come across a suggestion which leaves me
perplexed: that a judgment has no power to "heal" persons or
situations, for it always leaves someone "wounded". It is not
necessarily so. A just judgment has great power to heal, or at least to
point out the path to personal and social health. It is true that the
judgment alone - the simple declaration of justice - may not be

sufficient to restore health. It needs to be accepted personally, and

put into effect. That is why even though justice always possesses
healing power, in the end it is not just the declaration but the
acceptance of justice that heals. To bring about that acceptance is a
task that the lawyer must attempt, if he is to be fully faithful to his
vocation. He must attempt it, even if the attempt often enough
appears to meet with no success, just as the doctor must always try
to give health and save life despite his many failures to do so. It is the
noble task of both professions.
Good medicine heals; but of course the healing process
demands not only that a proper diagnosis be made but also that the
patient accept the necessary treatment, even if bitter or painful. The
diagnosis or prescription - the judgment - is useless if the sick person
refuses to accept and apply the remedy, or if there is no one capable
of persuading him or her to do so.
So too, both judges and lawyers have a capacity to heal. But
their healing capacity is not exercised if they let people think that a
violation of rights, or a failure to fulfill obligations, or a tampering with
due process, is a healthy and not a pathological situation.
Yes, one comes across cases where a judgment seems to
leave a person "wounded," and he or she lapses into a bitter and
resentful attitude. But if the judgment is just, the person should not be
that way, or be left that way. The true professional concern in such
cases ought to be to help the person out of that attitude, through
seeing that the judgment, despite the burden it may seem to put on
him or her, upholds other people's rights. Only if the person accepts
this, will the "wound" gradually disappear and the healing process be
brought to completion. The lawyer no less than the doctor has
constant opportunities, and God will give him special grace, to bring
about such deeper healings, so important for social solidarity and
peace.
If lawyers and judges do not understand these points or no
longer strive to put them into practice, they fail to grasp the nobility of
their professional vocation and to carry out their privileged and unique
service mission to society. They and society are much the poorer for
it.