The series of 16 lectures, delivered at St. Mary's Church in Oxford, fulfills a promise O'Donovan (moral and pastoral theology, U. of Oxford) made at the end of The Desire of the Nation to look at Christian political ethics starting from political rather than theological questions. They consider the political act: judgment, political institutions:
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THE WAYS OF JUDGMENTThe Bampton Lectures, 2003
By Oliver O'Donovan
William B. Eerdmans Publishing CompanyCopyright © 2005 Wm. B. Eerdmans Publishing Co.
All right reserved.
Chapter OneThe Act of Judgment
The authority of secular government resides in the practice of judgment. That is the thesis that the argument of this book will sustain, and it summarizes a characteristic biblical approach to government which has had a decisive effect in shaping the Western political tradition. It has deep roots in ancient Israel's political experience, where, at an early point in history, the "judge" (shophet) was apparently the only standing officer of the Twelve Tribes, there being no other central institution, so that even the provision of military leadership fell to the judge's care, as on the notable occasion in the narrative of the book of Judges when the judge was a woman. Under the monarchy the king was conceived as a judge, separating the wicked from the righteous, as appears in the little Psalm 101, a royal oath that ends with the alarming promise, "Morning by morning I will destroy all the wicked in the land" - that is to say, the king will hold judicial assizes daily. In the anonymous exilic oracle against Moab at Isa. 16:5 the restoration of the throne is spoken of in terms of "one who judges and seeks justice." And in the First Servant-Song of Deutero-Isaiah, where the Servant is depicted as a king, it is said that he will "bring judgment to the nations ... in his law the islands will put their hope" (Isa. 42:1, 4). Yet it would be an oversimplification to say that in ancient Israel judgment was the essential function of government. Not least, it would fail to account for the two great figures on whom so much reflection is focussed, those of Moses and David. The one, as deliverer and lawgiver, stands behind the judges of Israel; he is the source of their authority, not of their number. The other, as the recipient of a personal covenant with Yhwh, underpins the identity of the people as a whole.
For the proposition that the authority of government resides essentially in the act of judgment, we must turn to the New Testament, where St. Paul described the function of civil authority as to reward the just and punish the evil (Rom. 13:4). Such an interpretation of authority, though this has not often been recognized, is in fact an iconoclastic one. It self-consciously dispenses with other functions of political authority that must have suggested themselves to readers of the Hebrew Scriptures as well as observers of the Roman world; it strips down the role of government to the single task of judgment, and forbids human rule to pretend to sovereignty, the consummation of the community's identity in the power of its ruler. This is, of course, in part an acknowledgment of the purely secular character of government in the Christian era - "secular," that is, not by its own profession, which is irrelevant, but by its actual position in salvation history. Other tasks that governments might perform, and in ancient Israel did perform, such as determining the form that public worship must take, could have no interest in a world where God had conferred his sovereignty upon his Christ. The higher goods of mankind's social destiny have been looked after in the proclamation of Christ; only the lower goods of judgment need concern earthly princes. For Paul, no less than for John of Patmos, there is only one political society in the end, which is the new Jerusalem; sovereignty is to be found there and nowhere else. Israel's identity is complete there, and the identities of other nations are of no account except insofar as they are found in Israel's God and his Christ. This passing usefulness, however, the rulers of the nations still have, pending the final revelation of Christ's sovereignty: they maintain a distinction within their societies between the just and the unjust.
