2 Ulpian’s definition of ‘justice’ in terms of what one has a right to
The biblical writers do not give an account of justice; they do not explain what justice is. Assuming that their readers know what justice is, and injustice, they speak of God’s love of justice and of God’s injunction to us to do and seek justice, and they condemn the injustice that they find all around them. The Old Testament scholar, Walter Brueggemann, in his Theology of the Old Testament, says that the dominant overarching character of ‘Israel’s speech about God is that of testimony’ (Brueggemann 1997: 119). The writers are ‘giving their testimony’, as we say, not developing theory.
Shortly after Justinian became ruler of the Byzantine Empire in 527 CE, he ordered the preparation of three compilations of Roman law: the Code, which collected the legal pronouncements of the Roman emperors, the Institutes, a beginning student’s textbook, and the Digest, by far the largest and most influential of the three texts, which culled and organized everything of value from earlier Roman law. The influence of the Digest on the subsequent legal tradition of Christendom was enormous; it became its foundational legal text.
The Digest opened with what became a well-known definition of ‘justice’ that came from the third-century Roman jurist, Ulpian. Justice (iustitia), said Ulpian, ‘is a steady and enduring will to render to each their ius (suum ius cuique tribuere)’. The use in Ulpian’s time of the Latin term ius does not map precisely onto the use of any term in present-day English (see Finnis 1980: 209). Translators use a range of terms to capture Ulpian’s thought. To be just is to render to each person what is their due, their right, what is theirs by right, what they have a right to, what is owed them, what they have a rightful claim to, what they are entitled to. It’s the virtue of justice – being just – that Ulpian was defining. Justice is present in society insofar as its members exercise this virtue.
There are two fundamentally different sorts of justice, a point made already by Aristotle. One is justice in our ordinary engagements with each other: parents and children treating each other justly, banks and clients treating each other justly, etc. Writers have given this sort of justice a variety of different names; let’s call it first-order justice. The other sort of justice is the sort that is relevant when there has been a violation of first-order justice; call it second-order justice. Down through the ages, second-order justice has taken a wide variety of different forms, and continues to do so today: amputations, beheadings, stonings, putting to death by other means, incarcerations, beatings, exile, censure, reprimands, and so on.
It is likely that, when Ulpian proposed his definition of ‘justice’, he was either not distinguishing these two sorts of justice or intending that his definition apply to both. Parents and children rendering to each other their ius is iustitia; society rendering to wrongdoers their ius is also iustitia. Be that as it may, quite different things have to be said about these two sorts of justice when we go beyond offering a formula that applies to both to analysing what constitutes each of them. Of the two sorts, first-order justice is basic in that, if there were no such thing as first-order justice (and injustice), there would be no such thing as second-order justice (and injustice). For that reason, let us focus our attention on first-order justice in what follows – though a good deal of what will be said about first-order justice pertains to second-order justice as well.
There are few writers, if any, who explicitly contest Ulpian’s explanation of justice in terms of rendering to one’s fellows what they have a right to. Some of those who write about justice pay no attention to the connection between justice and rights. And, as we shall see later, some hold that thought and talk about rights is so seriously abused in the modern world that we should forego such thought and talk. But, to the best of this writer’s knowledge, no one explicitly contests Ulpian’s thought, that justice – in contrast, say, to benevolence – consists in rendering to people what is theirs by right, what they have a right to, what they have a rightful claim to, what would wrong them if they were denied it.
Unlike Ulpian, Aristotle, in his discussion of justice in the Nicomachean Ethics, does not say what justice is; he does not say what constitutes justice. What he does, instead, is offer a general characterization of those situations in which justice is present: justice is present, he says, when benefits and/or burdens are distributed equitably. That general characterization is compatible with Ulpian’s account of what justice is. One might hold that, in general, what persons have a right to is that they be treated equitably in the distribution of benefits and burdens.
