Summum Ius, Summa Iniuria: When Does Law Distort Justice?

Your excellency, my brother priests and fellow religious, distinguished lawyers, and all my brothers and sisters in Christ. We have gathered at this Holy Sacrifice of the Mass in order to ask the Holy Spirit to bless and guide these, our fellow Catholics, whose vineyard is the law. This noble profession is no mean apostolic challenge in our day. But it has been a terrible challenge before: as in the 16th century, when the patron of lawyers, St. Thomas More, had to serve the true law by giving his life in obedience to the law of God when the false “law” of a mere man defied it. The challenge is not so great at this moment in the United States, but there are nonetheless great challenges, and in order to meet them, we all, especially lawyers, need the guidance and blessing of the Holy Spirit.

We should take great consolation in realizing that Our Lord and Savior Jesus Christ was the greatest critic of the law in history. The Sermon on the Mount is unsurpassed in its assessment of law. What precisely was that assessment, and how is it relevant for us today?

In the first place, a cornerstone of Our Lord’s teachings is that the law will not save us. St. Paul expressed this truth with such vigor that it has given rise to profound misunderstandings through the centuries, but most par­ticularly in the 16th. The truth of the matter is not difficult, and Holy Mother the Church has taught it with singular con­sistency.

The law will not save us for two reasons. The first is that in sinful human affairs, justice, which it is the law’s du­ty to effect, is not enough to resolve our problems. Justice must be complemented, that is, completed, by love, and in particular by merciful love. The second reason is that if mer­ciful love does not complement the law — if we look to the law alone for salvation — then the law will no longer serve justice. Instead it will serve a warped or isolated aspect of justice which then becomes a grave injustice. Summum ius; summa iniuria. Please remember that phrase for a moment.

That part of law which today we call the moral law is a necessary, but not sufficient, condition of salvation. That is to say, Almighty God requires us to observe the moral law, including its absolute prohibitions, or to repent profoundly if and when we fall. Only His mercy, which He offers readily if we will but repent, can save us from the consequences of our moral failings. Nevertheless, keeping the moral law is not enough for salvation. We are led beyond the law, by the power of Christ given in faith, through merciful love into the Covenant of love with God, which becomes resurrected life. It is love precisely as God loves, and not some debased or merely sentimental notion of love. This life in Christ is our salvation.

Although the role of law in this scheme may be humble, it is essential. When we say that God is holy, we are saying in part that He is essentially moral. Nothing that offends against morality can cohabit with Him. We who have of­fended must be remade through repentance and His forgiveness, a forgiveness that is an expression of His power as Creator because in His mercy towards us He literally remakes us. If we are not remade, if we do not become “new creatures” beginning in this life, we can have no part with Him in everlasting life, because He is holy, that is, quintessentially moral. For example, God who is truth itself, cannot live eternally with a liar. If we have been liars, then we must repent and allow the merciful God to remake us, or it is simply the case that He can have no part with us in eter­nity. Hell is not an arbitrary punishment. It is a necessary state for those who cannot live with God. All this means that the law is very important indeed, but it is also subordinate to what is even greater in God — His truth and love — since it is through merciful love and not the law that He saves us.

The relationship of law to salvation is like the relation­ship of our skeletons to the rest of our bodies. It is not our skeletons that make us the living human beings we are; but, without our skeletons, we would not be much either.

Our Lord, far more effectively than I, made this cri­tique of law in the Sermon on the Mount. For our day, we need to take from that critique the important affirmation that the law cannot save us; for, it has been my observation for the last couple of decades that there is a growing illusion in this country that the law indeed can save us. The results of this illusion are causes, movements, and legal activism of all kinds that promise what they cannot deliver. The energy they absorb should be spent elsewhere.

But if all there were to this illusory quest were the failure to complete the law by seeking merciful love from God and practicing it in our turn, then it would be less harm­ful to innocent bystanders — the rest of us — than it is now. Unfortunately, the second reason why the law cannot save us now comes into play. Something insidious creeps into any and every human attempt to seek salvation in the law. The law as a whole becomes deflected from the quest for true justice into some special pleading that becomes a grave in­justice, thereby undermining the law itself.

