Francis Gardom considers that Natural Justice is not just natural

NATURAL JUSTICE is being appealed to with increasing frequency nowadays as the principle upon which certain decisions, some of which have wide-ranging implications, should be taken.

It has been used to advocate the ordination of women as priests, the lowering of the age of homosexual consent, and the teaching of ethnic minorities in their own language.

What is seldom called into question is the validity of the principle. Indeed it is sometimes suggested that the principle is self-evident and therefore examination is unnecessary. Those who make so bold as to cast doubts upon the principle can expect to draw down upon themselves the full wrath of those who regard natural justice as a self-evident principle and therefore a dogma that it must be true.

Experience, however, suggests that the principle “It must be, therefore it is” is a deeply flawed one. Philosophies and theologies have been raised upon this foundation many times, but invariably time has revealed the weakness in their foundations and has necessitated their dismantling and restructuring upon a firmer base.

Let us begin by noting that Nature knows nothing of Justice. The principle of Natural Selection and the Survival of the Fittest as put forward by Herbert Spencer is as good a description of what actually happens when Nature is left to her own devices.

It is true that the phrase “the survival of the fittest” is widely misunderstood to refer to physical fitness or robustness of health. At the time that Spencer coined the phrase it had never held this meaning. Spencer used the word “fit” to describe the ability of a creature to fit or adapt itself to the environment in which it finds itself, or alternatively to manipulate the environment in such a way as to be conducive to its own survival. Those creatures survive longest, Spencer maintained, who best manage to achieve one of these ends.

Put this way the principle becomes a good deal more acceptable to modern ears. So far from suggesting that the strongest will always survive at the expense of the weakest the determining factor in survival would seem to be a willingness and ability to adapt. To believe this is no more morally repugnant than to believe in the Law of Gravity. Whilst the operation of both Laws can have tragic results, neither Law in itself is either morally good or bad. They simply describe what actually happens in a wide range of circumstances.

So what do people mean when they talk about “natural justice”? Clearly they are not referring to the way in which Nature itself works, because Nature doesn’t have any choice in the matter. Natural Justice must therefore refer to some kind of human construct which has developed with the process of civilisation. The more civilised a nation then presumably the more attention it will pay to such concepts as Natural Justice.

But why should the claims of Natural Justice (whatever they may consist of) be preferred above the claims of patriotism, tribe, clan, family, or even one’s own sense of self-fulfilment? There will clearly come a time when one or more of these claims will be in conflict with another. Upon what basis, therefore, should the relative imperative of these claims be evaluated?

It is no use appealing to “nature”. A man will naturally attend to the claims of his family, his children, his wife, and certainly himself long before he starts thinking about the claims of Natural Justice. So, whatever it is, Natural Justice is not something which happens “naturally” that is, of its own accord. If its claims are to be invoked in a given situation then it is necessary that the parties involved should have progressed a long way beyond the “natural”. Some of us would claim that without the supernatural (i.e. some belief in God or gods) concepts such as Justice won’t even get a look in. But the sternest advocates of “natural justice” will have none of that. It is something, they insist, which many people, perhaps everyone, can be brought to recognize, and, having recognize it, to place at the summit of his or her moral programme.

But the problems of the Natural Justifier do not end there. For in the pursuit of this supposed desideratum they are frequently forced to the recourse of tilting the table in favour of those who are disadvantaged.

Now, there may well be circumstances in which a degree of table-tipping is advantageous to society as a whole; but to admit that is tantamount to saying that Natural Justice is not the ultimate arbiter of what should or should not be done.

Let us take an example. Imagine a child who shows extraordinary promise as a keyboard-player. If this child is from a comparatively poor or disadvantaged background the likelihood is that he or she will be unable to develop this talent. Natural Justice suggests that they should be given the opportunity and encouragement which will make it possible for them to do so. Therefore a piano (say) is provided, and lessons are paid for. But by these very acts the principle of Natural Justice is fatally compromised. What is rightly being done for this child is different from what is being done for the children who lack this particular talent. Money and resources are being provided precisely because this child is seen to be exceptional; those who are not seen in this way are destined, for the most part, to live in a piano-free environment.

