Perhaps the most worrisome risk of the new nativism – Brexit, Trumpism, and the nationalist, protectionist, and racial-purity movements generally – is the potential that the gap between law and justice will widen. The gap widens because of a commensurate narrowing in our concept of duty, legally and morally – duty to others and to ourselves being the bridge between our legal systems and ideal justice.
Legal duty is generally material: I clear the ice from my walk so that my neighbour doesn’t slip and fall. Given that justice adds a moral component to law, a just duty is both legal and moral: I give to the food bank so that my neighbour doesn’t starve (although there is no legal requirement that I do so.) In the last several decades, the community-centred concepts of honour, duty, and even everyday civility have given way, popularly, to unrelenting self-assertion and self-promotion. This is corrosive of the civilizing instinct: in narrowing duty to ourselves and our immediate circle (even if it is a wide one, as with protectionist nationalism), we are adopting a sort of tribalism that otherwise expresses itself in cults and gangs. We obliviously plump for devolution to smaller, contentious groups – survival of the fattest.
How might we address this fundamentally at law? Happily, there exists a comprehensive “perfectionist” definition of justice that neatly combines law and morality without the need of fundamental overhaul to our existing legal systems or of Rawlsian intellectual legerdemain. This approach does not concern renovation, revolution, or complex philosophical formulae; it simply engages human capability or capacity, at its highest, most flattering, contractarian reaches. I am thinking of the approach Harvard law professor Lon Fuller sketched in the 1940s, in his The Morality of Law, elaborated in some respects in Belgium by Chaim Perelman.
Fuller juxtaposes formal legal duty – undifferentiated rules by which “like is treated alike” – against “the morality of aspiration,” what Perelman would call substantive or concrete justice and what I propose as integrated or perfected justice, utopian in principle but proffered here as, ultimately, a practical original position (as opposed to John Rawls’s more complex, artificial, and ultimately impracticable original position for a just society). For Fuller, aspirational or substantive justice is “the morality of the Good Life, of excellence, of the fullest realization of human powers.” It precedes rules of duty, informing them at their heart. The importance of this is that legal duty can be the bulwark of an unjust society, as with Hitler’s Nuremberg laws or racial-segregation legislation in the United States. Therefore, justice must precede and integrate with law, not be dictated by it.
For Fuller, legal duty is material, “pressure” which “leaves off where the challenge of excellence” – the morality of aspiration – begins. (As I wrote in my first post here, however, my own view is that excellence in justice implies duty at a level more demanding than that of conventional legal “reasonableness.”) Aspiration is perfectionist, utopian, the reach that must exceed our grasp. The requirement that justice reflect the most highly evolved standards of civilization (that we pay justice at least the same attention we accord science, technology, sports, and entertainment in our everyday lives) is the absolute in the equation, and therefore more or less predictable and objective. Otherwise, the standard of “perfected justice” would be too subjective or vague – and yes, idealistic – to be of any value. Its actual form is flexible, within the absolute category of civilization, to meet the practical, reasonable limits of human capacity and society.
“The morality of aspiration,” Fuller explains, “is most plainly exemplified in Greek philosophy. It is the morality of the Good Life, of excellence, of the fullest realization of human powers. In a morality of aspiration there may be overtones of a notion approaching that of duty… . Generally with the Greeks, instead of ideas of right and wrong, of moral claim and moral duty, we have rather the conception of proper and fitting conduct, conduct such as beseems a human being functioning at his best.”
Obviously, such a vision of justice cannot help but be stuck in the aspirational, incapable of absolute achievement. But this impossibility should be the motive force in modern developed societies, a motive force behind civic duty. It is the striving, the “audacity of hope,” to use Barack Obama’s phrase, that has built great democracies across the world, including, we must recall at this signal “populist” moment, the United States. Each attempt to realize the ideal brings us closer to it, even as it avoids us. Recall again an earlier post here on playing Beethoven aspirationally, and consider my own theory of perfected earthly justice as nostalgia for an Edenic paradise. (See, e.g., my The Structures of Law and Literature. In addition to the link, see the “Books” page on this website.)
In an era when more people can read and write than ever, of immediate access to the world’s greatest art, music, and literature, we have come, bizarrely, to attribute success (more than ever) with material acquisition and self-aggrandizement. Donald Trump and his nativist cohort are icons for this. (It is no accident that both Mr. Trump and Mr. Berlusconi are media and development tycoons.) We can only hope that our experience with Mr. Trump as a world leader will bring us to our senses, reminding us of what civilization, and justice, really consist. Otherwise, what the founders of North American democracy called “the pursuit of happiness” will amount to nothing more than starring in our own very grim reality show.
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