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KITSAP COUNTY LAW CELEBRATION KEYNOTE SPEECH, 5/7/2010
PORT ORCHARD
Charlie Wiggins
Law is a noun, justice is a verb. I repeat, law is a noun, justice is a verb. That’s my message to you on this law day. We should know the law, we should respect the law, we should apply the law. But we do justice.
Not many years ago, a man sat and observed the proceedings in a trial courts, not in this state, but in another. Disturbed by his observations, he waited until a recess and sought out the judge in his chambers. “Your decisions did not seem to do justice,” he said to the judge. “Justice?”, replied the judge. “You want justice? This is a court of law, not a court of justice.”
This story disturbs us because we want the law accomplish what we perceive as justice. After all, we speak of our courts as courts of justice. Indeed, the home of our state Supreme Court is the Temple of Justice. Not just an invocation of justice, but a religious invocation—the Temple of Justice. And we refer to the members of our Supreme Court not as judges, but as justices.
We also believe that our country is founded on the notion that everyone should be guaranteed justice. When we pledge allegiance to our nation, we describe it as a land with liberty and justice for all.
I want to discuss today the relationship between law and justice. Was that judge right? Do we have courts of law or courts of justice? Have we misnamed the Temple of Justice, and the judges of our Supreme Court “justices”?
I want to thank the Kitsap County Bar Association and its officers for the privilege of speaking to you today. And I want to thank each of you for being here to celebrate the importance of this day—law day.
Let us focus first on justice. Philosophers have debated the nature of justice for thousands of years. From Plato in ancient Greece to the hugely influential studies of Harvard professor John Rawls, to the multitude of philosophical discussions since Rawls wrote his Theory of Justice in 1971, philosophers have theorized the ideal society and then built up ideas of justice in a theoretical state.
Theologians have defined justice in terms of divine law; what God decrees and wills is by definition justice. Others have seen justice as natural law. it involves the system of consequences which naturally derive from any action or choice. Under this view, justice requires according individuals or groups what they actually deserve, merit, or are entitled to. Justice, on this account, is a universal and absolute concept: laws, principles, religions, etc., are merely attempts to codify that concept, sometimes with results that entirely contradict the true nature of justice.
These abstract concepts of justice describe how society should be structured. This is hugely important because these ideas influence actual decisions in society. For example, do we follow the Rawls theory of justice as equal opportunity, making opportunities open to everyone on an equal basis? Or do we follow a property rights model, considering the status quo of property ownership to be the just distribution of assets?
The philosophers who engage in these philosophical battles are wise and the debates are important, but I must confess that they do not give me much practical help, either as a lawyer or as a judge. Nor do they give me much guidance as a citizen, a father and husband, or as a neighbor. So I believe we should take a different tack and look at justice from a different perspective.
Let us begin with the question of the philosophers—what does an ideal society look like? An ideal society is one in which relationships are in harmony, in which every person and institution recognizes and honors the obligations they owe to everyone else. Let’s make that a bit more concrete. If you are married, or in some other committed relationship, you owe certain obligations or duties to your spouse or significant other. Those duties range from fairly routine—keeping one another advised of your daily schedule and plans—to quite significant—remaining faithful to your spouse or significant other.
You probably drove to this event this morning, and if so, you owed to every person on the road a duty of reasonable care, to abstain from reckless or unlawful driving maneuvers, so as to maintain safety on the road and avoid injuring anyone else. If you are a student, you have a duty to pursue your studies, to do your homework, to study for exams, to complete assignments in a timely fashion. Each of us has a duty to refrain from criminal activity, from taking property that doesn’t belong to us, from assaulting others, and from dozens of other crimes.
We live and move in this web of duties and obligations owed to a variety of different people. And others owe duties to us. Just as I have a duty to remain faithful to my spouse, she owes me a duty to remain faithful as well. Just as you owe a duty to other drivers on the road to drive safely, so they owe you the same duty. And if you are a student, your teachers owe duties to you, to teach you, guide you, test you and grade you.
In addition to these horizontal duties owed among people, there are vertical duties running between citizens and the overlapping governments under which they live. We have civic duties, to vote responsibly, to pay taxes, to obey the laws. And our diverse levels of government have duties to us—to protect us from crime and warfare, to educate our children, to provide decent transportation systems, and to create an environment in which we can flourish and prosper.
When we fulfill our obligations to others, and others fulfill their obligations to us, our relationships are in harmony. But when there is a breach of those obligations, relationships are broken or damaged.
That brings us to justice. Justice is the process of restoring right relationship, of bringing the relationship back into harmony. That is what I mean when I say that justice a verb. It is the dynamic process of restoring right relationship.