Aquinas was, of course, profoundly influenced in his thought by Aristotle. Given that fact, and given the fact that Aristotle nowhere says or suggests that justice consists in being rendered what is due one, what one has a right to, one wonders whether, perhaps, the Ulpian account of justice is missing in Aquinas. It is not. Aquinas does say that ‘justice denotes a kind of equality’ (S. Th. II-II 57, 1; see also II-II 58, 2 and 59, 2; Dominican translation). But clearly he does not regard that as an explanation of what justice is. For when he asks in S. Th. II-II, 58, 1, ‘what is justice’, how ‘justice is fittingly defined’, his answer is that justice is ‘rendering to each his right [...] A man is said to be just because he respects the rights [iura] of others’. Aquinas goes on to say that justice can also be defined as rendering to each ‘what is his’ or what ‘is due to him’ (S. Th. II-II, 58, 11).
The contemporary neo-Thomist legal theorist John Finnis echoes Aquinas – and Ulpian:
[The] concept of justice is that of duty, of what is owed (debitum) or due to another, and correspondingly, of what that other person has a right to (viz. roughly, to what is his ‘own’ or at least his ‘due’ by right) […] [J]ustice concerns not every […] dealing between one person and another, but only those relations and dealings which are necessary or appropriate for the avoiding of a wrong (Finnis 1980: 162).
It is worth remarking, parenthetically, that in the passages quoted earlier from Bruce Malchow, in which he explained the meaning of the terms mishpat and tsedeqa in Hebrew scripture, he employed the term ‘rights’ five times.
3 The twentieth century dispute concerning the deep structure of rights
3.1 Rights as derived vs. rights as inherent
Though few, if any, writers contest the definition of ‘justice’ that opens Justinian’s Digest, a disagreement arose among Christian thinkers in the latter decades of the twentieth century concerning what might be called the deep structure of rights. A number of participants in the discussion have placed the basic point of disagreement in the context of what they claim to be a fundamental change from the pre-modern way of thinking of the deep structure of rights to the characteristically modern way. The following passage from Oliver O’Donovan’s The Desire of the Nations can serve as an entry to the discussion:
The language of subjective rights (i.e., rights which adhere to a particular subject) has, of course, a perfectly appropriate and necessary place within a discourse founded on law. One’s ‘right’ is the claim on which the law entitles one to demand performance […] What is distinctive about the modern concept of rights, however, is that rights are taken to be original, not derived […] The right is a primitive endowment or power with which the subject first engages in society, not an enhancement which accrues to the subject from an ordered and politically formed society. (O’Donovan 1996: 262)
What is it about some laws that generates a right in certain persons? It is this: laws of the sort in question impose on certain agents an obligation to perform (or refrain from performing) certain actions. And if X has an obligation to Y to perform (or refrain from performing) act ø, then Y has a right vis-â-vis X to X’s performing (or refraining from performing) act ø. Y’s right is derived from the obligation imposed by the law on X.
O’Donovan has ordinary laws in mind in this passage; and the first two sentences give the impression that he is claiming that, in the pre-modern way of thinking about rights, rights were limited to those implied by such laws. But the contrast, derived versus original, suggests that that is not his thought, as does the remainder of the passage in which the sentences quoted occur. Whatever it is that imposes on some agent an obligation to some person or social entity to perform (or to refrain from performing) a certain action, there will be a right derived from that obligation. Commands impose obligations. Promises impose obligations. Contracts impose obligations. Social practices of certain sorts impose obligations. And, of course, God’s commands impose obligations. Whatever it is that imposes an obligation of the sort in question, there is a right derived from that obligation. What O’Donovan is implicitly claiming is that, insofar as pre-modern thinkers thought and spoke of rights, they thought of them as derived in this way. O’Donovan makes clear that he shares this way of understanding the deep structure of rights.
