This is the final piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. It is a reply to Michael Foran’s piece “Rights and the Common Good.” A general introduction to the symposium can be found here. Jamie McGowan is a PhD Candidate, University of Glasgow.
In the Rhetorica, Aristotle argued that judges should “be allowed to decide as few thing as possible”. In short, he was worried about how the subjectivity of individual cases could detrimentally affect the common good. St Albert and St Thomas shared this view with Aristotle, elaborating further that it is better to allow political institutions to create law for the entire community, and leave judges to deal with any omissions or make exemptions from the law as justice requires. This classical preference for political institutions seems to stem from three core concerns about the resources available to a court.
- The court room is a forum where specific technical matters are debated. St Albert particularly decries how lawyers use (or misuse) law for litigatory victory, rather than using it to establish moral rectitude or pursue the truth.[2] This tendency is not unheard of today; the intentional manipulation of the law for specific interests is commonplace in practices such as public interest litigation;
- Courts are not typically endowed with foresight. St Thomas expressed a particular concern about how judges deal with cases as they arise, whereas lawmakers (mostly) have an abundance of time to deliberate and draft laws which are holistic and cater well for the entire community.
- Courts are not endowed with political prudence. St Albert makes a very clear connection between good law and the lawmaker’s knowledge of the community to which that law is directed, “in order to lead them to the good.” This is apparent in St Thomas’ discussion of how law must always be made with peace in mind: while laws which are too lax will not encourage virtue at all, laws which are too strict will also not encourage virtue if they incite civil unrest. Knowledge of such a delicate equilibrium is not generally a resource available to judges, but oft available to politicians.
Courts, thus, are not the ideal forum for general norms (i.e. law) to be determined; rather, courts deal with exceptions and abnormalities to address the needs of right and justice in individual cases, through appeal to both the positive law and the natural law (and, by extension, the common good).
