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Justice, Virtue, and Law

Published online by Cambridge University Press:  03 February 2016

E. Clinton Gardner
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Extract

The purpose of this paper is to examine the relationship of justice understood as a virtue to law and public policy. Is justice adequately understood in terms of virtue, or does the former also include certain rules—or laws—which constitute criteria of justice in human community? If the concept of justice includes the notion of rules as well as virtue, how are the two ideas related? At a more fundamental level, is justice, indeed, a viable concept in modern, pluralistic society?

In an effort to explore these questions we turn, first, to three contemporary ethicists who have attempted to ground morality in public life fundamentally upon the notion of virtue. The first of these writers—Alasdair MacIntyre—is a philosopher; the remaining two—Stanley Hauerwas and James M. Gustafson—are theologians. While each is deeply influenced by Aristotle and Aquinas, all three fail to give adequate attention to the relation of justice conceived as a virtue to law in the latter, particularly in Aquinas. The ensuing section of the paper is devoted to an analysis of the structures of justice as a requirement of collective forms of human life. Consideration of the structures of justice leads, in turn, to the question of the relationship of justice to law. Finally, it is argued that, from a theological perspective, justice is most adequately understood as a form of covenant and that the ultimate norm of justice is reconciling love. Justice is a human task which aims finally at the reconciliation of broken community and the achievement of new forms or levels of the common good.

Type
Articles
Information
Journal of Law and Religion , Volume 2 , Issue 2 , 1984 , pp. 393 - 412
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1984

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References

1. MacIntyre, , After Virtue 227 (1981)Google Scholar.

2. Id. at 143.

3. Id. at 236.

4. Id. at 244-45.

5. Id. at 245.

6. Id. at 237.

7. Id. at 237.

8. Id. at 194-205.

9. If MacIntyre's proposal concerning the construction of local forms of community had been stated in theological terms, it would have represented a form of “Christ Against Culture” morality described by Niebuhr, H. Richard in Christ and Culture, 45–82 (1951)Google Scholar. Hauerwas' ethic also resembles this type of theological ethics; Gustafson's, on the other hand, is more closely akin to the Thomistic synthesis of morality based on faith and reason as well as the synthesis of virtue and law.

10. Hauerwas, , A Community of Character 128 (1981)Google Scholar [hereinafter cited as Community of Character; cf. Hauerwas, , Vision and Virtue 228–240 (1974)Google Scholar [hereinafter cited as Vision and Virtue.

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17. Hauerwas, supra note 12, at 104, 114.

18. Vision and Virtue, supra note 10, at 231-240.

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20. Id. at 3, 128.

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22. Hauerwas, , Character and the Christian Life 14–16 (1975)Google Scholar.

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31. Vecchio, Del, Justice: An Historical and Philosophical Survey 54 (1956)Google Scholar. Del Vecchio further notes that this characteristic of justice has been “reasserted by all subsequent writers who have thought deeply on the subject.” Id.

32. Aristotle, supra note 29.

33. Id. at 143.

34. 2 Aquinas, T., The Basic Writings of Saint Thomas Aquinas 830 (Pegis, Anton C. ed. 1944)Google Scholar.

35. 37 Aquinas, T., Summa Theologiae 31 (Gilby, Thomas ed. 1975)Google Scholar.

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37. Id, at 51.

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41. Id. at 99.

42. Id. at 89.

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46. Id. at 156-57, 163-164.

47. Id, at 159.

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52. Id. at 27.

53. Id. at 49.

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61. Del Vecchio, supra note 30, at 148. See also Perelman, supra note 53, at 60: “An imperfect [system of] justice, without charity, is no justice.” Since all existing systems of justice are imperfect, they need to “draw fresh inspiration” from the more immediate and spontaneous values, the chief of which is charity.

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66. Schrey, Heinz-Horst, Biblical Doctrine of Justice and Law 182–83 (1955)Google Scholar.