And what, then, is the different, purportedly modern, understanding of that deep structure? O’Donovan describes it as rights understood as original. A somewhat more felicitous word would be ‘inherent’. Of course, everyone agrees that a good many of our rights are derived from obligations. The purportedly modern idea is that not all are so derived; some are inherent. Some we have by virtue of something about us, rather than being derived from an obligation imposed upon someone.
What might that ‘something about us’ be? By far the most common view is that we possess some of our rights on account of some worth we have, some excellence, some goodness, some praiseworthiness. Certain of our rights are what due respect for our worth requires. You have a right to be treated a certain way just in case, were you not treated that way, you would not be treated in a way that befits your worth, your dignity, your praiseworthiness. The philosopher Jean Hampton puts the idea well: A person wrongs another, treats them as they have a right not to be treated, ‘if and only if (while acting as a responsible agent) she treats him in a way that is objectively […] demeaning, that is, disrespectful of [that person’s] worth’ (Hampton and Murphy 1988: 52; passage italicized in original). Due respect for your worth as a human being requires that you not be tortured. Due respect for your worth as the one who won the race requires that you be honoured in whatever way is appropriate for winning. Et cetera. This is the understanding of inherent rights expressed in all the UN rights documents; they all ground rights in dignity.
Here is not the place to consider in detail whether the story told by O’Donovan and others, concerning a fundamental change in how the deep structure of rights has been understood, is correct. Suffice it to note that, since the publication of O’Donovan’s book, there have been two seminal studies by legal historians concerning the history of the employment by Western Christian lawyers and theologians of the idea of natural rights: Brian Tierney’s The Idea of Natural Rights: Natural Law and Church Law 1150–1625 (1997), and John Witte’s The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (2007). Natural rights – or what Witte calls ‘human rights’ – are rights that human beings have whether or not they have been conferred on them by some human act or practice. Rights that we have on account of some action on God’s part are, by this account, natural rights. Determining whether the story told by O’Donovan and others is correct would require looking closely at the writers to whom Tierney and Witte call attention, to determine what they regarded as the deep structure of natural rights: did they regard all such rights as derived from God’s commands, or did they regard some of them as inherent.
Whatever be the history, to this writer it appears that rights cannot all be derived from obligations imposed by laws, social practices, commands, promises, and the like. Suppose I address to you a speech act in the grammatical form of a command to perform some act. My speech act generates in you an obligation to perform that act only if I have a prior right to issue that command to you. Absent that prior right, my speech act is nothing other than an attempt to exercise power over you. That prior right on my part might, in principle, have been generated in me by some command issued to me by someone else. But any such chain has to end with someone’s inherent right to issue a command to someone (this argument is developed extensively in Wolterstorff 2008: chapter 12).
3.2 Inherent rights presupposed in scripture
Scripture speaks extensively of God’s commands, and thereby implies a multiplicity of derived rights. But the point just made about prior rights implies that presupposed in Scripture is the existence of inherent rights on God’s part. God has a right to issue commands to us, a right prior to those commands rather than derived from them, hence an inherent right. It is by virtue of God’s excellence as our creator and redeemer that God has the right to issue commands to us.
The biblical writers not only present God as having excellence that require due respect on our part, but presents human beings as having such excellence as well. The psalmist of Psalm 8 can scarcely contain himself when he thinks of human worth. God has placed human beings just a bit lower in the cosmic scale of worth than divine beings (or angels) and ‘crowned them with glory and honor’. God has ‘given them dominion over the works of [God’s] hands’. The psalmist is, of course, echoing the first chapter of Genesis, where God resolves to create human beings in God’s image.
Later in Genesis, in a sentence within the blessing that God pronounces upon Noah and his children, we read,
Whoever sheds the blood of a human being,
by a human being shall that person’s blood be shed;
For in [God’s] own image
God made humankind. (9:6)
The proscription against murder is grounded here not in God’s command but in the worth or dignity of human beings as bearers of God’s image. By virtue of having the dignity of bearing God’s image, all human beings possess an inherent right not to be murdered – and much else besides, of course.
