In a week when a new Pope was elected and scientists at Cern in Switzerland grew more certain that the so-called ‘God particle’ or Higgs boson exists, I fell to thinking about the values of our own profession, and where it stands in the spectrum between the two framework terms of reference of our age: religion and science. I would like to think that the practice of law, as part of the administration of justice, is closer to science. But if I subject all three frameworks to my own irreligious and unscientific analysis, I find something surprising.
To summarise each of the two major frameworks unfairly in a sentence, religion posits an unseen and pre-existing structure, in which we must have faith; whereas science also posits a largely unseen structure, but argues that faith is not required since evidence proves it. Both assume that the structures they trace are independent, or at any rate outside human agency. Yet they share more than they like to admit.
To sceptics (although furiously denied by believers), religion is man-made, a construction to comfort us through our rocky lives. And to scientific sceptics (again, furiously denied by scientists), the laws of science are similarly man-made, in the sense that we discover only what touches us, and often misinterpret it as a result of our inbuilt biases. Hence the difficulty to date of finding out the nature of dark matter, or the journey from the absolute (Newton) to the relative (Einstein), and who knows where to next; and, most importantly, the impossibility of knowing the extent of scientific laws that have no impact on human brains.It is refreshing then to come to the law, which everyone agrees is man-made, or at any rate we in Western democracies agree is man-made. (I know that in some countries, where religious law is dominant, the same arguments as those above prevail.)
In Western democracies, there can be no believers and no sceptics about the law: we make it ourselves, and we change it in the light of different circumstances. We may disagree about the circumstances in which it should be changed, but left, right and centre agree that it is changeable. There is no unseen justice, independent of human agency, which we are straining to believe in and discover. I like that a lot, and although the law cannot replace either religion or science in providing universal answers, it seems like a healthy set of principles in which to immerse ourselves during our working lives.
And yet… We all agree that laws can change, but if they can change, what is justice but an independent principle outside ourselves which we are always striving to perfect in the form of legislation or case law? Human beings cannot change principles of justice, but merely attempt to interpret them as well as possible in the light of current circumstances. Justice is never reached, only sought. If justice were to be broken down into its elements and described, it would share (I hate to admit) some elements with religion or science, in providing abstract principles which are to be applied to human behaviour. The principles are discovered by us, not made – just like religion, just like science – and cannot themselves be changed. Justice survives even our extinction, to be applied to other circumstances which might arise.
I betray my personal prejudices if I admit that, just as I love thinking that the law is man-made and can change, so I dislike the notion that justice exists beyond us as some ‘eternal lamp’. It seems, however, an inescapable conclusion. If slavery were just in Greece or Rome, and is unjust now, that argues in favour of the case I dislike, because justice impels us to reinterpret the principles. If justice were man-made, it would be possible that nothing would ever change on the legal front.
We have chosen to become lawyers for a variety of reasons – to help people, to serve the public interest, and, yes, I know, so that we will be able to make money. But surely what drew us to the profession is its practical, human-centred, logical nature. It disturbs me (but maybe not you) to think that it might have an unseen, mystical side, which is the real force leading us on. The response I shall adopt is to concentrate on the job in hand, and not think too much about its meaning. Otherwise, I come to the conclusion that I am involved in something like religion or science, with a varying mix of the visible and invisible, the provable and unprovable, the temporary and the infinite. That is not the profession that I believed I signed up to. But maybe that is what drew you to it?
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs