John Adams by Gilbert Stuart, 1821, courtesy of National Gallery of Art, Wash. DC
By Walter Borden, M.D. –
“At his best, man is the noblest of all animals: separated from law and justice he is the worst.” Aristotle, Politics 1.1253a
Aristotle speaks of Law and Justice. Is there a difference? Yes, Law means written, statutory, legal code. Whereas Justice embodies a wider and deeper meaning, encompassing social-humane values meant to maintain peaceful order, to enable humans to live together in a community. This definition requires explanation: for us humans to live together in a group larger than a nuclear family, we must solve an innate savagery, a primitive aggression that harkens back to a time when survival of the fittest, was defined physically and aggressively. This is all well and good for an individual in a jungle, or even a nuclear family, but once human evolution required connectedness, for individuals to hunt together, to defend to together, then to trade together…get the picture: social evolution required increasing demands on the innate human need to connect.
For much of human history revenge served as a cornerstone to the balancing of opposing forces, a violent way of conflict resolution. Unfortunately, it was also an obstacle to social evolution. The earliest forms of written “justice” were called Revenge Justice, as in the code of Hammurabi, ca. 1758 BCE, based on retaliation: lex talionis or “law of equal[s]” and assimilated into the Judeo-Christian principle of “an eye for an eye” first developed in the Late Bronze Age under Mosaic tradition.
Then, in Greece between the 7th to 6th century BCE, developments set in motion the evolution of Justice, a development that wisely overshadowed revenge. Solon (630-560 BCE), the elected archon of Athens, was influenced by the revolutionary thinking of two philosophers, Thales and Anaximander. These two natural philosophers challenged mysticism, mythology, belief in the gods. They proposed the only way to understand the world was through a process of observation and critical reasoning, (see Carlo Rovelli, Anaximander and the Birth of Science, tr. by Marion Lignana Rosenberg. New York: Riverhead Books, 2023). They said that mythology were fictions created to explain the unknown, and the only path to realistic understanding was through observation and applied logic, what we now call deductive reasoning or scientific thinking. Plutarch tells of a close relationship between Thales and Solon.
Solon became the first known political scientist. He perceived social disparities, greed, and hubris of rulers as the source of civil unrest and the hunger for order, that peaceful order was necessary. Peaceful order under its new Greek name dike became the definition of Justice.Solon established a power sharing constitution and legal code. The central and sustaining principles were the rule of law and humanism. Government was restructured to grow the middle class, redistribute power and encourage humane values.
It should be noted that the historical context of these beginnings that enabled the development of twin revolutions, democratic justice and scientific thinking, was an eye in the storm of history that included freedom from an established priestly class and/or political establishment to object to these revolutionary cultural developments.
At the same time another cultural leap served to strengthen this new form of governing that came to be called democratic justice. One hundred years after Solon, the tragedian Aeschylus, living in the middle of a political challenge to democracy, wrote The Oresteia, a powerful trilogy cycle that has been called a dramatic metaphor of the evolution of revenge justice toward democratic justice (see The Oresteia, Penguin Classics, tr. Robert Fagles, 1984).
Since that time, while Science has evolved and accepted as the norm, there has always remained an underlying pull to magical thinking to explain away the anguish of human ills. And from time to time the mystical pull, clouded in legalese, surfaces in a legal court, challenging Science (note the trial of Galileo, 1428 and the Salem Witch trials), and even today our modern media spews out a firehose of delusions masked as “ conspiracy theories” or even “facts.”
The Athenian legal system served as a frame of reference for the codification of Roman law. Cicero was a Roman philosopher, statesman, lawyer, orator, and political scientist. He had absorbed the Greek legal system while living and researching in Athens. He returned to Rome and transfused the Roman codes with the Athenian humane values. He appears to have either created or developed the term “Humanitas” in Latin.