4 Human rights
This observation, that by virtue of having the dignity of bearing God’s image, all human beings have certain inherent rights, leads naturally to some remarks about human rights. So prominent in the contemporary discourse about rights is the idea of human rights that it tends to obscure the fact that human rights are a species of the rights that human beings have, not the whole. So what is that species of rights that are human rights?
Reading through the list of what the various UN documents on human rights cite as examples is an exercise in bewilderment. Among the rights the 1948 Declaration mentions is the right to an annual paid vacation. What could possibly be meant by citing this as a human right when many, perhaps most, societies have no such thing as vacations? It’s impossible to extract a coherent concept of human rights from the examples given. But if we ignore the lists, with all their quirkiness, and pick up on some clues as to how the authors of the documents were implicitly thinking, a more or less coherent concept of human rights emerges.
One clue is how the documents were intended to function. They were intended to function as a critique of extant laws and practices of nations around the globe. What that implies is that human rights are rights that ought to be recognized by the laws and practices of societies whether or not they are in fact recognized. The fact that the documents declare that human rights are grounded in dignity points in the same direction.
Another clue is the word ‘human’. Now and then the term ‘human rights’ is used by writers to single out the rights human beings have in contrast, say, to the rights animals have. That is not the idea here. A student’s right to an A in the course she has taken is a right that a human being has, but it is obviously not an example of what the authors of the UN documents were implicitly thinking of as a human right.
Might the implicit thought of the authors have been that a human right is a right such that the only status one needs to possess the right is that of being a human being – not any type of human being, just a human being? That seems not to have been their thought. The authors of the UN documents were focused entirely on the rights of those human beings who can function as persons in society, not on the rights of all human beings whatsoever, whether or not they can so function. They were implicitly thinking of human rights as the rights of such persons.
But suppose one holds that even those human beings who cannot function as persons in society – human beings sunk deep into dementia, human beings in a coma – have certain rights. Surely such rights should be included under the rubric human rights.
What this implies is that the concept of human rights cannot be explained as the rights one has qua human being who can function as a person in society, because that excludes the rights of those human beings who cannot so function. But neither can the concept be explained as the rights one has just qua human being, because then none of the rights cited in the UN documents would be human rights; all of them are the rights of those human beings who can function as persons in society. Human rights are the disjunction of these. Human rights, so this writer suggests, are best thought of as those one has either qua human being or qua human being who can function as a person in society.
The idea that even those human beings who cannot function as persons in society nonetheless have rights was introduced above as a supposition. What we saw in the preceding section is that all human beings, just by virtue of having the dignity of being created in the image of God, have certain inherent rights, whether or not they are capable of functioning as persons in society. Deep in the Christian tradition, and in the traditions of the other ‘religions of the book’ – Judaism and Islam – is the conviction that all human beings have inherent rights by virtue of each having the dignity of being a creature created in the image of God and being loved by God (O’Donovan 2015; Puffer 2017). Whether secular ways of thinking have the resources for grounding the rights of those human beings who cannot function as persons in society is an open question (this question is explored at length in Wolterstorff 2011: 177–200).
5 Rights and obligations
5.1 The principle of correlatives between obligations and rights
The principle formulated above concerning the relation of obligations to rights was this: If X has an obligation to Y to perform (or refrain from performing) act ø, then Y has a right vis á vis X to X’s performing (or refraining from performing) act ø. The converse is also true: if Y has a right vis á vis X to X’s performing (or refraining from performing) act ø, then X has an obligation to Y to perform (or refrain from performing) act ø. Call the two principles together, the principle of correlatives between obligations and rights. Or for short, the principle of correlatives.
