the slow dance

I’m reading Cardozo’s ‘The Paradoxes of Legal Science’ and find some thoughts that I think are relevant to my classmate Peter’s qualms with law. I’ve argued my stance with him, but of course I’m another lowly law student and have no academic credibility.

Per saltum-our movements through life and in life. I like the picture this paints for me. We have all watched our child as they learn new skills. Things impossible for months and years, one day are possible. Of course, the change was occurring gradually over time, but one can’t generally see that creeping change. And so it is with the movement of law and justice as enacted by humans.

Cardozo talks about how we think we wrestle with new problems, brought on by the age in which we live, but says at its core are all the ancient mysteries, still not understood. He juxtaposes rest and motion, the one and the many, liberty and equality, property rights of the individual and the welfare of the many, justice in its universal quality and yet capacity for justice for the individual.

I quote “Society is inconstant. So long as it is inconstant, and to the extent of such inconstancy, there can be no constancy in law…We may think the law is the same if we refuse to change the formulas. The identity is verbal only. The formula has no longer the same correspondence with reality…Law defines a relation not always between fixed points, but often, indeed oftenest, between points of varying position….There is change whether we will it or not.”

He then goes on to talk about Einstein’s theory of relativity and how absolute rest and motion are meaningless, that motion is relevant only in relation to the changing position of other objects/bodies.

From there I go to Peter’s concern with how the law inconsistently metes out justice, and the inconsistencies and outright conflict found in the law. But the fault is not in the law. It is that the law, like other aspects of human behavior, is meted and controlled by humans, who are inherently prone to inconstancy and fault. Justice and the law are not inconstant, although they change continually. The opposing sides, whether the State and a defendant, or two sides in a lawsuit, vary in relation to each other, and justice moves with them.

I think the source of the breakdown in justice is as with any human system, all of which fail us continually. Look at governments, corporations, even PTA’s. Each has its own interests at center of its actions, and as a result cannot be fair and just. That is not the fault of justice. And even to mourn that condition is to mourn being human, with all its choices and beauty and pain.

This is easier to look at conceptually, the difficulty is in the individual application of justice. And here is where we come in. I harbor no illusions about changing the world, that ship has sailed. However, I can be justice (and respect and civility) to each person I interact with.

Justice is not truly based in our rules for external conduct, it is just that we have no other means to resemble it. Levy-Bruhl said that the morals of any given society at any given epoch are determined by the totality of its conditions both from a static and a dynamic view point. Social justice is a becoming if not a continuous process. Cardozo says that “Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate…Morality is not merely different in different communities. Its level is not the same for all the component groups within the same community.” Aristotle said of justice that it was that principle that was thought to partake of the nature of friendship. All of these views of justice have at their very essence a flexibility according to the totality of the situation.

By no means is this intended to be a defense of our system of justice. I do agree that it is messy and chaotic, and often justice does not result. It is, from my point of view, simply a dance-a slow dance of justice.