The Law: Sacred Writ or Institutionalized Injustice?
by Malcolm Boyd
Father Boyd, is an Episcopal priest, author and social critic. Fr. Boyd delivered the address from which this article is adapted at the New York University school of law’s bicentennial conference on "American Law: The Third Century." This article appeared in the Christian Century, June 23-30, 1976, pp. 592-596. Copyright by The Christian Century Foundation; used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted and Winnie Brock.
One of Langston Hughes’s memorable literary characters, Jesse B. Semple -- nicknamed "Simple" in the three books written about him -- invariably speaks his mind with wry understatement on a variety of issues. I was not disappointed when I looked to see if Simple had said anything about the law in the perspective of ethics:
"If I was setting in the High Court in Washington," said Simple, "where they do not give out no sentences for crimes, but where they gives out promulgations, I would promulgate. Up them long white steps behind them tall white pillars in that great big marble hall with the eagle of the U.S.A., where at I would bang my gavel and promulgate."
"Promulgate what?" I asked.
"Laws," said Simple. "After that I would promulgate the promulgations that would take place if people did not obey my laws. I see no sense in passing laws if nobody pays them any mind."
What would happen if people did not obey your promulgations?" I asked.
"Woe be unto them," said. Simple. "I would not be setting in that High Court paid a big salary just to read something off a paper. I would be there with a robe on to see that what I read was carried out. I would gird on my sword, like in the Bible, and prepare to do battle. For instant, ‘Love thy neighbor as thyself.’ The first man I caught who did not love his neighbor as hisself, I would make him change places with his neighbor -- the rich with the poor, the white with the black, and Governor Faubus with me" [Simple’s Uncle Sam (Hill & Wang, 1965), p. 160].
Simple is fully aware of the ambiguities to be found where law and ethics meet or fail to meet. A question that might intrigue Simple is this one: Can morality be legislated?
The initial problem with such a question is that, in our highly pluralistic society of competing self-interests, it is excruciatingly difficult for people to reach a mutually acceptable definition of what constitutes morality. For example, is morality to be found in the arguments. for or against legalized abortion, busing, and the "right to die"? Is it found in the arguments for or against free sexual expression of consenting adults, prison reform, government surveillance of people’s lives, and civil disobedience? Where such issues are at stake, one encounters bitter conflict among proponents of sharply divergent ethical propositions.
A Godlike Authority
Since moral relativism has to a large extent replaced the old clear-cut lines of authority, the burden placed upon the law today by our society is a virtually insupportable one. For the law is, by default, supposed to be society’s moral arbiter, its agency of ethics, its definer of right and wrong. There is a deep irony in this situation because the law is inescapably the definer of our surrogate morality rather than of our morality itself. Indeed, morality forms the very foundation of law. As Peter Singer points out: "Our ultimate obligation to obey the law is a moral obligation and not a legal obligation" (Democracy and Disobedience [Oxford University Press, 1973], p. 3).
Nonetheless, there is an expectation on the part of society that the law will speak from on high as well as in the people’s midst, and that it will make straight what would otherwise remain twisted, crooked lines; it will establish order in the stead of anarchy and chaos; it will retain a semblance of purity amid vile motives and human deceits; it will speak with godlike authority and power in a godless age. The law is the first to say, of course, that this situation is absurd, untenable and beyond the pale of rationality. And yet, these expectations persist. That this is so does not mean that the law is loved by the society or even universally respected. But the law exists; it is a given factor of stability, credible historical development, and yearned-for order amid the rise of violence, terror and an unspeakable sense of insecurity that haunts the burnt-out souls of an anxious people.
At the same time that the society places the law inside a transitory and secular holy of holies, the law itself is torn by conflicts concerning its identity and role. Is there a point of intersection between law and morals? Are what is and what ought to be indissolubly fused? Legal positivism has insisted on the separation of law as it is and law as it ought to be. It has viewed law not as an ideal, but as something that exists and must be considered in its actuality.
On the other hand, for Lon L. Fuller "it is in the light of [the] ‘ought’ that we must decide what the rule is’" ("Positivism and Fidelity to Law -- A Reply to Professor Hart," Harvard Law Review, February 1958, p. 666). He raises the question: "Is it really ever possible to interpret a word in a statute Without knowing the aim of the statute?" He claims that law possesses an internal morality," and says:
The fundamental postulate of positivism -- that law must be strictly severed from morality -- seems to deny the possibility of any bridge between the obligation to obey the law and other moral obligations. No mediating principle can measure their respective demands on conscience, for they exist in wholly separate worlds.
