Roman marble bust of Aristotle,2nd c. CE, Palazzo Altemps, Rome (Image in public domain)
By Walter Borden, M.D. –
“At his best, man is the noblest of all animals; separated from law and justice he is the worst.”
—Aristotle (Politics 1.2.1253a31-37)
I. History of Justice
Aristotle speaks of law and justice. Law means written statutory, legal code. Whereas justice embodies a wider and deeper meaning, encompassing social-humane values meant to maintain peaceful order, to enable and facilitate humans living together in a community. This is an important distinction to keep in mind as too often the word Justice is used as if it were solely statutory written law. History is a lens that cuts through the current political fog and sheds light on the integrity of Justice as envisioned by the founders of our democracy, Madison, Adams, Hamilton, Jefferson et al. (see Thomas E. Ricks, First Principles, Harper Collins Publishers, New York, 2020). They studied the history of republics going back to antiquity.
In ancient Greece the hunger for order culminated in Solon’s establishment of a new concept of law which we call democratic justice, based on a constitution and legal code.(see John Lewis, Solon the Thinker, Bloomsbury Publishing, 2006) The rule of law encompassing humane values was the foundation.
The Athenian legal system served as a frame of reference for the codification of Roman law. Cicero was a Roman philosopher, statesman, lawyer, orator, and political scientist. He had absorbed the Greek legal system while living and researching in Athens. He returned to Rome and transfused the Roman codes with Athenian humane values. He created the term “Humanitas”. (Cicero: De Legibus. Thomas L. Pangle, translation. Princeton, N.J.: The Witherspoon Institute. 2011):
“Now let us see the principles of justice. The most learned men have been pleased to begin with law, which is correct if it is defined in the way they do: law is the supreme reason inherent in nature, which commands those things which ought to be done and prohibits the contrary. This same reason, when it is confirmed and completed in the human mind, is law. And so they judge that law is prudence, whose strength is to command what it is right to do and forbid wrongdoing. . . . So, if this is correctly said, as it usually seems to me for the most part, then the beginning of justice is from law, which is a force of nature, the mind and reasoning of the prudent, the standard of justice and injustice. But since this whole speech of ours now is directed to the reasoning of the populace, it will be necessary to speak popularly, and to name “law” as the vulgar do: that which is written and which decrees what it wishes, either commanding or prohibiting. But in constituting justice in truth let us take the beginning from that supreme law which was born before all the centuries and before any written law or any city was constituted.”
The earliest forms of written justice were called Revenge Justice, as in the Law Code of Hammurabi, based on retaliation or the vendettas the Greek Furies (Erinyes) pursued as blood avengers. The old principle of lex talionis (Latin,”law of equal”) and the Judaic idea of “an eye for eye” are forms of this retaliatory justice. Revenge is a primitive passion reflecting our savage pre-civilization origins. To give an appreciation for the endurance of revenge we have only to look at a Supreme Court justice in the 19th century. The rationale for revenge justice was expressed by no less than Oliver Wendel Holmes. In 1881 in The Common Law 46 he wrote, “It may be said, not only that the law does, but that it ought to make the gratification of revenge an object. The first requirement of a solid body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself and thus avoid the greater evil of private retribution.” Holmes was under the influence of Social Darwinism, a then popular ideology, an ideology later exploited by Hitler. Holmes could not foresee how Darwin’s words could be manipulated. The point is Holmes did not have the knowledge and or expertise to understand the darker side of human nature and how Social Darwinism could be twisted. He had gone beyond sound judicial function. This is a good example of judicial blindness and hubris.
In the 6th-7th centuries BCE, on the coast of Asia Minor, then part of the Greek world, emerged two original thinkers that changed the course of history to this day. They set in motion the evolution of justice and science, a development that conflicted with revenge as the central purpose of Justice.
Thales and Anaximander two natural philosophers challenged mysticism, mythology, belief in the gods. They proposed the only way to understand the world was through a rational process of observation and critical reasoning, (see Anaximander and the birth of science, by Carlo Rovelli translated by Marion Lignana Rosenberg, Riverhead Books, New York 2023). They said that mythology were fictions created to explain the unknown, and the only path to realistic understanding was through observation and applied logic, what we now call deductive reasoning or scientific thinking.
Across the Aegean sea there was a socio-political revolution that resonated with that of Anaximander and Thales. As the Olympian family lost its religious influence, for some in the 6th century BCE this power became nature and natural law, science. To others it became human law, Justice. Solon became the first political scientist. He perceived social disparities, greed, and hubris of rulers as the source of civil unrest and the hunger for order. Solon established a power sharing constitution and legal code, in the latter a cognition of extenuating circumstances and a hoped-for unbiased jury. The central and sustaining principles were the rule of law and humanism. Government was restructured to grow the middle class, redistribute power and encourage humane values.
At the same time another cultural leap served to strengthen this new form of governing that came to be called democratic justice. One hundred years after Solon, the Tragedian Aeschylus, amidst a political challenge to democracy wrote The Oresteia, a powerful work that has been called a dramatic metaphor of the evolution of revenge justice to democratic justice. (see Aeschylus, The Oresteia, Penguin Classics, translated by Robert Fagles).
Since that time, while scientific thinking has evolved and accepted as the norm, there has always remained an underlying pull to magical thinking to explain away the anguish of human ills. And from time to time the mystical pull, clouded in legalese, surfaces in a legal court, challenging Science.