In 51 BCE Cicero carried Athenian law to Rome(see Cicero. De Legibus. Thomas L. Pangle, tr. Princeton, NJ: The Witherspoon Institute. 2011. Book 1, sections 18–19 below).Cicero himself speaking:
Now let us see the principles of justice. The most learned men have been pleased to begin with law, which is correct if it is defined in the way they do: law is the supreme reason inherent in nature, which commands those things which ought to be done and prohibits the contrary. This same reason, when it is confirmed and completed in the human mind, is law. And so they judge that law is prudence, whose strength is to command what it is right to do and forbid wrongdoing…So, if this is correctly said, as it usually seems to me for the most part, then the beginning of justice is from law, which is a force of nature, the mind and reasoning of the prudent, the standard of justice and injustice. But since this whole speech of ours now is directed to the reasoning of the populace, it will be necessary to speak popularly, and to name “law” as the vulgar do: that which is written and which decrees what it wishes, either commanding or prohibiting. But in constituting justice in truth let us take the beginning from that supreme law which was born before all the centuries and before any written law or any city was constituted.
The distinction between Law and Justice is important to keep in mind as too often the word Justice is used as if it were solely law (statutory law). It is important because Justice as enabler of living together may conflict with legal code. An example is slavery that was lawful (written) at the time of the Constitution’s writing. Slaves were considered property, of material value, but of no human value. Can anyone really believe that was meant as fixed in stone? The Founders assumed the Constitution was a living organism which would grow. You would think the question was settled by the Emancipation Proclamation of 1863 and the Civil War, but “justice” has been obscured, twisted, turned inside out and backward by our modern political process. The tool of the twisting is words stitched together in statutes that masked the continuance of oppression. We are paying a steep price for slavery and the racism that feeds it, racism hidden behind the words that masks primitive fear of “the other”.
To give an appreciation for the endurance of revenge we have only to look at a Supreme Court justice in the 19th century. The rationale for revenge justice was expressed by no less than Oliver Wendell Holmes. In 1881 in The Common Law 46, he wrote, “It may be said, not only that the law does, but that it ought to make the gratification of revenge an object. The first requirement of a solid body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.”
Holmes was under the influence of Social Darwinism, a then popular ideology, an ideology later exploited by Hitler. Holmes was not able to foresee how Darwin’s words could be manipulated. The point is that Holmes did not have the knowledge and or expertise to understand the darker side of human nature and how Social Darwinism could be twisted. He had gone beyond sound judicial function. This is a good example of judicial blindness and hubris.
Our Founding Fathers looked to the history of Justice in writing our Constitution. They incorporated Solon, Cicero, etc. into our Constitution, including a tripartite government, an adversarial trial process, and right to appeal (see Thomas R. Hicks. First Principles. Harper-Collins, 2020).
Justice serves as a political flag for many tribes in our culture. To some, it is the words of the Constitution as originally written without consideration of the context or changing circumstances. The most recent champion of Constitutional “Originalism”, the late Justice Anton Scalise wrote “When a case comes to me, I don’t do whatever I feel like doing, I have a standard. That standard is what would the people at the time of the Constitution was enacted have said.”
And yet one of those “originalists”, Thomas Jefferson no less, wrote: “Some men look at constitutions with sanctimonious reverence, and deem them, like the arc of the covenant, too sacred to be touched. … We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain under the regimen of their barbarous ancestors”. And what would the people at the time of the writing of the Constitution have said about abortion? Abortion is not mentioned in the Constitution; nor is cardiac surgery, CT scans, gamma knife brain surgery, smallpox vaccines or the host of other public health scientific advances that serve as infrastructure to our civilization.
Humane civilization needs humane Justice, and Justice needs both Science and Law working in concert. Law provides the necessary guidelines to control the potential harm of scientific advances. Example: one of those advances is, arguably, the motor vehicle. A license is required to drive a car. To obtain that license specified relevant knowledge is required and demonstrated through testing. Dentists require licensure, doctors require licensures, to protect the public from shamans. Medical licensure is just one of many laws to protect public health. To practice law a license is required through obtaining knowledge of the law sufficient to pass a bar exam. This protects the public from charlatans.
And Law needs Science as without the myriads of developments, from the wheel to AI, we would not have meaningful civilization including Law. But working in concert requires mutual respect. Therein lies the rub.
There is a long history of conflict between Law and Science. The warriors for rationality and their battleground cases resound through modern history. Galileo, in 1428 was prosecuted by the Inquisition for defending science; Johan Weyer confronted the law in 1557-1660 (look up Opera Omnia) maintaining confessions of witches were the result of mental illness brought on by torture and horrible living conditions. Weyer was later recognized as contributing to the development of modern psychiatry.