The Sanctioning of Evil
If we believe that the law in its proper role reflects the ideal of a higher justice, how then are we to react when it violates that ideal? If the law seemingly institutionalizes injustice, is there a need to disobey it? From childhood through school days and college, I understood implicitly that there was, in practice, one law for haves and another law for have nots. (Anatole France perceived the law somewhat differently. To him, it was inherently inequitable rather than merely unequal in application. "The Law, in its majestic equality," he wrote, "forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.")
Whether my own awareness came from early reading (Edwin Markham’s "The Man with the Hoe," Charles Dickens’s Oliver Twist, Victor Hugo’s Les Miserables, a book about the Scottsboro case, Richard Wright’s Native Son), or simply from viewing life around me in the Great Depression, in the metropolis where I grew up, in the racial maze where blacks and whites lived their separate lives -- I do not precisely know. In my teens I learned that a Marian Anderson concert was not merely another concert. I knew that Marian Anderson was black. The manifold meanings of her blackness escaped me, but beneath the surface of that knowledge there lurked an awareness of tragic symbols that caused me to weep quietly in my seat in the concert hall when she sang "Sometimes I Feel Like a Motherless Child." I also knew in my bones that the racial tragedy had the sanction of law.
I was a student in high school when I listened to the radio reports of H. V. Kaltenborn -- he was Walter Cronkite, John Chancellor, Harry Reasoner and Barbara Walters rolled into one -- on the rise of Hitler and a new anti-Semitism. Nazism was a distant but quite close-to-home monstrous force that repelled and frightened me, forcing me to look with apprehension and a new kind of wonder at my Jewish classmates. "Juden" became a chilling word in my limited, growing vocabulary that also included "nigger." The Nazis’ destructive urges against Jews were bolstered by (I realized) the sanction of law.
What, then, was I to make of the law? It seemed to possess the power to do terrible things as well as good ones. I determined never to run afoul of the law with its seeming capriciousness. I did not wish to find myself under any circumstances in its Witch-of-the-West clutches. Some people would say that it was a good thing that I feared the law. But, alas, I did not respect it. Although I held it in awe as being sacrosanct, possessing even an element of the mysterium tremendum, I knew that it could be manipulated by the leverage of power. A demythologizing of the law took place in my early consciousness.
I had no way of knowing that later in my life I would actually test the law in the light of ethics as I understood them. Years afterward when I was a freedom rider, an earnest figure of the early ‘60s, I endeavored to test (and change) the law that enforced apartheid -- the practice of separate lives and opportunities for blacks and whites -- and that even forbade racial mixing at a lunch counter. Often in the course of the civil rights struggle, one found oneself stopped short by the stone wall of a dehumanizing system embedded in unyielding laws.
One felt a sense of wrestling with shadows or ghosts. Where was one’s ground? As a middle-class white volunteer at work on black voter registration in the Deep South, I rode along a highway one day in a car with three young black men. We drove well under the speed limit in order to avoid a confrontation with the police. But our car was stopped by the police, and we were actually arrested on the utterly false charge of speeding. The experience was a profoundly shocking one for me. I had always embraced the concept of law and order. But now I had to ask myself: law and order for whom? What could one make of an "order" that brought disorder into people’s lives, tyrannizing them? More significant was the shady underworld of killings and lynchings. The story of Emmett Till comes to mind as a latter-day example that at least became widely known and received the attention of the news media. For an agonizingly long time, such victims of torture and gross injustice had no access to justice. On entirely too many occasions, local laws apparently stood in the way of access itself, even though access was guaranteed by the United States Constitution.
When the Vietnam war raged madly out of control -- consuming human lives, gutting a portion of the earth, and souring an American generation’s idealism -- I found myself once again a dissenter. This time I did not test or try to change laws; I merely wished to exercise responsibly the civil liberty that I believed was my right. Yet I recall how Vice-President Spiro T. Agnew attacked "the glib, activist element who would tell us our values are lies." He seemed not to understand that criticizing the state can be a way of honoring it, and that without the honest and creative practice of dissent, democracy suffers irremediably. Concerning those who dissented, Vice-President Agnew proposed "to separate them from our society with no more regret than we should feel over discarding rotten apples from a barrel."
