What is Justice 1
David Opderbeck is Professor of Law at Seton Hall University Law School. In this series, David reflects on Nicholas Wolterstorff’s most recent book, Justice in Love (Emory University Studies in Law and Religion).
Nicholas Wolterstorff is a leading Christian philosophical theologian who combines his intellectual erudition with a warm evangelical faith. Recently he published an important two-part series of books on the theme of “Justice” — Justice: Rights and Wrongs and Justice in Love. Although both books touch on some difficult philosophical and theological themes, they are readily accessible to anyone. If you’re involved in justice ministries, legal or law enforcement work, government or military service, or are otherwise interested in the theme of justice, these are books you should read.
Here are some opening questions: Why two fat books on “justice?” Don’t we already know what “justice” means? What do you think comprises “justice?” Do human beings have inherent “rights”? Is a concept of “rights” required for a concept of “justice?”
“Justice” and “rights,” in fact, are slippery concepts. Western liberal theories of justice and rights, after the rise of modernity, generally attempt to avoid reference to God or any other transcendent source of rights and justice. John Rawls’ highly influential approach, for example, is rooted in social contractarian ideas. For Rawls, “justice” requires that each individual give to others what she would desire for herself, if all individuals were ignorant of any other person’s desires. Other theories, such as the “capacities” approach of Martha Nussbaum and Amartya Sen, conceive of “justice” as what is necessary to maximize the innate capabilities of each person in a way that supports human flourishing. Each of these theories, and others like them, focus only on human or “natural” factors.
Christian theology, of course, must think beyond the human to the divine. But how do notions of “justice” and “rights” fit into a Christian theistic framework?
In Roman Catholic theology, “justice” is woven into the “natural law,” which is to some degree accessible to all human beings through the exercise of natural reason. For Thomas Aquinas, the great medieval theologian, natural law served as a précis to the fuller understanding of truth and the virtues that could be acquired only through faith. Following Aristotle, Thomas’ ethical theory is a eudemonistic one – it posits an ideal “good life,” a life in which the vision of God is the ultimate good, and develops virtues and practices required to attain the good life. Although Thomas considered faith necessary for a fully virtuous live, he believed ordinary human reason could grasp the basic principles of justice.
Wolterstorff argues that eudemonistic theories of ethics fail to supply a stable basis for “rights” and “justice” because they fail to offer an account of inherent human worth. (JR&W at p. 179). The “life-goods” of eudemonism, he says, are activities “each of us must choose … with the goal in mind of enhancing one’s own happiness.” Wolterstorff suggests that, “[t]here is no room in this scheme for the worth of persons and human beings, and hence none for one’s right against others to their treating one a certain way on account of one’s worth.” (JR&W at p. 179). This argument against eudemonism is interesting because it turns the usual Protestant / Reformed argument against eudemonism on its head by suggesting that eudemonism is not “humanistic” enough.
Thomistic natural law theory – or at least a version of it – was subject to severe attack during the Protestant Reformation. Martin Luther, in particular, famously battled with Thomist scholars of his day over the relationship between nature and grace. This basic question of theological anthropology – to what extent, if at all, can human beings know and do good through natural reason, and what is the necessary role of God’s grace – remains a fundamental question for any Christian theory of justice.
For some strands of Protestant Christian theology, following Luther and to some extent John Calvin, the notion of “human rights” is eyed suspiciously or flatly rejected. If God’s sovereignty is such that he “can do whatever he wants,” then human beings have no inherent “rights.” For Reformed thinkers in this vein, the only real basis for “justice” and “rights” is God’s divine command. The Decalogue provides us with the blueprint for God’s law, which we are bound to obey, and that law gives people obligations to each other, with corresponding rights. For example, the command not to steal (Exodus 20:15) supports a right against other people to personal property. But these are not “natural” rights that inhere in persons apart from God’s commands.
One problem with this kind of divine command ethic is that it raises the specter of arbitrariness. Is theft wrong merely because God says so? Could God then change the command and at some point declare theft to be lawful and “good?” On the other hand, is there a standard of “good” to which even God must adhere, suggesting that there is something greater than God? Most divine command theorists avoid this problem by noting that God Himself is the perfection of good in His being, so that His commands, which are always consistent with His own being, are neither arbitrary nor indebted to a standard above His own being.
Wolterstorff, however, argues that divine command theories fail because they rest on an analogy to human commands. We know what a “moral command” looks like because we as human beings issue such commands to each other. But if human beings can issue moral commands to each other, Wolterstorff says, then the standard for morality can be at least in part a human one, which does not rest on God’s commands as divine command theory requires.
Further, Wolterstorff argues that divine command theories fail because all such theories rest on an inherent moral obligation to obey God’s commands, even prior to any specific command from God (JR&W, at p. 275-76). The reason we are morally obliged to obey God’s commands cannot itself arise from one of God’s commands, or else we become stuck in an infinite regress. We must be morally obliged to obey God’s commands because of something inherent in the God-human relation that precedes the divine commands.
In other important strands of Reformed thought, the imago Dei, combined with a theology of “common grace” supports a concept of natural human rights. This seems to be the approach taken by many contemporary protestants who cite Abraham Kuyper as an influence. But it remains difficult to understand exactly what about the imago Dei grounds a universal concept of rights. Is it a set of human capacities that arise from the imago? If so, what about people who have not yet developed all their capacities (infants) or who have lost them (mentally incapacitated adults)?
Wolterstorff argues that “rights” and “justice” cannot derive from eudemonism, divine commands or the imago Dei alone. Rather, he says, “human rights” flow primarily from the fact that every human being is loved by God and is thereby a “friend” of God (Wolterstorff calls this the “love of attachment”). The imago is itself the fruit of that love: God wishes to relate to us and he desires us to share in His creative life, which is what the imago makes possible. The fact that God loves us and wishes to relate in friendship to us endows each one of us with inherent dignity. We each have rights in relation to each other because each one of us is loved by God. As Wolterstorff summarizes his position in Justice: Rights and Wrongs:
I conclude that if God loves a human being with the love of attachment, then that love bestows great worth on that human being; other creatures, if they knew about that love, would be envious. And I conclude that if God loves, in the mode of attachment, each and every human being equally and permanently, then natural human rights inhere in the worth bestowed on human beings by that love. Natural human rights are what respect for that worth requires. (JR&W, at p. 360).
This notion that “each and every human being” is loved “equally and permanently” by God obviously appears to conflict with some important passages in scripture, notably in Romans 9, particularly when read through an Augustinian / Reformed theology of Divine election. If God “loved” Jacob and “hated” Esau (Rom. 9:13), and if God shapes vessels for different purposes, as the potter shapes the clay (Rom. 9:19-21), is it possible to say that God loves “each and every human being equally and permanently?” Wolterstorff devotes an entire chapter to this problem in Justice in Love, which I will leave for another post. In short, Wolterstorff interprets Romans through the lens of both Karl Barth’s theology of election and the New Perspective on Paul, and argues that Paul is not addressing the question of individual salvation and individual election that occupied the Reformers in their reading of Romans.
In sum, Wolterstorff’s central argument is that “justice” and “human rights” are substantive concepts rooted in the love of God for each and every human being. Because we are each created to share in God’s own life and are loved by Him, we owe to each other the dignity due to creatures loved in this unique way by God, and have corresponding rights with respect to each other.
What do you think of Wolterstorff’s arguments against eudemonism, the imago Dei as a basis for rights, and divine command ethics? Is he correct to locate inherent human dignity in God’s “love of attachment” to us?