The principle of correlatives naturally raises in one’s mind this question: if obligations and rights are correlative in this way, could rights-talk be eliminated without loss from our moral vocabulary in favour of talk about obligations and duties? In many quarters nowadays, including Christian quarters, there is resistance to thought and talk about rights. The reasons for this resistance are varied (see Wolterstorff 2013: 37–41; and Ver Beek and Wolterstorff 2019: 103–109). But among the most common reasons is the claim that rights-talk is made to order for expressing one of the most malignant diseases of modern society, namely, the mentality of possessive individualism. It’s made to order, so it is said, for an ‘entitlement society’ such as ours in which individuals place themselves at the centre of the moral universe, focusing on their own entitlements to the ignoring of their obligations towards others and to the neglect of those virtues that are indispensable for the flourishing of our lives together. Rights-talk, so it is claimed, both encourages and is encouraged by the possessive individualism of the capitalist economy and the liberal polity. The theologian Joan Lockwood O’Donovan puts the point crisply: ‘the modern liberal concept of right belongs to the socially atomistic and disintegrative philosophy of possessive individualism’ (Joan Lockwood O’Donovan 1998a: 51; for a critical account of O’Donovan and Wolterstorff, see Carlson 2016).
So once again the question: given the principle of correlatives, if rights-talk is commonly abused in this way, why not eliminate it in favour of talk about obligations and duties?
5.2 The language of rights is for bringing to speech the patient dimension of the moral order
A preliminary point to be made in response to this question is that talk about duties is as subject to abuse as is talk about rights. Just as the possessive individualist employs the language of rights to focus on his own right to be treated in certain ways by others to the neglect of the rights of others to be treated in certain ways by him, so too the authoritarian individual employs the language of duty to focus on the duties of others to treat him in certain ways to the neglect of his duties to treat others in certain ways.
The important point to be made, however, is that certain things of great importance would be lost if we eliminated rights-talk from our moral vocabulary. The moral order has two dimensions, distinct but intimately connected, the agent-dimension and the patient-dimension, the dimension of what we do and the dimension of how we are done unto. The principle of correlatives specifies an intrinsic connection between these two dimensions; it does not imply that there is just one dimension with two distinct ways of speaking of that one dimension. Consider an analogy: there is an intrinsic connection between the equality of sides in a triangle and the equality of internal angles; but equality of sides is not the same property as equality of angles.
The language of obligation, duty, responsibility, and the like, is for bringing to speech the agent-dimension of the moral order; the language of rights, of what is due one, of being wronged, is for bringing to speech the patient-dimension of the moral order. That these are indeed distinct dimensions of the moral order is especially clear from the terms we use to describe a violation or breakdown in these dimensions: someone who does not do what they ought to do is guilty; someone who is not treated as they have a right to be treated is wronged. Being guilty is obviously not the same thing as being wronged.
In some situations, it is important to bring to speech the agent-dimension of the moral order by speaking of responsibilities; in other situations, it’s important to bring to speech the patient-dimension by speaking of rights. Consider the abused wife. With the language of obligation and duty she can bring to speech the agent-dimension of the situation, the moral significance of what her husband is doing. He is failing in his obligations to her, his duties, his responsibilities; he is guilty. But she cannot bring to speech the patient-dimension of the situation, the moral significance of how she is being done unto. For that, she needs the language of rights: she is being wronged, her rights are being violated, she is not being rendered what is due her.
It is no accident that all the great social justice movements of the twentieth century, struggling against one or another form of systemic injustice, employed the language of rights: women’s rights, children’s rights, labour rights, civil rights, on and on. It was their use of such language that enabled members of those movements to bring to speech the moral condition of those who were being systemically wronged.