On two occasions I participated -- once as the celebrant, once as the preacher -- in peace masses inside the Pentagon, nonviolent and orderly demonstrations for the cause of peace. Laws of access at the Pentagon were not the issue; instead, it was the seeming irrelevancy of the law itself to the conduct of an undeclared war that seriously strained the moral fiber of the nation. When we were arrested on the two occasions, the legal charge of disturbing the peace had to be juxtaposed against the reality of how many bombs the United States had dropped that day on Vietnam. One thought inescapably of how many Americans and Vietnamese were being killed on the same day that a few dissenters tried against clearly hopeless odds to disturb the peace of the Pentagon.
At the particular times when I have felt impelled to engage in acts of public dissent, I was never so naïve or self-righteous as to feel that God was on "our side." Yet undeniably I believed that I was following the dictates of my own conscience as well as the fundamental precepts of what I had learned was the Judeo-Christian ethic. But this can be heady stuff. Is there such a thing as "law above the law or "the moral code"? Is there "a lamp unto the feet and a light unto the path" and "a still small voice," or are these mere delusions in the place of serious reality? Do so-called moral values possess any ultimate sanction over legal sanctions?
The Holocaust: Justice Judged
The year 1984 is now but eight years away. However, I do not presume to look into the future or to inspect its implications, whether these be Orwellian or Disneyesque. Instead, let us look backward 30 years to the Holocaust, the systematic extermination of 6 million Jews. It is the single event in my own lifetime that has most deeply affected me. Millions of people participated in it. To observe a single aspect of it places us sharply in an existential frame of reference. One asks: How could the Holocaust have occurred in a highly civilized society rich in historical mores, the practice of religion, and a vigorous intellectual life? We need to hold the Holocaust in a precise perspective of near-contemporary occurrence instead of letting it become an abstract symbol of universal numbness. In the interest of specificity, consider this excerpt from a German engineer’s sworn testimony at the Nuremberg Trial:
I went round the mound of earth and stood before the gigantic grave. People lay in it so closely packed one upon the other that only their heads could be seen. The trench was already three-quarters full. By my reckoning there were already about a thousand people lying in it. I looked round to see who was shooting. An SS man sat at the edge of the trench letting his legs dangle in it; he had a submachine gun resting on his knee and was smoking a cigarette.
The completely naked people went down a few steps which had been dug in the wall of the trench, scrambled over the heads of those who were lying there to the position that the SS man indicated. They lay down among the dead or wounded people; some stroked those who were still alive, and spoke quietly to them. Then I heard a succession of shots. I looked in the trench and saw how the bodies twitched; blood spurted from the necks. I was surprised that no one told me to go away, but I also saw two or three postmen in uniform standing nearby [The Nuremberg Trial, by Joe J. Heydecker and Johannes Leeb (World, 1962), p. 334].
Could anything demonstrate more vividly the crying need for a higher judge of law? What judges justice? This event, the Holocaust, judges justice! It took place at a particular time and place, and certainly with the compliance of the law.
So we have learned that the law, sometimes mistakenly equated with justice, cannot be considered sacrosanct. But does this mean that we must accept, for example, Philip Berrigan’s dictum that "given America’s crimes, keeping the law is rejecting Christianity" (Widen the Prison Gates: Writing from Jails [Simon & Schuster, 1973], p. 51)? Surely one cannot insist upon a utopian ideal of an absolute moral purity as a prerequisite for keeping the law in human society, where there can be only approximate justice, and moral ambiguities are as much a part of life as idealism and spirit.
Conscience and the Law
"Let justice roll down like waters, and righteousness like an ever-flowing stream," wrote Amos. But, Giorgio Del Vecchio tells us, justice can be hard to grasp or to define precisely:
Justice is sometimes taken to be synonymous with or equivalent to law, sometimes to be distinct from law and superior to it. Justice in one of its aspects is held to consist in conformity with law, but it is also asserted that law must conform to justice. What at one moment is taken as the standard whereby to judge what is just and unjust can in turn, in its manifestation as mere empirical fact, be itself judged in the same way; this happens when we appeal, in the name of justice, to a higher ideal criterion which transcends all rules of positive law and must therefore rest on some other foundation [Justice: An Historical and Philosophical Essay (Edinburgh University Press, 1952), p. 1].
