Homo juridicus – Henri de Lubac (1943)

It is easy to make fun of the homo juridicus, “the man who has rights, who thinks only of his rights”, the man “whose arrogant vapidity, seated as queen over the universe, has forgotten that heroic ecstasy of the being who receives or who conquers something gratuitous, mysterious, virgin”. The joking is, of course, not without purpose, and it is not bad to recall that right, even incontestable right, is not everything. But in portraits of this kind, a little talent is enough to make the irony carry farther, perhaps, than one had foreseen. Make fun, then, as much as you wish, of that insupportable and ridiculous being who always claims what he calls his due. Who would want to take up his defense? But fear, too, to introduce, by this bias, a criticism of right itself. It can become an idol, but it is nonetheless a sacred thing. When I read, from the same ironic pen, that “the instinct of right kills love”, when I see that through false antitheses one risks inspiring, in the name of a “heroic politics”, the scorn of a politics based on justice, I cannot help being uneasy. I think the expressions at least are unfortunate, and I wait for expressions to balance them. When, in addition, I hear the ideal exalted of those “warriors of long ago” who proceed “in pursuit of some unforeseen favor, edged with danger, of a destiny higher than man, which can give everything to everyone but which owes nothing to anyone”, it seems to me that there is something nonsensical in that, which is perhaps not an indication of a happy encounter with the true. [1]

We know the violent reproaches that were addressed in the course of the last century to the Christian doctrine of love. People like Proudhon and Renouvier accused it of being contrary to justice. This was to make a surprising mistake about its authentic tenor and to misunderstand the very demands of charity.[2] Are we going to revive this quarrel and give these reproaches an appearance of reason by taking up on our own account the opposition of two virtues? That would certainly not be any more to the profit of love than to right! Can one, moreover, think that the hour is very propitious for this arraignment of the “instinct of right”, when the world is at this point in total disorder because of its failure to appreciate it? If one feels a desire to imitate–or counterfeit–the curse launched by Péguy against the modern world, other points of application would be, it seems, more happily chosen.

Since the Nietzschean intent runs through this “heroic” prose that bewails “the coming of right”, let us oppose to it that authentic thought of Nietzsche, whom Minerva did not fail to visit occasionally: “In truth, no one has a higher degree of right to our veneration than the one who possesses the instinct of justice and the power to accomplish it. For, in justice, the highest and rarest virtues are united, as in an unfathomable sea that receives rivers from all sides and absorbs them into itself.”[3] Since the epoch of “ancient heroes” is evoked with regret, let us refer to those ancient times, let us reread the Gorgias and the Republic, as Father Festugière recently invited us to do, let us listen to the divine Plato affirm to us “that there exists a justice that is ever true, ever valuable, independently of human circumstances that assure its triumph and defeat in turn, and that the just in the gallows, tortured by the hangman, is happier than the unjust victor, because he possesses the sole absolute Good, which does not perish.”[4] Which of us would wish to scorn such a teaching as conveying an already “modern” sound? Let us say, rather, with several Fathers of the Church, that it is already Christian before the term existed. And since we are finally among Christians, since those who address us are Christians like us, let us read ourselves, and let us invite them to read with us, the Message that Pius XII addressed to us this last Christmas.[5] None of us, undoubtedly, will be tempted then to speak derisively any more. . . . “For social life”, said the Pope, “to attain its end, it is essential that a juridical statute serve it as an external support, as refuge and as protection.” The primary thing to promote today, he also said, is “respect for the practical exercise of the fundamental rights of the person”. Finally, he reminds us, with an insistence that is all the more lively as this truth seems today the more threatened, even in the consciences of believers, that Christian doctrine

does not allow alternatives: love or right, but the fruitful synthesis: love and right. In both, the twofold irradiation of the same spirit of God, reside the program and the mark of the dignity of the human spirit; both are mutually integrated, cooperate, animate each other, support each other, give each other a hand in the life of concord and peacemaking: right clears the way for love, love tempers right and elevates it. Together they make life ascend into that social atmosphere where, notwithstanding the deficiencies, the obstacles, the harshness of this earth, a fraternal community of life becomes possible.

We well know–unfortunately we need only open our eyes!–that the world is not ruled according to these principles (the Pope knows it undoubtedly as well as we all do!). We know, too, that contestations of rights often generate wars. That justice without love is a lure, and that the pure defense of acquired rights will never be right in opposition to life. Nor are we unaware of cynicism or hypocrisy, we are blind neither to the distortions nor to the caricatures. But is the acknowledgment of evil a reason to blaspheme the good? And can the very extent of its ravages be a motive to discourage us from bringing the remedy for it?

From a juridical organization willed by God flows for man the inalienable right to juridical security and, in consequence, to a domain of well-defined right, protected against any arbitrary attack. 
The relations of man with man; of the individual with society, authority, civic obligations; the relations of society and authority with individuals must rest on a clearly specified juridical basis and be entrusted, at need, to the safeguard of judicial authority.

Pope Pius XII

[1] Cf. Gustave Thibon, quoted by the Cahiers de sainte Jehanne, February 1, 1943. It is undoubtedly not misunderstanding; it is rather, it seems to me, a very acute and exacting sense “of the just and of the unjust” that at times pushes Mr. Thibon to his excesses. He is a remarkable detector of illusions, a little in the manner of Guilloré. But this sort also contains its illusions.[1] Cf.
[2] Gabriel Madinier has proved this perfectly against Charles Renouvier, in his fine book Conscience et amour. In what concerns Proudhon, cf. Du vrai réalisme (1943.)
[3] Nietzsche, Unzeitgemässe Betrachtungen, no. 2.
[4] André-Jean Festugière, Le Sainteté (1942), 116.
[5] Radio message on Christmas Eve 1942. “At the present time”, the Pope also said, “the juridical sense suffers frequent and grave attacks. . . . To remedy this situation, it is necessary to reconfirm the value of the fact that the juridical foundation is the sovereign domain of God; that the juridical order eludes the arbitrariness of men; that its power of protection and repression extends to the indefeasible rights of man and defends them against the attacks of any human power whatsoever. From a juridical organization willed by God flows for man the inalienable right to juridical security and, in consequence, to a ‘domain of well-defined right, protected against any arbitrary attack’.” This “Christmas message” can now be read in the translation with commentary just given in Renouveaux (March 1, 1943).

[This essay can be found in Theology in History, pp. 502-504]