Guest Entry By Raymond Koehler
My initial enthusiasm at being invited to write a piece for my brother’s law blog quickly turned to concern. I am a Latin teacher, not a lawyer, and although I often find myself citing my brother in defense of my subject before the incoming hordes of freshmen – twenty-seven to a class – I find my victories only fleeting. You see, I teach at the only school in New Haven that requires a year of Latin for graduation. After subduing the cries of “it’s a dead language” and “we’ll never use it,” I say with as much dignity as I can muster: “My brother, who is a lawyer, said that his two years of high school Latin were the most valuable he ever took. He says they prepared him not just for college, but for life!”
My students look at me quizzically for a moment, weighing this new argument as they visibly size up just who this new witness for my defense is. Then one or another of them renews the attack and I go home quoting my younger brother to myself in an effort to convince myself of the value of my subject. This is not always an easy thing for an older brother to do.
The truth is I never really thought about the value of Latin. I just studied it, along with ancient Greek, for itself. But now that I have so generously been afforded this new forum in which to build my defense, it would be a waste if I did not at long last try to do something useful with my classical education. Therefore, not only will I use this opportunity to put together a stronger case against my students, I will attempt to have an effect on the minds of those who make up our modern legal system, especially my frater, through meaningful connections between legal ideas as we think of them today and the actual Latin words used to preserve them. Of course in today’s world of education a sine qua non for any language instruction is an exploration of the lives and culture of those who use that target language. I suppose that principle must be applied equally now not just to living languages, but to dead ones.
As I am now thinking of this as the first in a series of entries, it seems obvious that the best place to begin is not with technical legal terms, but with a simple look at the Latin word for justice itself – iustitia. When my students can’t find it, it is usually because they are looking under the wrong letter of the alphabet. It wasn’t until the 17th century that the letter “j” was established to separate the two uses of the Latin “i,” one as a vowel and the other as a consonant. Hence the 10th letter of our alphabet and hence I will use justitia from now on when talking about that condition or state of what is right or lawful – even if my students must still remember to look it up under “i.” Presumably all relevant law dictionaries were published post -17th century.
The most popular Latin phrase containing this word is Fiat Justitia Ruat Caelum. This maxim on the urgent necessity of justice was discovered first not by myself, the Latin teacher, but by my brother, the law student. He called home and shared it with the man who had, so many years earlier, forced Latin upon him — our father. “Let Justice prevail,” our father translated, “though the heavens may fall.” Besides being a good phrase for teaching the hortatory subjunctive (Let Justice be done) and the potential subjunctive (though the heavens may fall), it is a great umbrella philosophical statement under which any future entries (my brother willing) might fall.
My brother, it turns out, was not the only one to embrace these words in part or as a whole. Fiat Justitia appears at the bottom of the 1835 portrait of the Chief Justice of the United States John Marshall by Rembrandt Peale, which hangs in a conference room at the Supreme Court Building in Washington. It is also the motto of the Massachusetts Bar Association, appearing on the official seal of the institution. The maxim in its entirety, historians claim, was applied to fathers other than my brother’s and my own, such as those who inspired the American colonies to break from the British crown. Then years later, in 1933, Judge James Edwin Horton quoted it when explaining why he made his decision to set aside the death sentence of Haywood Patterson, a black man wrongfully convicted of raping two white women in Alabama, although he knew it would be the end of his judicial career. Fiat justitia caelum ruat even finds its way into movies, such as the Oliver Stone 1991 film JFK in which New Orleans District Attorney Jim Garrison (Kevin Costner) uses the phrase during his investigation into the assassination of President Kennedy.
I was thus surprised that this quote, when I called my brother to tell him what I was doing, failed to elicit that same enthusiasm it had years ago. It is understandable, of course, that a student’s ideas, formed as they sometimes are in the ivory tower, lose some of their ideological purity when tested in the various arenas of real life, and there had been a number of years (I won’t say how many) intervening between school and current practice. Nevertheless this led me to look further into the origins of this saying and, to my own surprise, my investigation turned up two separate origins that had at some monumental historical moment come together.
The tail end of the first thread is a story we are probably all familiar with from our own childhood – the story of Chicken Little. This story goes back to Aesop’s Fables and the fable “The Sky Is Falling.” This theme also appears in a passage from Terence, a Roman playwright of the 2nd century B.C., suggesting its popularity among the early Romans. Of course we can also recall images from our early study of Greek mythology where Atlas, supporting the sky on his shoulders, tries to trick Hercules into performing this duty for him. But my favorite reference goes back to the campaigns of Alexander the Great. According to the story, when Alexander asked several ambassadors of the Celtae — tall, haughty men from the Adriatic Sea — what they feared most, they responded “that the sky fall on our heads.” Unless we look upon these “barbarians” as childlike in their conception of the universe, one can conclude they were directly insulting Alexander’s power by saying that nothing, short of a total destruction of nature, could harm them.
