Justice and the Band of Robbers

In the early nineteenth century, the United States was seeking to establish a reliable system of property ownership. This was particularly difficult, given that much land was still inhabited by native Indian tribes, and these tribes attempted to give land grants that often conflicted with grants given by the United States government. An 1823 Supreme Court case called Johnson v. M’Intosh involved such a conflict, and the case was in part resolved by the American adoption of a longstanding European principle: that “discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest”. That is, a nation may claim land as its own when that nation has either discovered that land or conquered its peoples.

Such a principle raises important questions as to the nature of society and the role of law. Is the foundation of society conquest over the weak? Is the law simply the will of the men with the biggest guns? Such questions also raise important concerns for lawyers, especially those lawyers concerned with promoting such things as “the common good” and “service” and “justice.” For if law is nothing more than the will of the men with the guns, then the role of the lawyer is to be the intellectual prostitute to the band of robbers.

American history gives a more complex story, however. As it turns out, the law may not only be the will of the men with the guns. It may also be the will of the men who went to jail. And if such men have been honest, then the law may be something different altogether.

Such a difference has been articulated by this country’s most prominent civil rights leader. While in the Birmingham City jail, Martin Luther King, Jr. sought to push the philosophical limits of the American legal system by making such radical claims as “one has a moral responsibility to obey unjust laws” and “an unjust law is no law at all.” The latter claim predates American, and even European, society, first articulated by St. Augustine at the end of the fourth century.

King suggests that America is not even its own ruler. A society cannot create laws simply at its choosing. Some laws, those which are unjust, simply have no binding substance. Societies do not have complete autonomy in choosing what to do. Rather, as King claims, “Society must protect the robbed and punish the robber.”

Such claims do not carry much weight on their own. Implicit in King’s moral anthropology is the principle that man is not his own autonomous ruler. Rather, something stands external to him, which demands his allegiance and adherence. Man can only be free when he submits himself to a Good which is external to himself. The individual conscience can only flourish when it looks to something beyond the individual, when it looks to this Good and obeys it.

When conscience loses this gaze, it loses itself. As John Paul II has said, “Once the idea of a universal truth about the good, knowable by human reason, is lost, inevitably the notion of conscience also changes.” Without such a gaze, King’s words are mere form without substance. Without such a gaze, King’s work cannot continue and will have already been abandoned.

Thus, King not only fought oppression; perhaps the greater enemy was and has become skepticism. The greatest enemies are the ideas that Justice is subjective and that it is unknowable. For if man cannot turn to a good external to himself, if he cannot discern that an unchanging and knowable Justice creates demands that must be followed, then man has no tools or methods of determining which laws are “unjust” and to be disobeyed. If Justice is unknowable, then King was wrong. If Justice is only subjective and the individual is only accountable to himself, then King was wrong. And the lawyer or citizen who has made such claims has already defied him.

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