United States Supreme Court Building. Photo by Jeff Kubina via Wikimedia Commons

Can a Good Judge Ever Do Justice?

Judges, lawyers, professors, and even an outstanding Justice of the United States Supreme Court… For a week, they had to reckon with an eternal question, one that affects all of us.
Marta Cartabia

The themes of justice and the law were widely canvased in the course of Meeting 2007, and the best explanation is offered by the famous words of the United States Declaration of Independence of 1776: “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

Truth and justice are inseparable, observed Andrea Simoncini, recalling a well-known page of Fr. Giussani’s The Religious Sense during the introduction to the Meeting on “The Justice of This World: The Law in America,” with the participation of Samuel Alito, Jr., Supreme Court Justice, and Paolo Carozza, Associate Professor of Law at Notre Dame Law School and a member of the Inter-American Commission on Human Rights. But what is the relation between the fundamental demand for justice and positive law? The difference separating the imperfections of the law from the justice to which every human being aspires is the most dramatic point for all who work in the field of law, and who often find themselves hemmed in between the limitations of the powers entrusted to them and the desire for justice that goes beyond all human striving.

The role of a judge of the Supreme Court, observed Alito, is to ensure compliance with the Constitution, and it would be dangerous to go beyond this limit. But the American Constitution was written precisely with the idea of guaranteeing the rights inherent in human nature, as the Declaration of 1776 testifies. Therefore, even if it is clear that the Supreme Court does not have the power to correct every injustice in society, nevertheless the Court has to make sure the Constitution is effective, as positive law that presupposes the existence of natural rights. In the debate over the interpretation of the Constitution, which so divides American jurists, we must bear in mind that being faithful to the origins of the Constitution also means respecting the idea of natural rights self-evident to all reasonable beings.

It was the concept of the universality of human rights that developed international justice in the twentieth century, observed Carozza. The very idea of international justice would never have been possible had it not been based on the observation that all people have the same needs and the same rights in their hearts. Nevertheless, as things stand, in its fulfillment, international justice runs some risks. Its main deficiencies? Carozza summed them up as follows: “Politics without reason, rights without history, and justice without freedom.” The only antidote is justice inspired by the principle of subsidiarity–meaning, not yielding to the temptation to replace particular communities but supporting them so that they attain justice and human dignity in harmony with the particular history of each people.

Between veritas and auctoritas
And what about the Italian jurists? Despite the different tradition, they have similar problems. So the tension between respect for positive law and the yearning for justice was also at the center of the meeting on “Auctoritas, non veritas facit legem,” with the participation of Guido Piffer, a magistrate of the Court of Milan; Marcello Maddalena, Procurator of the Republic for Turin; and Giuliano Pisapia, lawyer and President of the Ministerial Commission for the Reform of the Criminal Code. Although required to work in a system dominated by written law, the Italian jurists also stressed that in the procedures there exist spaces for discretion, both in the ascertainment of the facts and in the interpretation of the law. And it is precisely in these spaces that judges can express their aspiration to justice and truth, while abiding by their roles as custodians of that positive law in which, he adds, we also have to include the Italian Constitution. Like the American Constitution, ours is inspired by the protection of certain inalienable rights: those written in the heart of every person.