The Failure of Law: Why Justice is Disappearing in the West

By Dr. Jeff Mirus ( bio - articles - email ) | Dec 03, 2013

I am not the first to observe that we live in an ideological age. One great reason for this is our apparent inability to believe in anything deeper or more secure. But this creates insurmountable problems for the rule of law, and for principled jurisprudence. For if “principles” can be drawn only from (constantly shifting) ideology, then all those who do not share the reigning ideology will rightly perceive both law and court judgments to be essentially capricious, failing to meet any possible standard for the service of the common good.

To frame this problem in the broadest possible terms, we can observe that different cultures have generally anchored their formal law and jurisprudence in different “bedrocks”, usually some combination of religion, tradition, and the natural law. The advantage of these “bedrocks” is, first, that they enshrine considerable truth about the human person and the human community and, second, that they provide a necessary stability to the “rules” by which human communities are governed. The establishment of a written constitution is another, though quite different, way of imposing at least limited stability on law.

Religion as a bedrock, including a widely-accepted revelation, is common and probably essential, but far less than ideal on its own. If the revelation or wisdom of the religion is essentially fictional, it may contain very little truth; and in any case theocracy is always problematic, as it insists on governing all citizens on the basis of principles which can be apprehended only by those who possess the requisite faith. This is actually one difficulty ideology has in claiming, with far less justification, a sort of governing power. But it can at least be supposed that the major religions, having sustained broad peoples over immense periods of time, contain considerable truth about the human condition. Thus religion, which is always rooted in an apprehension of the permanence of God, is one of those bedrocks that is likely to bring a certain stability and predictability—and at least some measure of fairness—to the problems of law.

The case for tradition as a juridical “bedrock” is that it expresses the common life of a people, their ideas and practices and ways of arranging things , their identity as embodied in tested and workable values, the roles of various proven institutions, and the common social understanding about how people should organize themselves, hold property, and otherwise interact with each other. Traditional cultures often have huge blind spots, to be sure, but once again we can see that tradition provides a kind of juridical “bedrock” which imparts a significant stability, predictability and fairness to law and judgment.

The value of the natural law will be self-evident to most of my readers, though hardly evident at all to the larger society in which we live. The natural law is the Creator’s expression, through natural things, of His purposes and ends. It is, if you will, that aspect of the Creator’s presence which can be ascertained through reason and intuition as the human person confronts himself and the natural world which surrounds him. A study of this natural law bears rich fruit (as the Greeks and Romans bore witness long before the coming of Christ) in understanding the nature of man and of human communities, their purposes, and the requirements of justice in human relationships. Though always imperfectly grasped, this too can provide a “bedrock”, imparting stability, predictability and, above all, fairness to legal issues.

As for written constitutions, they clearly grow out of a tradition that is rich in law but they arise also among peoples who actually conceive of creating their own government from scratch, which is by no means the norm in human affairs. Constitutions will contain some of the strengths of the traditions out of which they grow, and they typically require substantial majorities to make changes in the matters covered in the constitution itself. This provides a measure of both wisdom and stability. But a constitution without a sustaining culture is a fairly weak mechanism. It proclaims itself as a human artifact, and when cultural values shift dramatically, there is no compelling rationale for preferring a constitutional snapshot of the conception of the “founders” at a particular point in time to what anybody else may think under different circumstances.

Crumbling Bedrock

In any case, we must ask what fate will befall a culture without any of these “bedrocks”? I am thinking of a culture which rejects the idea of God and Revelation; which at the same time abandons the very notion of immutable purposes and ends on which the natural law depends; which further sees man as a kind of accident, with the only possible “meaning” (always in quotes) being whatever feelings of happiness we can acquire through our autonomous shaping of our own identities and goals; which accordingly rejects tradition as the benighted fantasy of an ignorant age; and which therefore knows no basis for law and judgment apart from whatever attitudes and values happen to be adopted at any given time by those who are most popular (or most fashionable) within the contemporary human community.

I am, obviously, thinking of Western culture. Clearly, mainstream Western culture no longer possesses very much that can impart stability, predictability or fairness to law. This is why, in the United States and elsewhere, we have seen law and jurisprudence so rapidly unravel over the past few generations, reflecting far more the fashionable opinions of judges and legislators than the revelations, traditions, philosophies or even the constitutions from which laws and judgments are supposed to derive their legitimacy—and from which those who believe in something outside themselves very naturally seek relief. But quite apart from constructing something, can we even gather these sticks to make a fire for purposes of warmth and light? They are, I fear, too thin on the ground.

So as we face new challenges to values which once seemed absolutely foundational, what are we to conclude? First, the common thread among the “bedrocks” is that successful legal cultures depend deeply on the permanent things, on religion flowering into tradition and prompting the deepest possible reflection on our nature, purposes and ends. Second, this dependence is mediated through culture, which must be healed and strengthened before politics can be successful. And third, while we may very occasionally pass a better law or win a court ruling, we should not be misled: We delude ourselves if we any longer expect justice from Western lawmakers and Western courts.