The problem is well summed up in the Latin adage which I asked you to remember a moment ago: summum ius, summa iniuria. It is the title of this sermon. I translate the adage as follows: the highest law can become the gravest in­jury, or, defense of the most important right can become the greatest injustice. But Latin is lapidary, and it is possible that even these expanded translations do not capture the pro­found point of the adage. It means that the law itself can become the locus of the gravest injustice, and that it can become so in the name of justice itself. That is why we must never seek salvation in the law alone, but in the merciful love of God, an exigent love which is more demanding than the law and quintessentially moral. If the law is to do its humble job, then it must promote true justice; it must not through distortion promote injustice. Although it is true that the law cannot save us, it should promote our salvation, not lead us to damnation. The corruption of law, when law becomes the home of injustice, is terrible indeed.

One of the ways Our Lord taught this truth in the Ser­mon on the Mount was the example He made of the lex talionis, or the principle of an eye for an eye and a tooth for a tooth. This provision of the Torah, of Jewish law, original­ly was all to the good. It helped bring about justice by re­quiring that the punishment fit the crime, thereby restraining our all too human and unjust desire for vengeance. But by the time Our Lord walked the earth with us, this provision of the law had come to be used differently. It had come to be used to demand punishment when mercy was called for. Although not a Biblical scholar, Shakespeare expressed the point of the Sermon on the Mount very well in his play, The Merchant of Venice. Portia, in her famous argument for the defense, spoke of the quality of mercy and showed clearly how a contract much like the lex talionis could cease to pro­mote justice and instead become simply an instrument of vengeance. Yet Portia never abandoned justice as a sen­timentalist might who thinks that injustice will bring us more surely to mercy. Not at all. Shylock could have his pound of flesh which he had contracted for, if when he claimed the flesh he could make sure that he did not spill a drop of blood. Of course that was impossible, and strict justice, as it always does, opened the doors to mercy. Thus Shakespeare showed that he understood what Our Lord was up to in the Sermon on the Mount.

In his great encyclical, Dives in Misericordia, Pope John Paul II explains as follows why Our Lord castigated the lex talionis in the Sermon on the Mount:

This (the lex talionis) was the form of distortion of justice at that time (when Our Lord walked the earth with us); and today’s forms continue to be modeled on it. It is obvious, in fact, that in the name of an alleged justice (for example, historical justice or class justice) the neighbor is sometimes destroyed, killed, deprived of liberty or stripped of fundamental human rights.

The pattern is simple. In the name of a right or of justice in general, what a Shylock, or a particular group, or class, or even a whole sex perceive to be their summum ius, becomes the occasion for committing the gravest injustices. And this is often embodied in the law through the interpretations of the courts, or the work of legislators, or even by revolution. Surely a group as intelligent as this congregation can apply the Holy Father’s explanation to a great number of prob­lems in our country and in the world today. Do the alleged rights of privacy, property, women or anyone else, give us the right to kill innocent human life, undermine the family, and discourage faith in God? Or, are these latter always in­justices?

Pope John Paul II, in his words about the distortion of justice which I just quoted, had first in his mind what is the most awful and most evil form of the distortion of justice in our day, namely, Marxism-Leninism. In the name of justice, in particular of social justice (and thereby in the name of a summum ius), the so-called party of the people may enslave and kill, may imprison and terrorize, may despoil, subjugate, and propagandize, and above all, may persecute the faithful in Christ. How many of our brothers and sisters have suffered under the tyranny of this evil ideology? It is truly the prime example of the distortion of justice in our day, and it goes on in the Baltic and the Balkans, in Eastern Europe and the Soviet Union, in China and Southeast Asia, in Cuba and elsewhere. The persecution of the faithful under Marxism-Leninism in the name of justice is far more severe than it was under the ancient Roman empire. The present Holy Father knows this first hand.