This new way of envisaging the political function I have described, in an expression doubtless capable of improvement, as the "reauthorizing" of government as judgment. This does not intend to say that the whole operation of government is thinned down, as in some libertarian fantasy, to the operations of civil courts of justice; it means that political authority in all its forms - lawmaking, war-making, welfare provision, education - is to be re-conceived within this matrix and subject to the discipline of enacting right against wrong. My expression intends to sum up two contrasted but complementary assertions characteristic of the Christian tradition. In the first place, the terms on which the bearers of political authority function in the wake of Christ's ascension are new terms. The triumph of God in Christ has not left these authorities just where they were, exercising the same right as before. It imposes the shape of salvation-history upon politics. The operations of the Holy Spirit in the world drive the political leaders back upon the tasks of justice, and so effect a transformation. This offers a distinctive perspective on the evolution of political forms in history. For the hero-warriors of Troy the ultimate test is the survival of the city, for the warrior-monarchs of Beowulf the survival of the tribe; but that is ground we can never re-occupy. Even were the same conditions as once prevailed in Magna Graecia or Scandinavia to prevail again, we could not return to that state of mind in innocence; for something about our human vocation has been shown to us: we are called to a final destiny in the life of the new Jerusalem, subject to the throne of God and the Lamb. Only of that throne can it be said that by its sheer prevailing it gives life. All other thrones need further justification; their role is subordinated to the task of preparing the way for that final one. This was the ground of the distinction that arose within a Christian view of history between secular and spiritual authority, this-worldly and ultimate rule.
In the second place, political leaders are not simply denied their authority, but are constituted, on these new terms, as a secondary theatre of witness to the appearing grace of God, attesting by their judicial service the coming reality of God's own act of judgment. In the light of Christ's ascension it is no longer possible to think of political authorities as sovereign; but neither is it possible to regard them as mere exhibitions of pride and lust for power. To the skeptical question, "What else, basically, are the courts of this world - together with all its prosecutors and lawyers - than the necessary institutions which have come from original distrust?" we are bound to answer, "Much in every way!"
The term "judgment" is what the grammarians call a nomen actionis, that is to say, the name for a type of act, the "act of justice," as St. Thomas describes it. When we read the famous prophetic texts in which the Hebrew noun mishpat is employed, we must always bear in mind its active force: the king "judges (shaphat) and seeks mishpat" (Isa. 16:5), and the Servant "will bring mishpat to the nations" (Isa. 41:1). The immediate concern of these texts lies with courts and litigation, though the Servant-Song shows how the international sphere, too, could come to be construed as a great court of divine judgment. The famous word of Amos 5:24, which bids us "let mishpat roll down like waters," has in view a flood of judicial activity. Courts are to be held every day "in the gate," appellants are to be heard quickly and without the need for bribes, verdicts are to be clear-sighted, decisive, and enforced. The active sense of mishpat famously influenced St. Paul, whose use of the Greek word dikaiosune carried over the force of the Hebrew noun: the "dikaiosune that is by faith" is God's act which sets wrong right (Rom. 3:21f.).
"Judgment," then, is more sharply focussed than the abstract noun "justice." This latter term has been used in broadly three ways in the moral discourse of the West. In the first place, and most conformably to modern usage, it has been used to describe a state of affairs, a kind of moral equilibrium obtaining between two or many things, a state which it is morally requisite to bring about or morally prohibited to disturb. In the medieval Western tradition this sense is represented especially by the Roman-law term ius, "right." In the second place, and most characteristic of the classical philosophical discussion, "justice" is the name of a virtue, which resides in those who are disposed to "render each his due." This virtue is either one of many, "special justice," differentiated from the other virtues by its specific reference to what we owe others, or it is the sum of all virtues, "general" justice, a sense which hardly survives in English, though, when English vocabulary was still fed from the Authorized Version of the Bible, it was spoken of as "righteousness." In the third place "justice" has been used to describe effective performance, the act of "judgment," which sets wrong right. When people "demand justice," what they want is for somebody to do something. We may distinguish the three conceptions of justice by speaking of justice-as-right, justice-as-virtue, and justice-as-judgment.
The Christian discussion of justice has been generated by the confluence of these three streams, in which justice-as-judgment, predominant in the Scriptures, has mingled with justice-as-right from Roman law and justice-as-virtue from Plato and Aristotle. Although all three of these notions have application to political life, only the performative notion represents an originally political reality. For Plato, the just man is like a just city, but can exist without a just city, for justice-as-virtue is an ordered disposition of the powers of the soul, not of relations among and between people. Justice-as-right supposes a society, on the other hand, but without reference to political organs, so that in this sense the phrase "original justice" may be used of the pre-political social harmony of the Garden of Eden.
