This very large disagreement I have with many lawyers – not most, perhaps, but certainly many – about whether there is such a thing as justice and even if there is whether it matters or has anything to do with practicing law, has corollary disagreements that are as big. And in some ways bigger.
Plainly, if justice is not an intelligible concept or is unknowable then doing anything to make the world more just is worse than a fool’s errand. And if that’s the beginning and end of the discussion you never get to an equally or maybe more important problem afflicting our justice system:
How does one make the world more just?
This issue is more subtle, yet every bit as profound. Institutional actors – that is, cops, prosecutors, judges (do I repeat myself?), insurance defense/big firm lawyers, banks and their lawyers – come to believe that justice is imposed by institutions upon individuals, because this is how they encounter it. If indeed they do, that is. Anyway, this leads to a belief, unconscious at first but more and more deeply felt as you go along, that justice is primarily an institutional responsibility. This in turn leads to the corollary, an implicit belief that justice is not an individual responsibility. This leads to more individual irresponsibility that in turn leads to more cases where institutions must impose justice on individuals.
Self-reinforcing loop, doncha know.
So once this mindset is fully in control the question of how to make the world more just is seen as an inquiry about grand, collective institutional action for the common good.
It doesn’t sound like there’s anything wrong with that, until you consider that justice was traditionally regarded as a virtue – indeed one of the four cardinal virtues – to be practiced by individuals.
So to a traditionalist, then, the idea of justice being practiced by an institution by imposing it on individuals is incoherent nonsense. You will have a just world to the extent individuals living in it practice justice, and injustice exactly the same way. Thus again to a traditionalist, the world becomes more just by more people practicing justice, or practicing it more. It’s a one-individual-at-a-time kind of thing. It’s about personal conduct.
Where are we, then, in the legal profession? We have one group – the institutional kind – who believe in justice but regard it as residing in institutional rules, power and force. We have the other group that in the main claims there is no such thing as justice. Both of these, from the traditional point of view, are utterly hopeless in achieving any semblance of justice in the world.
Should it surprise anyone, then, that injustice thrives and that the legal profession seems to facilitate it?
What is justice?
St. Augustine tied justice and the other cardinal virtues together. They are all different aspects of love:
“For these four virtues (would that all felt their influence in their minds as they have their names in their mouths!), I should have no hesitation in defining them: that temperance is love giving itself entirely to that which is loved; fortitude is love readily bearing all things for the sake of the loved object; justice is love serving only the loved object, and therefore ruling rightly; prudence is love distinguishing with sagacity between what hinders it and what helps it.”
But we don’t have to get all squishy and Catholic. You can find a pretty good summary of western thought about justice here. It begins – and it is unarguably appropriate to begin exactly like this in discussing the concept of justice – with this sentence:
Justice is one of the most important moral and political concepts.
For a lawyer to maintain that there is no such thing as justice is perverse. One could make a good argument that it’s disqualifying.
On a traditional understanding, it’s the job of lawyers to make the world more just, one individual and case at a time. You can’t join that great task if you deny that it’s even possible.