Reprinted from last March
My nephew asked a few posts ago about presumption of innocence in our system -- whether the fact that a guilty rich man could go free with expensive lawyers, while an innocent man with poor representation is condemned, illustrated a presumption of innocence.
People who have studied the history of law can explain to me how my ideas keep coming up every century but have to be shot down as stupid, but I'll have a stab at it.
I suspected immediately that the question is dependent on another, and reflection has not changed my mind. Is the purpose of law to create justice, or to limit injustice?
Our hearts would ask of our laws that they created justice, but the practical experience of actual law suggests otherwise. Even when God gives law, the majority of the 10 Commandments are negative expressions. When Jesus is asked to name the greatest of the laws, he quotes summary statements of positive law: Love God, Love your neighbor. His teachings in the Gospel of Matthew 5 through 7 also include mostly positive, justice-seeking law. These are also some of the hardest chapters to endure, as they command of us a level of justice we immediately know we cannot attain.
I take from this that using law to create justice is the higher expression, but one so far out of reach that we immediately resort to something lower that we can handle. Jesus says as much when discussing divorce, giving the positive command of what the perfection of marriage should look like. When the disciples protest that this is too hard, complaining that Moses gave them an out, Jesus acknowledges that Moses did indeed offer a law to limit injustice, because of their hardness of heart.
If Jesus barely dares to push us that far, it isn't surprizing that American law seldom aims so high. We may speak highly of Life, Liberty, and the Pursuit of Happiness, but when it comes down to actually enumerating what the laws will be, they begin "Congress shall make no law..."
We might hope to create perfect justice in any situation, and perhaps it is worth trying to frame a law that way. But more likely, positive justice will be a sword too sharp, too able to create misery if used incautiously. The utopian communities and governments illustrate this. Idealistic, aspirational communism created the greatest horrors of the 20th C. Settling for limiting the injustice in a fallen world, attempting not to prevent injustice but to respond to and remedy it, has produced the more peaceful society.