The conflict between Law and Science is still with us. Thomas Jefferson and John Adams differed as they wrote our Constitution. Adams was influenced by John Locke and adopted the Lockean doctrine that although all power derived from “the people.”— “despotism or unlimited sovereignty or absolute power is the same in a popular assembly, an oligarchy as in an Emperor.” The difference is obvious between the Latin LEX REX “The Law is The King” and REX LEX “The King is the Law.” This loathing of despotism became Adam’s creed: “He opposed the Jeffersonian ideology that made “the people” infallible, a mystical medieval theology. This difference in perspective about Law and Justice between Adams and Jefferson was an ongoing replay of an age-old conflict between the proponents of statutory law and natural, or moral law. That age-old conflict between the proponents of statutory law and natural, or moral law goes on. A more recent case, Daubert vs. Merrell Dow 1993, established the court as gatekeeper of accepting science as based on relevance and reliability, and Jacobsen vs. Massachusetts 1905, balancing public health vs. rights, requiring mandatory vaccination.
Safe abortion was unknown by Adams, Jefferson, Madison et al., as was vaccination. The basis of many pregnancy complications was unknown, as were the advances in understanding of its complications and medical management.
What might all this have to do with our current Supreme Court? Can this distinction between law and justice be applied logically? Reproduction involves complex biology, not Law, certainly not statutory law. Do the supreme court members have the biological knowledge and experience to make decisions that are relevant and credible about abortion? Do state legislators have such knowledge? Medical thinking and Law thinking are different. Law is finite, even considering that the beauty of statutory language may be found in the eye of the beholder. In Medicine biological and psychological processes in any one patient may develop unique, complex complications not found on any printed page. It is impossible to generalize, or to talk meaningfully about abortion in the abstract.
Overturning ROE has resulted in cases of unforeseen threat to life of mother and maternal death in pregnancy. The fallout has resulted in an unacceptable threat to basic healthcare for many women. Of course, the Supreme Court could not have foreseen such complications because the members do not have the medical education that the Law requires for the license to practice Medicine. And, in Medicine there is no do-over there is no appeal process. Overturning ROE is a good example of how Law was blinded by hubris, ideology, and politics. The Supreme Court has practiced medicine without a license, deprived basic rights of bodily autonomy, sovereignty, and privacy. The Supreme Court practiced Law, but not Justice. Punting the issue to the states is no answer. Legislators are not doctors.
As a medical doctor myself, I know the medical doctor must make decisions based on knowledge and experience with the interplay of complicated biological, physiological, anatomical and pathological systems and within a time frame determined by nature. Misjudgment could well mean death of the patient and fetus. And the medical doctor takes the Hippocratic oath before licensure. That oath states “do no harm”. Harm can include not providing needed treatment. The Dodds decision puts the doctor in the position of having to choose between his medical oath, “do no harm,” and the law. Anyone can easily verify by available statistics how many needless deaths of problematically-pregnant mothers have already occurred because of abortion bans. Our Supreme Court in the Dodds Decision was an act of hubris and misogyny, and for those on the Court who claim the title originalists/textualists, an expression of what Jefferson called “sanctimonious hypocrisy”. And to throw vinegar on the Constitution’s wounds, the decision allowing presidential immunity is an example of bending their interpretations of statutes to political goals hidden in a fog of legalese. Alexander Hamilton said it best: “As in Religion, the word kills, the spirit gives life.”
The current anti-scientific, anti-intellectual wave – the modern form of mysticism without knowledge – has engulfed our world democracies in a generation. An effective democracy with effective democratic justice requires an educated enlightened population. Our education systems have failed large swaths of our population, vulnerable to a fog of distracting entertainments. Many – maybe not enough – are saying something like this in different ways, but I am saying this and qualifying it as a licensed doctor and a historian of both medicine and science. With little if any attempt to educate for critical thinking, and the potentially destructive impact of unfettered internet and deceptive AI by those with nefarious motives, no wonder we have a manifest thriving of cults, naive mysticism and bonkers conspiracy theories. Solon, Aeschylus, Cicero, Jefferson and John Adams – even as often adversaries – would have been saddened and spinning in their graves to see our ignorance of how to maintain our democracy and how justice can be changed into injustice by misusing and confusing law into a parody of justice.
Walter Borden, M.D.
Distinguished Life Fellow, American Psychiatric Association Diplomate, American Board of Psychiatry And Neurology, Diplomate, American Board of Forensic Psychiatry