When is it possible for a society to agree upon this "higher ideal criterion"? Is it not by means of perversely appealing to such an undefined "criterion," which is said to transcend "all rules of positive law" and "therefore [to] rest on some other foundation," that the door is opened to the "transcendent" or "divine" or absolutist rights of those who do evil even as they claim to stand above the law? If, as citizens, we are told that it is our duty to hold conscience above the law, what collective conscience can save us from the sheer anarchy of a legion of individual consciences?
Most people’s individual consciences will be informed by the individual consciences of peers and colleagues, and the collective represented by these. But collective consciences can create the most barbarous evil, as in Nazi Germany and present-day South Africa. There is a profound need for these individual consciences to be nurtured by morality in the sense of a universally accepted ethical context. Few would argue with Lord Devlin when he says: "The idea that you must not seek without restraint your own profit and well-being but must be careful that in so doing you do not injure others is a moral idea that is part of the foundation of every good society" (Law and Morals [Holdsworth Club of the University of Birmingham, 1961], p. 3). And this is surely not the only universally accepted moral principle. When the law is true to its nature, it provides a parameter for the implementation of this principle and others like it.
However, to accept this role for law and to put it into practice are quite different things. There’s the rub. One could travel in this bicentennial year to a thousand American communities, and in each of them see instances of human tragedy directly based upon failures of justice and the breakdown of moral ideas -- this in the face of operative legal systems. What hope is there that the law can make any difference in these fragments that form a mosaic of impending social tragedy that is as much a part of the American bicentennial observance as are TV specials and patriotic oratory? What is the law in the perspective of ethics supposed to mean when it comes to the needed growth of genuine social morality and the injection of hope itself into human lives?
Apparently we must hold in some kind of a workable balance (1) the demands of individual conscience, (2) the extenuating demands made upon individual consciences by the often competing realities of society and the world, (3) the dangers inherent in postulating an undefined higher ideal criterion which is said to transcend all rules of positive law, and (4) the moral vision inherent in a higher ideal criterion that takes positive shape in the service of human needs and justice.
A Prophetic Instinct
A sick, badly wounded or endangered society is addressed by occasional surrogate prophets. A healthier society is informed by a prophetic instinct -- even a body of knowledge -- that is generated, nurtured and shared by a larger number of people. This prophetic instinct needs to provide the foundation of a responsible, self-challenging, socially challenging, humanly responsive community of law.
Let the law be the servant of justice. Justice needs to be informed by love and mercy. Surely these words do not comprise mysterious conundrums or puzzles within puzzles that are incapable of being understood in this moment of the age-old struggle between the individual and constituted authority. Let the law not reduce itself to letter-perfect casuistry that denies its own servanthood to humanity. Humanity is never a cut-and-dried entity. Brand Blanshard usefully reminds us: "However capricious or selfish or brutal a man may be in actual behavior, if we are right in calling him a moral being at all, what he is trying to be and do is never exhausted in what he is" (Reason and Goodness [George Allen & Unwin, Ltd., 1961], p. 397).
On this point our best poets and playwrights agree with our most explicitly moral prophets. This is an essentially optimistic, generous, open-ended and hopeful view of the human endeavor. The law must maintain order, yet recognize that order is changing, adjusting, relating to the human beings whom it encompasses. Order is fluid, not constant; it is not a straitjacket, but a garment that adheres naturally to the body following long use.
One thing is clear. Internal morality is not essentially different from external morality. The law is judged by the law. The law above the law, and the law within the law, are the same and cannot be seen as standing separate from the essence of the law itself.
As a people we do not wish to see the law as holy. At its best the law is a guide to motives and actions that point toward what is holy. As a people, we do not wish to suffer under the law as institutionalized injustice that stands in the way of justice and decency. We seek a balanced vision of the law as necessary, and based on justice and suffused with love and mercy. We yearn and are sometimes heard to cry out for this.
As we need the law, so does the law need us. It needs us to irritate, prod, disturb and criticize. Why? Because the law needs people as human reminders of what the law ought to be, and is capable of becoming, so that it will not arrogantly and comfortably settle for what it is. Let the law be honored in its own practice.