Our Founding Fathers looked to the history of Justice in writing our Constitution. They incorporated Solon, Cicero, etc. (First Principles, Thomas R Hicks, Harper Collins,2020. HarperCollins,2020) into our Constitution, including a tripartite government, an adversarial trial process (prosecution vs. defense), and the right to appeal.
II. Justice and Politics
Justice serves as a political flag for many tribes in our culture. To some, it is the words of the Constitution as originally written without consideration of the context or changing circumstances. The most recent champion of Constitutional “Originalism”, the late US Supreme Court Justice Anton Scalia wrote “When a case comes to me, I don’t do whatever I feel like doing, I have a standard. That standard is what would the people at the time of Constitution was enacted have said.”
And yet one of those “originalists”, Thomas Jefferson no less, wrote “Some men look at constitutions with sanctimonious reverence, and deem them, like the arc of the covenant, too sacred to be touched. … We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain under the regimen of their barbarous ancestors”.
Humane civilization needs humane Justice, and Justice needs both Science and Law working in concert. Law provides the necessary guidelines to control the potential harm of scientific advances. Example: atomic energy. But working in concert requires mutual respect. Therein lies the rub.
There is a long history of conflict between Law and Science. The warriors for rationality and their battleground cases resound through modern history. Galileo, in 1428 was prosecuted by the Inquisition for defending Copernicus’ observation that the earth revolves around the sun rather than theocracy’s earth being the center. Johan Weyer confronted the law in 1557-1660 (see Opera Omnia) maintaining confessions of witches were the result of mental illness brought on by torture and horrible living conditions. Weyer was later recognized as contributing to the development of modern psychiatry.
The conflict between Law and Science is still with us. Thomas Jefferson and John Adams differed as they wrote our Constitution. Adams was influenced by John Locke and adopted the Lockean doctrine that although all power derived from “the people.— despotism or unlimited sovereignty or absolute power is the same in a popular assembly, an oligarchy as in an Emperor.” This became Adam’s “creed “. He opposed the Jeffersonian ideology that made “the people” infallible, a mystical medieval theology. This difference in perspective about Law and Justice between Adams and Jefferson is an ongoing replay of an age-old conflict between the proponents of statutory law and natural, or moral law. That age-old conflict between the proponents of statutory law and natural, or moral law goes on.
More recent cases, Daubert vs. Merrell Dow, 1993 established the court as gatekeeper of accepting science as based on relevance and reliability, and Jacobsen vs. Massachusetts. balancing public health v. rights, requiring mandatory vaccination. Gatekeeper means establishing standards for adversaries.
What does this have to do with our Supreme Court? Do the supreme court members have the knowledge and experience to make decisions that are relevant and credible about abortion? Do state legislators have such knowledge? Medical thinking and Law thinking are different. Law is finite, even considering that the beauty of statutory language may be found in the eye of the beholder. More to the point is the fact that the Supreme Court in Daubert established the role of the courts in scientific matters is to act as gatekeeper to the admission of scientific evidence, not as an actual participant in the adversarial process.
By overturning ROE, our current U. S. Supreme Court majority has put their thumb on one side of the scale of Justice. In this and other decisions, they have relinquished their role as collective gatekeeper to enter as active participant in the fray on many occasions of partisanship. The fallout has resulted in an unacceptable threat to basic healthcare for many women and other clearly partisan decisions that harm the balance of democracy. Overturning Roe is a good example of how Law was blinded by hubris, ideology, politics and a healthy dose of ignorance. This Supreme Court has deprived basic rights of bodily sovereignty and deprived many women of health care. The Supreme Court practiced Law, but not Justice. Punting the issue to the states is no answer. Legislators are not doctors either. And the medical doctor takes the Hippocratic oath before licensure. That oath states “do no harm”. Harm can include not providing needed treatment. The Dodds decision puts the doctor in the position of having to choose between his medical oath, “do no harm,” and the law.
Our recent Supreme Court in the Dobbs Decision 2022 was an act of hubris and misogyny, and for those on the Court who claim the title “originalists/textualists”, an expression of what Jefferson called hypocritical. Alexander Hamilton said it best, “As in Religion, the word kills, the spirit gives life.”
Solon, Cicero, Galileo, John and Abigail Adams, Thomas Jefferson, James Madison, George Washington, Abraham Lincoln, John Marshall, to name but a few, are spinning in their graves.
The anti-scientific, anti-intellectual, wave, the modern form of mysticism, has engulfed our democracy. An effective democracy with effective democratic justice requires an educated, enlightened population willing to consider both sides of an argument before implementing policy and admit its mistakes without reactionary pendulum swings that negate balance. Our education systems have failed large swaths of our population, vulnerable to a fog of distracting “bread and circus” entertainments including the populist heroization of sports figures. This results in little if any attempt to educate for critical thinking, healthy skepticism, and a common sense fueled by morality. That underpinning common sense morality is the force of nature in human nature long before written language existed. No wonder we now experience the thriving of cults, mysticism and endless “conspiracy theories”.
Walter Borden, M.D. is a Distinguished Life Fellow, American Psychiatric Association Diplomate, American Board of Psychiatry And Neurology, Diplomate, American Board of Forensic Psychiatry