In that encyclical On the Mercy of God, the pope brought up to date Our Lord’s critique of law set forth in the Sermon on the Mount. He detailed the failures of this cen­tury’s intense search for justice, which in many cases, such as Marxism-Leninism, has been an illusory search for salva­tion through law. But I would like to let the pope speak in his own words, so I shall quote him now at length:

The experience of the past and of our own time demonstrates that justice alone is not enough, that it can even lead to the negation and destruc­tion of itself, if that deeper power, which is love, is not allowed to shape human life in its various dimensions. It has been precisely historical ex­perience that, among other things, has led to the formulation of the saying: summum ius, summa iniuria. This statement does not detract from the value of justice and does not minimize the significance of the order that is based upon it; it only indicates, under another aspect, the need to draw from the powers of the spirit which condi­tion the very order of justice, powers which are still more profound. 

The Church, having before her eyes the pic­ture of the generation to which we belong, shares the uneasiness of so many of the people of our time. Moreover, one cannot fail to be worried by the decline of many fundamental values, which constitute an unquestionable good not only for Christian morality but simply for human morality, for moral culture: these values include respect for human life from the moment of conception, respect for marriage in its indissoluble unity, and respect for the stability of the family. Moral per­missiveness strikes especially at the most sensitive sphere of life and society. Hand in hand with this go the crisis of truth in human relationships, lack of responsibility for what one says, the purely utilitarian relationship between individual and in­dividual, the loss of a sense of the authentic com­mon good and the ease with which the good is alienated. Finally, there is the “desacralization” that often turns into “dehumanization”: the in­dividual and the society for whom nothing is “sacred” suffer moral decay, in spite of ap­pearances.

What do these words from the Holy Father mean for us Americans in general and in particular for lawyers in Chicago, Illinois? In a moment I will list some questions that challenge us, especially lawyers, to a renewed and redou­bled fight for morality and God’s truth. Our answers certain­ly accuse many in our society — maybe even some of us. — and thereby invite us to repentance, conversion and reform. What are these questions? I will now ask them.

Is it not the fundamental duty of the law to protect inno­cent human life? Does our law protect innocent human life? Or, has the alleged summum ius, the alleged highest right of some, led to the gravest injury or injustice — not just to millions of aborted babies, but to the law and the whole of society itself? Will our very culture be drowned in this in­justice, which is an ocean of innocent blood?

Does our law promote family life and the indissoluble unity of marriage? Or, in the name of alleged higher rights, does our law promote the dissolution of the basic unit of society, the family, with all the grave injury to individuals and civilization as a whole that such dissolution brings with it? Will our country long survive this grave wound to its health, the loss of strong families?

Does our law promote moral culture? Or does it in the name of alleged personal liberties, which are supposed to be among the highest rights, actually promote debauchery through the slimiest of businesses: prostitution and por­nography? Do you know the injuries, the injustices, par­ticularly to the defenseless young, that this putrid business brings about? Do you think God will long smile on a country that protects and promotes this wretched activity in the name of the law?

Does the law of this land help us to fulfill that overarch­ing moral obligation which the Second Vatican Council enunciated so clearly: “All men are bound to seek the truth, especially in what concerns God and his Church, and to em­brace it and hold on to it as they come to know it”? Or, does our law put obstacles in the way, particularly of the young, who must strive freely to fulfill this obligation? If you have spent the years in education that I have, you know that legally enforced patterns of education put almost insurmountable obstacles in the way of the pursuit of God’s truth. In the name of an alleged summum ius, the gravest injustices are done. Publicly funded education, including publicly regulated private education, promotes the very false religion of secularism, and that is a grave injustice.

Most certainly in our day, the practice of law is an apostolic challenge. I hope that these words have sharpened your good sense of that challenge. I assure you of my prayers as you strive to meet that challenge. And let us all pray that the answers to the questions I have raised will be better in the near future, not only for the sake of those, such as the unborn, who die because of the summa iniuria, but also for the sake of our country as a whole, and for our own sakes. God bless you.

By

Rev. Richard Roach was a Jesuit and teacher of moral theology at Marquette University.

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