To look at the first thread of this maxim, Fiat justitia, I would like to relate a story told by Seneca, a Roman philosopher and dramatist who, by the way, was also entrusted with the moral training of Nero during that emperor’s early education. In his treatise De Ira (On Anger), Book I, Chapter XVIII, Seneca ells of Gnaeus Piso, a Roman governor and lawmaker who, angered by the news that a soldier had returned from his leave of absence without his comrade, ordered his execution. Leaves were granted in pairs throughout the Roman empire for obvious reasons of safety, and the grounds given for such a sentence was that if the soldier could not produce his companion, he could be presumed to have killed him. However, in this story it so happened that, as the condemned man was presenting his neck to the executioner, the comrade who had been presumed murdered, suddenly appeared. The centurion overseeing the execution stopped the proceedings right there and brought the condemned man back to Piso in anticipation of a reprieve. The Roman governor, however, ordered the execution of all three soldiers, the first because his sentence had already been passed, the second for failure to perform his duty in carrying out the original execution, and the third, the man who had just returned after being presumed dead, because he was the cause of the death of two innocent men.
This application of “Justice” in the pursuit of Justice, or even justice, where the use of principals perhaps technically correct result in something so obviously wrong, has most likely been played out in modern arenas as well. Such dramatizations of Fiat iustitia, I will wager, are responsible for this second, negative interpretation of Fiat iustitia ruat caelum and the reason that the Latin maxim which my brother had enthusiastically called home about so many years ago had lost some of its luster.
So what, then, is justitia? How does one find it when watching students turn over their bookbags to be searched every morning as they enter school and go through the metal detector? Is this the justice that came from the prosecution of Eric Harris and all those other children who harmed their schoolmates, teachers and themselves? Or do we try instead to bring to justice the doctors of such students who should have known that the administration of such chemicals as, in Eric’s case, luvox, to someone a little out of touch with reality might very well lead to such atrocities.
I think that if there is an answer it goes back to the confusion between ethics and justice that is now even preserved in dictionaries but which can be cleared up if we dig out the origins of these words. Ethics comes from the Greek word ethos meaning “character.” Justice, we already know, comes from the Latin adjective iustus meaning “right,” which comes from the Latin neuter noun ius, iuris meaning “law.” We can imagine a group of early people, whether the early Greeks, Romans or those barbarian Celtae living near the Adriatic Sea, all engaged in the activity of living. In fact, I would bet that their natural “character” was such as to make them engage in activities leading not only to their survival as individuals but to that of their families, groups and maybe even the entire human race. But what do you do when people begin to act “unethically” or “out of character?” When they actually bring harm to themselves, their family or their group? The first step, it seems, would be to, using reason, re-establish the person’s own ethos, to help him or her “find him- or herself” again. But ethics, being natural, cannot be forced on one. If it is, it is not ethics but justice. And so it is here, out of the labor pains of getting others to apply ethics to themselves, that justice is born. When reason fails and an individual can no longer engage in ethical behavior voluntarily, then the group in fact must take action if it is to persist and so justice systems spring up — like the goddess Minerva who sprang fully armed from Jupiter’s head — in every corner of the earth. The trouble is, of course, as evidenced by our story of the Roman governor Piso, when applied by a man of anger or one not of good will, justice soon becomes “justice” and another civilization goes by the boards.
So what does this all mean? In my imagination I can picture warring factions all led by men not of good will reducing our planet, in the name of justice, to a smouldering pile of rubble. In this same fantasy I hear some sky god, perhaps Jupiter, laughing jovially before pronouncing from Mount Olympus (in Latin of course), “Fiat iustitia ruat caelum.”
But to be honest, I have another picture in mind for how I would use this Latin maxim. You see, I imagine my students – raw and uncultured as they may be – someday all making it to Latin III. When they do, I will have to solve that Latin teacher’s problem of how to teach them the formidable Latin Result Clause. As all empires, even that of the mighty Romans, have come crashing down for the lack or misapplication of iustitia – or justitia – my success depends on two things. Firstly, it depends upon men and women of good will, such as my brother and sister-in-law, preserving justice long enough so that the sky does not come down before I fulfill my goal. Secondly, I must modify the Latin maxim slightly, from Fiat iustitia ruat caelum to Fiat iustitia ut non ruat caelum, or “Let Justice prevail so that, as a result, the sky does not fall!”
Men and women have dreamed dreams greater than mine. I draw comfort from the fact that the same conditions necessary for me to accomplish my goal are a vital necessity if those of greater aspirations are to fulfill theirs.