In September 1985 a remarkable pamphlet called The Kairos Document was issued by over 150 theologians and church leaders in South Africa who were participants in the struggle against apartheid. In what they say about ‘Church Theology’, in a section of the pamphlet titled ‘Justice’, the authors point to the difference between the two dimensions of the moral order to which we have been calling attention. They state that those in power prefer to attend only to the agent-dimension, and they explain why it is important to bring the patient-dimension into the discussion. The pamphlet was issued before the abolition of apartheid in South Africa:
It would be quite wrong to give the impression that ‘Church Theology’ in South Africa is not particularly concerned about the need for justice. There have been some very strong and very sincere demands for justice. But the question we need to ask here, the very serious theological question is: What kind of justice? An examination of Church statements and pronouncements gives the distinct impression that the justice that is envisaged is the justice of reform, that is to say, a justice that is determined by the oppressor, by the white minority and that is offered to the people as a kind of concession […] The general idea appears to be that one must simply appeal to the conscience and goodwill of those who are responsible for injustice in our land. The problem we are dealing with here in South Africa is not merely a problem of personal guilt […] We cannot just sit back and wait for the oppressor to see the light so that the oppressed can put out their hands and beg for the crumbs of some small reforms. That in itself would be oppressive and degrading.
There is something else of great importance that would be lost if we eliminated rights-talk from our moral vocabulary. A feature of rights that we have thus far not taken note of is what is sometimes called their trumping force, sometimes, their peremptory force. The idea is this: if you have a right to my treating you a certain way, then, no matter how many good things I might bring about by not treating you that way, I am morally required to treat you that way (a full discussion of this point would require distinguishing between prima facie rights and ultima facie rights; the principle stated holds for the latter, not the former).
The best way to see that rights do indeed have this trumping force is to recall the connection, noted above, between rights and obligations. If you have a right to my treating you a certain way, then I have an obligation to treat you that way. But if I have an obligation to treat you that way, then I am morally required to treat you that way, period, no matter how many good things I might otherwise bring about. Nothing trumps obligation.
The twentieth century was rife with authoritarian regimes pursuing policies that they claimed to be for the greater good over the long haul: Hitler, Stalin, Pol Pot, the Afrikaners. If we do not have available to us the language of rights to call attention to the fact that, no matter how much good such policies might bring about, they are nonetheless morally unacceptable because they are trampling on the rights of people, we have no way of putting the brakes on such (self-perceived) benevolence. The point is relevant at the micro-level as well. All too often, benevolence is extended in such a way as to humiliate the recipients. We need the recognition and language of rights for putting a brake on paternalistic benevolence.
6 Rights in the life of the Christian faith community
6.1 Justice in the social action of the Christian community
Let us bring this article to a conclusion by considering the role of justice in the life of the Christian community, beginning with its role in the daily life of the community and moving on to its role in the worship of the community.
The Christian community has a very mixed record when it comes to listening to the biblical call to act justly and to promote justice in society. One discerns in many quarters a preference for dispensing charity over joining in the struggle for social justice – a preference for alleviating suffering over seeking to undo the cause of the suffering, should that cause be oppression or neglect rather than natural disaster. This preference for charity will, of course, characterize those who understand justice as superseded in the New Testament by love. But there are also reasons rooted in human nature for preferring the dispensing of charity over participating in the struggle for social justice.
The struggle for social justice almost always evokes hostility. Working for social justice requires that one identify those who are engaging in the oppression or neglect, requires that one call them out for it, and requires that one insist that they desist. But they benefit from what they are doing, so they resist the call to desist. And they resent having the finger of moral judgment pointed at them. By contrast, charity seldom evokes hostility. Who could be opposed to supporting the local food panty? Who could be opposed to supporting an orphanage in Honduras?
The mixed record of the Christian community with respect to justice goes beyond a preference in many quarters for dispensing charity over seeking justice. Over the centuries, members of the Christian community have perpetrated – and supported the perpetration – of appalling and egregious acts of injustice. Sometimes they defended what they were doing by appealing to a (distorted) reading of Scripture; that was the case for defenders of South African apartheid, as it was for defenders of chattel slavery in the U.S. South in the eighteenth and nineteenth centuries. Often they made no attempt to offer a biblical defence.