Let us venture upon a working definition: judgment is an act of moral discrimination that pronounces upon a preceding act or existing state of affairs to establish a new public context. On this I shall make four comments.
(1) Judgment is an act of moral discrimination, dividing right from wrong. The pretension of judgment is to resolve moral ambiguity and to make the right and wrong in a given historical situation clear to our eyes. It "defines," as Grotius says, "between two parties." It is an intellectual act, implying the exercise of intellectual virtue. In the Hebrew Scriptures, indeed, judgment often appears as the supreme expression of "wisdom." The famous story of Solomon and the two women is intended to display how the wisdom conferred by God on princes resolves the obscurities of conflicting claims. The emphasis laid by idealist thinkers on the intellectual character of political action is not due solely to Plato's famous thesis about philosophers and kings; it derives also from the ancient Near-Eastern association of wisdom-ideals with government.
(2) Judgment pronounces upon a preceding act, or on an existing state of affairs brought about by action. It is by definition reactive, following what it pronounces on. It is not, and never can be, a forward-looking action, like "founding" a city, "striking" a blow, or "broaching" a question, but derives its rational conditions from a reflective reference, like "answering" a question, "defending" an encampment, "noticing" a sound, etc. To pronounce a judgment is always to speak about something that already is the case. This is especially important for the theory of punishment: "retribution," i.e., reacting to the past, cannot be recommended as a virtue of judgment; it is quite simply a condition for judging at all, as opposed to, let us say, taking an initiative. When we have said that punishment is retribution, we have, as yet, said nothing as to how we may punish well; we have only said that punishment is, as such, a species of judgment.
(3) Judgment establishes a public context, a practical context, that is, in which succeeding acts, private or public, may be performed. The fact that an act must be by definition retrospective does not mean that it must be undertaken without a prospective object of action, another point of importance for the theory of punishment. No human actions are ever undertaken without prospective objects; they differ, however, as to whether their objects are purely prospective - "setting out on a journey" - or incorporate a retrospective object, too. The prospective object of the act of judgment is the securing of a public moral context, the good order within which we may act and interact as members of a community.
An act of judgment may therefore be assessed by the success of its outcome, as well as by the truth of its pronouncement. "Execution is the life of the law." It achieves its goal only if a public moral context is established by the judgment, and the public moral context is, in some respect, more just as a result. This may involve making a substantial change to the public context, as when a new law turns something that we have hitherto done with perfect innocence (let us say, hunting foxes) into an offense overnight, or something we have done furtively (say, smoking cannabis) suddenly becomes legitimate. And so we may think of a good judgment as "creative," in that it brings new possibilities of action into play. Yet creativity is a metaphor that needs some care. We should not be misled by it into an excessive admiration of radical judgments at the expense of conservative ones; for a judgment that simply vindicates the existing public order against some affront may have better results than a judgment that modifies it. This judgment, too, "founds" a secure and enduring context for future action. Furthermore, while it is not inappropriate to say that human beings can be creative, imitating and witnessing to the radical creativity of God simply by making something new out of what they have found, no human act can be radically creative in the sense of giving existence to things that had no existence before. Judgment, unlike a work of art, creates the new only by pronouncing upon the old. The strength of its results will depend upon the truth and conviction that its reflection on the old can command.
Judgment, then, both pronounces retrospectively on, and clears space prospectively for, actions that are performed within a community. Some acts performed by public authority are not acts of judgment since they make no reflective pronouncement: the government signs a contract with one company rather than another, the Prime Minister appoints this minister rather than that to a cabinet post, but there is no suggestion that the disappointed company or minister have done anything wrong. Some acts performed by public authority, on the other hand, are not acts of judgment since they constitute no new public space: the Secretary of State for Health issues warnings to the public about safe levels of drinking, but we have exactly the same discretion over how much we drink as we had before. The form of the political act lies in this double aspect, retrospective and prospective, as pronouncement and foundation. Initiative in action does not constitute judgment, and neither does simple protest.
Excerpted from THE WAYS OF JUDGMENT by Oliver O'Donovan Copyright © 2005 by Wm. B. Eerdmans Publishing Co..
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