Suum Cuique or why You, Lawyer, Should Not be Silent

 

Our electronic world is frequently disorienting.  Indeed, it can sometimes be worse than disorienting.  We can be in our safest place and receive words written or spoken by those with power that express or strongly infer that not all law-abiding Citizens are fully protected by our system of justice or that those with authority to enforce our laws are right to act with malice or mockery towards certain Citizens.  I propose that licensed lawyers are obligated, in the face of such words, to act against them.

The ABA Model Rules of Professional Conduct establish that lawyers’ duties extend beyond those owed to their clients.  Lawyers have a responsibility to serve the system of justice itself.  The Model Rules begin by listing a lawyer’s basic responsibilities, which include the following: “[A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”[1]

“Among all the things that preoccupy us today, there seem to be few that are not connected with justice in a very intimate fashion.”  Josepf Pieper wrote those words in the 1950s as part of his wonderful study of Justice.[2]  Pieper’s words remain true today, and, as Pieper did in the last century, I believe that we can carve our way through much of today’s noise by going back to basics, asking simple questions, such as “what does justice mean?”

Pieper began considering the meaning of justice by peering into the abyss.  He observed that justice, as a word, “contains multiple meanings,” so many that “it is quite impossible to master them.”  Yet, he pivots immediately from this overwhelming prospect and offers a simple idea that serves as the essence of justice’s meaning.  Pieper writes that justice, at its core, means this: one person gives the other person what he or she is due.[3]

Pieper supports grounding justice in this idea by listing a pantheon of esteemed Western thinkers who share this understanding: Plato, Aristotle, Aquinas, etc.[4]  Pieper focuses his study of Justice on what it means as a virtue.  I doubt I could do better than suggest Pieper’s study as a place to start to those who are interested in the conventional Western understanding of the idea of justice as a virtue.

Pieper’s observation that justice is impossible to master may be discomforting to modern readers.  We can find form around the essential meaning, however, and perhaps gain further footing, by considering the Oxford English Dictionary’s construct for “justice” — and “just,” a word on which, in part, justice rests.[5]  We can find connecting chords that weave among justice’s multiple meanings, binding these multiple meanings to each other and to justice’s essence of giving the other his or her due.

Pieper was correct in naming and focusing on justice as a virtue of course.  Indeed, under standard Western conventions, it is a primary virtue.  We find other virtues in the word too.  We find that justice includes integrity, impartiality, fairness, and rectitude (a rare word to find anywhere these days).  We find other positive personality characteristics that branch from the virtuous essence.  Justice includes doing what is morally right and being faithful and honorable in one’s social relations.

We find that justice includes notions more typically associated with science.  For example, exact and accurate calculations, as opposed to approximate calculations, are just.  Weights and measurements can be just.  Likewise, the symbol of justice holding a balanced scale in one hand reveals how deeply the idea of justice is connected with the physical sciences and with precision.  And this symbol is blindfolded — revealing too that justice is not to consider who appears before it but justice considers only that which is being measured and judged.

We also find the law.  We find lawful, legal, and right.  Near this we find another meaning.  Justice also means the administration of law.  This meaning is rooted in the actions of judges who administer the law, but it reaches beyond this to others who are authorized to administer the law.  We find the Latin root word “jus,” which is generally understood to reference the “law,” including those rights shared by citizens of ancient Rome, revealing that the essence of justice is coupled with the law.[6]

It is also noteworthy what we don’t find in the meaning of justice. We don’t find ambiguity or coded words.  We don’t find vices, such as anger, greed or pride. We don’t find nihilism. We don’t find manipulation or inconsistency.  We don’t find hate.  We don’t find irrationality or dismissal of science.  We don’t find that the law should be applied to favor some Citizens over others, regardless of the issue at hand.  We don’t find imbalance in the judge or other authority.  We don’t find the authority administering with a favor to some.  We don’t find the authority dismissing the rights of persons acting with morals and in good faith. We don’t find the authority encouraging or empowering others to act against justice or supporting those who act against justice.  We don’t find the unauthorized use of power.  We don’t find inaction or delay.  We don’t find malice or mockery.

We also don’t find courage or fortitude.  Courage is a separate virtue.  It is another primary virtue, of course, derivative from justice.  All Citizens can be thankful that lawyers do not have a general obligation to be courageous.  We do have a specific obligation, however, to instill confidence in our system of laws, to support justice.  Doing this may take courage.

Aquinas wrote “that justice is corrupted in two ways: by the cunning of an astute man, and by the violence of a powerful man.”[7]  He wrote these words hundreds of years ago.  Our system of laws, our system of justice, is much different now than when Aquinas was writing.  Justice is much more complex.  Each state’s process for admitting lawyers into the practice of law reflects this, as do the ever-increasing number of reported cases and the seemingly unlimited number of law reviews, legal treatises, and other legal reporters and resources available online.  Our clients rely on our competency in resolving legal issues, and these issues often reflect the larger justice system, calling on specific, sometimes highly specialized, parts of the whole.  This complex system of laws allows for and perhaps even nourishes richness in ideas, understandings, and possibilities.  Yet, Aquinas’s warning remains valid, perhaps even more so now with the complexity that makes understanding the system that much more challenging.

The essence of justice remains unchanged, even with the great complexity of our legal system.  Lawyers today represent their clients and counsel and advocate for them in limitless ways, with the goal of getting them what they are due.  We do a disservice to our clients and to our profession if we don’t also act in support of the system itself.  Justice is empty without lawyers.  The Model Code recognizes this, calling on lawyers to act on its behalf.  Lawyers do not promote confidence in the rule of law when they remain silent in the face of those who seek to undermine it.  We have the duty to act in the face of such threats, regardless of how powerful those threats may be.

 

David I. Schrodt is a Partner in the Banking and Financial Services Department at Chapman and Cutler LLP, serves on the Board of Chicago Council of Lawyers, and is a member of the Chicago Appleseed and Chicago Council of Lawyers Collaboration for Justice Pro Bono Committee.

 

[1] “Preamble: A Lawyer’s Responsibilities”, No. 6 (American Bar Association, Center for Professional  Responsibility, 2013).

[2] Josepf Pieper, Justice, translated by Lawrence E. Lynch, 9 (1955).

[3] Id. at 10.

[4] Id.

[5] Just and Justice, The Oxford English Dictionary (2nd Ed.1989).

[6] Id.

[7] Thomas Aquinas, Commentary on the Book of Job, translated by Brian Thomas Becket, Chap. 8 (2016).