Fortunately, this is not the whole story. Christians who have heard the biblical call for justice have been active in all the great social justice movements of the past couple of centuries – active, for example, in the nineteenth century abolitionist movements in England and the U.S., active in the twentieth century civil rights movement in the U.S., active in the anti-apartheid movement in South Africa.
What also deserves mention here is the story told by Richard Tuck, in Natural Rights Theories: Their Origin and Development (1979), about the development of natural rights theories by Spanish Catholic theologians in the early modern period, and the role played by an appeal to natural rights in the critique, by Spanish theologians and clerics, of the Spanish conquest of South America. What likewise deserves mention is the role played in the formation of liberal democracies by the profusion of discussions of human rights in the writings of the early Calvinists, as detailed by John Witte. Whatever else we may regard as definitive of liberal democracies, liberal democracies are rights-limited polities. The actions of the state are limited by the natural rights of the citizens – limited, above all, by their natural right to freedom of religion, but limited also by their natural right to freedom of speech, to freedom of assembly, etc.
6.2 Justice in the worship of the Christian faith community
In ‘The Holy Eucharist: Rite One’ of the Episcopal Church, ‘The Great Thanksgiving’ begins with the words, spoken by the celebrant,
It is very meet, right, and our bounden duty, that we should at all times, and in all places, give thanks unto Thee, O Lord, holy Father, almighty everlasting God.
When the celebrant says these words, the first-person plural ‘we’ refers not just to the members of that particular assembly, and not just to Christians more broadly, but to human persons in general. ‘It is very meet, right, and our bounden duty as human persons that we should at all times […].’ The declaration that it is our duty as human persons to give thanks to God goes back into the ancient church, occurring often in the Eucharistic prayers collected by Lucien Deiss in The Springtime of the Liturgy and in those collected by R. C. D. Jasper and G. J. Cuming in Prayers of the Eucharist: Early and Reformed.
It is, of course, good and desirable that human beings give thanks to God. But that is not what these liturgies are declaring. They are declaring that it is our duty to thank God. Now recall the principle of correlatives. If it is our duty to give thanks to God, then God has a right to our giving God thanks. In giving thanks to God, we render justice to God.
To the best of this writer’s knowledge, liturgies have traditionally used the language of ‘bounden duty’ only at the beginning of The Great Thanksgiving. But if asked, those who used these liturgies would surely have said that it is also our bounden duty to praise God, to intercede with God, to confess our sins to God, to listen for God’s speech – in short to acknowledge liturgically who God is and what God has done. And that implies, given the principle of correlatives, that whose who perform the prescribed acts of worship are rendering justice to God throughout the liturgical enactment, not just in the Eucharist. Liturgical enactments are corporate acts of rendering justice to God.
There is another way in which justice can be present in a liturgical enactment – and a way in which injustice can be present instead. In his first letter to the church in Corinth, the apostle Paul says he has heard that when they assemble, the well-to-do eat and drink their fill while the poor are left hungry. One infers that the assemblies in Corinth included some sort of potluck and that the well-to-do arrived and began eating and drinking before the slaves and servants got off work. Paul uses striking language in criticizing the behaviour of the well-to-do. No doubt he regarded them as failing in love for their fellow believers; but that is not what he says. He says, ‘you humiliate those who have nothing’ (1 Cor 11:22).
The writer of the New Testament letter of James uses similar language to condemn the favouritism displayed by the seating practices in the assemblies of those whom he was addressing: rich people were given seats of honour while the poor were made either to stand or to sit on the floor. God, says the writer, has ‘chosen the poor in the world to be rich in faith and to be heirs of the kingdom that he has promised […] But you have dishonoured the poor’ (James 2:3–6). No doubt the writer regarded those who organized or tolerated such seating arrangements as failing in love for the poor. But what he says is not that but rather, ‘you have dishonoured the poor’.