This may simply call for an apology, an admission of wrong and a request to return to right relationship. In our closest and dearest relationships, an apology is often sufficient to restore the relationship. If I neglect to tell my wife I’ll be home late from work, an apology is usually enough. Even in a more impersonal or business-like relationship, an apology may satisfy the wronged party. Or correcting the imbalance may demand some compensation or restitution by the wrongdoer. If I break something at home, a replacement might be in order, and perhaps a card or flowers or some small gift. In the case of a tort, we look to monetary compensation as the way to restore the relationship. With criminal conduct, we usually require more, a jail or prison term, perhaps coupled with a fine and an order of restitution.
Now we begin to see the connection between law and justice. The law defines duties and the law defines what is needed to restore right relationship. Law is a noun. While the law is definitional, justice is dynamic. Justice is the process of translating laws into action in this complex business of living in society. Justice is a verb.
The statutory law is only one source of duty. Our state and federal constitutions, those master blueprints for our relationships, impose many duties on government as well as on the governed. We also look to tradition and to the common law, the great body of judge-made law that has taken root, branched out, and spread through centuries of Anglo-American jurisprudence. We also look to our religious heritage, the great faith traditions that underlie our social system and inform our conscience. And humans being creative and ever inventive, we make up our own rules as we go along. We make agreements and contracts, and those agreements impose duties upon us. Much of this is quite gradual and sometimes even subconscious, as we settle into routines and expectations of one another without even discussing them.
These different sources may impose conflicting duties upon us. To take an obvious example, the U.S. Supreme Court has interpreted the constitution to prohibit the states from outlawing abortion during the early stages of pregnancy, which conflicts with the religious beliefs of some. In that situation, the law has imposed a hierarchy—the constitution is supreme, followed by statutory law, followed by the common law.
To summarize: relationships are in balance when all parties are performing their obligations; when those relationships are breached, justice consists of restoring balance and harmony to the relationship. Duties in relationship originate in a variety of sources—constitutional law, statutory law, common law, religious beliefs, custom and tradition, and consensual undertakings through contract or agreement.
Having said all this, have we really accomplished anything? Isn’t it obvious that the law imposes duties and obligations? And does it really tell us anything?
I think the analysis is helpful because it focuses our attention on what really matters, which is relationships and restoring broken relationships. Instead of thinking of justice as some abstraction—Plato’s city ruled by philosopher kings, or a set of fairness principles, or a philosophy based on property rights—we should be thinking about relationships. Our goal in seeking justice should be to re-order relationships so that they will be back in balance and harmony.
For example, take the dissolution of a long-term marriage. At one level, the participants and the judge are applying a set of rules that govern characterization of property as community or separate and looking at making a just and equitable division of property. (There’s that word “just” again.) But at another level, the inquiry is what the soon to be ex-spouses owe to one another based on their history and circumstances. The court is basically forging a new relationship out of the ashes of the parties’ dissolved relationship and then defining the rules that will govern that new relationship.
I think this definition of justice is helpful not only for judges and lawyers, but also in inter-personal relationships. When I’ve breached a relationship, shouldn’t I be thinking in terms of what duties I owe and how I can make amends for the breach of those duties?
This definition is also quite helpful when we think of disparities in income and wealth. What duties do we have to those less fortunate than ourselves? Our great faith traditions tell us that we have an obligation to aid and support the poor and disadvantaged. But a property rights view of life might say that we have every right to hold tightly to our own property and ignore the misfortunes of others. Every one of us faces this choice—what duties do we owe to the less fortunate and will we fulfill those duties or not?
I would argue that poverty is itself a broken relationship. The poor are out of balance or harmony with the rest of society. That is why the well to do have an obligation to help the poor. Justice requires that we respond to the needs of the poor through some form of assistance in an effort to bring the less fortunate into right relationship with the rest of society.
I’m proud to say that the lawyers of Kitsap County believe that we have a duty to aid others, through pro bono legal services, through building a Habitat house for a single mom on Bainbridge Island and then building a home for another mom in Suquamish, and in hundreds of other ways.
I also believe that thinking of justice in this way provides us with a way of thinking about some very current issues in society. I mentioned abortion earlier. Does it change our view if we consider the duties owed with respect to abortion? What does a woman owe to a fertilized egg within her body, which has the potential of developing into a fetus and eventually being born? What does society owe to that tiny spark of life that can grow and be born?
In closing, on this law day 2010, let us think of the law as a path to justice. And let us as lawyers and judges look at the cases that come our way in terms of healing relationships, deciding what is necessary to do justice to create harmony. If we can do this, our courts of law will also be courts of justice.
And let us as individuals look at every broken or damaged relationship in terms of healing that relationship, considering what is necessary to restore balance. Justice is not some abstraction in some philosopher’s vision of utopia. Justice is what we do. Justice is a verb.
Thank you very much.
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