It takes little thought to discover that the principle of Natural Justice is being violated over and over again by the very people who invoke it. And rightly so. Since it is the case that women are generally less tall than men, the minimum height regulation for WPCs as opposed to their male counterparts is less by several inches. Hence a man who wishes to be a policeman, and could probably do as good, or a better job than many women of the same stature is rejected precisely because he is a man.

Those who invoke the mantra of Natural Justice for the particular cause which they are espousing are making a rod for their own backs. For as often as not the question to which we are seeking an answer is simply not patient of being seen as a question of Natural Justice.

Take, for instance, the question of the ordination of women as priests. The appeal to Natural Justice was, and still is, frequently made as if it were the end of the matter. But just supposing that God’s plan for his Church included an all-male priesthood (as his plan for procreation involves, at least on the natural plain, an all-female motherhood). It is useless in this matter to apply a principle such as Natural Justice in the hope that it will work. It is just as likely to produce the wrong answer as the belief that all men being equal should result in every child being given a free piano whether he or she has shown any musical proclivities or not.

In the same way, the equalising of the age of sexual consent for homosexual with heterosexual relationships might (or might not) be an appropriate legal innovation. What is certain is that any appeal to equality is entirely misguided. Heterosexual relationships are, amongst other things, the means by which the human race is continued; homosexual relationships have no such goal. They may be conducive to pleasure, happiness, fulfilment or, as some of us suppose, to misery, frustration and ultimate damnation. What they are in no way concerned with is progeneration.

We are therefore being asked to compare two different classes of action and declare that because the one is “right” under particular circumstances, the other in the name of Natural Justice must be right as well. But a moment’s thought will reveal the flaw in this argument. For if the rightness of one action guarantees the rightness of another related but totally different action on the grounds that their similarity implies (via Natural Justice) their identity, then (for instance) female circumcision should be equally available as its male equivalent. There may well be those who don’t want either, just as there are those for whom sexual intercourse is not their cup of tea. But if there are those who claim to want either of these procedures for the welfare of their children there would seem to be no good reason for granting it in the one case and withholding it in the other.

But if Natural Justice’s foundations can be seen to be defective in this particular respect, what reason is there for supposing that they can be trusted in any other respect? The short answer is “none!” Every single case in which the principle of Natural Justice might be invoked needs to be tested by other criteria to see whether its diktats are sound or not.

In practice every sensible human being recognises this whenever they make a decision upon a particular course of action. They may ask themselves questions such as “Is this wise?”, “is this lawful?”, “is this dangerous?” or, in the case of a believer, “is this in keeping with the revealed will of God?”

The one question which is seldom if ever asked is “is this naturally just?” A man may accept the offer of a new job, a woman may accept a proposal of marriage, a child may accept an invitation to go to a party, and the consideration will turn about such matters as “is it secure?”, “will I be happy?”, or “will I enjoy myself?”, without giving the slightest thought to the question as to whether accepting or declining such an invitation has any element of justice about it. The fact that A accepts the proffered job and B accepts the offer of marriage effectively preclude someone else from doing the same thing — they are, in other words, deeply unjust actions by their very nature. Yet nobody in his right mind turns down the offer for this reason, though they may well do so for others.

So is there any place left for Natural Justice in the scheme of things?

The answer is “Yes” but only when Natural Justice has ceased pretending to be the god-who-must-be-obeyed in preference to any other force which may be claiming our obedience.

It is true that God prefers righteousness to injustice; but God’s righteousness may be several light-years removed from what the world understands by “justice”. For the justice in which God is interested is not necessarily something which the world can easily take on board.

God’s justice is of course exemplified on Calvary, an example of in-justice the likes of which the world has never seen before or since. Yet lying behind the Cross we have the image of a Lamb “slain before the foundation of the world”. That is the supreme example of justice of which things like Natural Justice are only pale imitations.

It is only when the world has come to take the essential paradox of Divine Justice and Divine Mercy seriously that concepts like Natural Justice can come into play. Then they are indeed the paradigms of Ultimate Reality; but detached from God’s Righteousness they are demons who will ultimately destroy us and all that we profess to believe.

Francis Gardom is Assistant Priest at St. Stephen’s Lewisham in the diocese of Southwark and Honorary Secretary of Cost of Conscience.