Suppose it’s true that treating someone justly consists of treating them as they have a right to be treated. And suppose it is true, as this article has argued, that to treat someone as they have a right to be treated is to treat them as befits their worth. Then Paul and James are both pointing to injustice in the assemblies. Humiliating or dishonouring someone is a patent case of not treating them as befits their worth, and hence not treating them justly. By virtue of how the participants in liturgical enactments treat each other, justice and/or injustice are present in those enactments. The assemblies are to be paradigms of justice.
Justice can also be present in liturgical enactments in the form of prayers for justice and for the undoing of injustice. And it will be present in many of the readings from the Psalms and the prophets, and in readings from the New Testament in translations that do not conceal the references to justice – and in preaching that is faithful to those readings. But rather than elaborating these points, let us close by noting that at the very heart of the Christian liturgy is the remembering of a case of gross injustice – the crucifixion of Jesus – and the worship of him who was the victim. It is ironic that the one who came to inaugurate God’s reign of justice should fall victim to a case of gross injustice.
Death by crucifixion was not only a slow and excruciatingly painful method of execution. It was also shameful. In the Roman empire of the time it was reserved for those whom the officials regarded as despicable: rebellious slaves were commonly executed by crucifixion. ‘You are scum’ was the message. In Judaism the message of crucifixion was different, not ‘You are scum’ but ‘You are cursed’. ‘Cursed is everyone who hangs on a cross’, wrote Paul, quoting Deuteronomy (Gal 3:13; Deut 21:23).
The episode of Jesus falling victim to the appalling injustice of crucifixion is, of course, part of a larger narrative. Christians confess that this same Jesus who died by crucifixion was raised from the dead. Had he not been raised, he would not have been worshipped. Stories about his baffling sayings, his mysterious doings, his painful and humiliating death, might have been handed on; but it was his resurrection that led to his being worshipped. Absent that, there would have been no Christian church and no Christian liturgy.
When one has a clear picture in mind of Jesus’ manner of death, and then reads mainline present-day Christian liturgies, one is struck by how veiled is the presentation of Jesus’ death in most of them. In the Great Thanksgiving of the Episcopal liturgy the celebrant says, ‘We now offer unto Thee [God the Father] the memorial thy Son hath commanded us to make, having in remembrance his blessed passion and precious death, his mighty resurrection and glorious ascension’. Not only is there no mention of the injustice and shame of the crucifixion, nor of Christ’s suffering; the terms ‘blessed passion’ and ‘precious death’ tend to put all thought of injustice, shame, and suffering out of mind.
In his fascinating book, The Cross and the Lynching Tree, the African-American theologian James Cone writes, ‘Black Christians sang more songs and preached more sermons about the cross than any other aspect of Jesus’ ministry’ (Cone 2011: 25). In their songs and sermons, the cross was not prettified.
Though wonderful and beautiful, Jesus’ cross was also painful and tragic. Songs and sermons about the ‘blood’ were stark reminders of the agony of Jesus’ crucifixion – the symbol of the physical and mental suffering he endured as ‘dey whupped him up de hill’ and ‘crowned him wid a thorny crown.’ Blacks told the story of Jesus’ Passion as if they were at Golgotha suffering with him. ‘Were you there when dey crucified my Lord?’ ‘They nailed him to de cross’; ‘dey pierced him in de side’; and ‘de blood came twinklin’ down’. (Cone 2011: 73–74)
Though the injustice of Jesus’ crucifixion is obviously in the background here, it’s his suffering that is foregrounded. In one of the eucharistic prayers to be found in The Apostolic Constitutions (late fourth century), both the injustice of what was done and Christ’s suffering are vividly expressed:
Having brought his entire work to completion, he was betrayed by the man who was corroded by wickedness and delivered into the hands of the impious by the treachery of priests and high priests unworthy of the name, and of a corrupted people. He suffered painfully at their hands, endured every kind of ignominy in accordance with your plan, and was handed over to Pilate, the governor.
He the Judge was judged.
He the Savior was condemned. (Deiss 1979: 233)