III REALISM & DECONSTRUCTION
The formalist approach to justice was traditionally justified by the need to discover and maintain rules and principles that could be applied impersonally, without fear or favour, on the basis of the principle of equality before the law. For formalists, it was believed that to develop a just legal system the subjection of all to the ‘rule of law’ as well as the reluctance to make any exceptions would be indispensable. This was felt to express the inner meaning of justice, that the same rules be applied to everyone. It was this idea of formalised justice that generated scepticism from legal realists who had a pragmatic attitude to justice as they believed it to be an unattainable idealisation of law. Realists believed that the legal process cannot guarantee that just solutions will be delivered for every problem due to the human fallibility of judges and juries, as well as the indeterminacies that are present in any real legal system. What realists were trying to expose and dissolve was the illusion that a sophisticated modern legal system, perfectly formalised and idealised, is the perfect vehicle for legal justice. Jerome Frank, a legal realist and fact skeptic, believed that if justice is to be real, it has to be individualised to the circumstances of each concrete case. He believed that the superior aspect of justice is found at the very heart of the law because, as against Aristotle, it would be ‘wiser to go to the other extreme and to say that the law is at its best when the judges are wisely and consciously exercising their discretion, their power to individualise cases’.
Jacques Derrida, the so-called ‘father of deconstruction’ also supported this view. He believed that justice ‘is not simply outside the law but is something which transcends the law’. Derrida suggests that in order for law to be law it must speak in the name of justice. He argued that justice is a process that needs to consider conditions, context and strategy. Therefore, there are no rules to govern a ‘just response’. Derrida disputed that a just response needs to be invested each time and at each moment within the singularity of a situation. Derrida suggested that ‘[j]ustice is the inexpressible horizon beyond law – a phenomenon which is irresistible to, and yet immune from, reduction into a set of judicial computations’. For Derrida, justice is a deconstructive attitude to law: it is the opportunity to reconstruct and reinvent the law. He asserts that each case is unique, that each decision is different and requires an absolutely unique interpretation, which no existing coded rule can or ought to guarantee absolutely. Judges need to take into consideration the constantly changing demands of society to ensure that the law adheres to the current political and social climate in order to achieve justice. From a modern perspective it could be seen that Derrida’s interpretation of law and justice is certainly evident in the progression of our laws in Australia. Laws need to keep pace with the constantly evolving society. If judges were unable to influence the law, the law is in danger of becoming an archaic, stagnant system stuck in the dark ages.
III UTILITARIANISM
Another approach to justice is outlined in the utilitarian movement by more modern academics such as Jeremy Bentham and John Stuart Mill. They believe that a law is just if it benefits the majority of people even if it results in injustice for the minority. Proponents do not only have to look at the law, but also take into consideration the consequence of the law to see if the outcome is just towards society for the greatest number of people. In a modern day context, contemporary policies and legislation frequently consider community welfare and the ‘common good’, which is a direct influence of utilitarian concerns.
Critics of utilitarianism argue that the theory may be used as a justification for unethical action. An example of this would be the detainment of an innocent person for a suspected terrorist plot in an effort to calm public fears of future terrorist activity and restoring confidence in law enforcement. This would be seen as an action that would maximise the overall public ‘good’, and one that can be justified on utilitarian grounds. However, few would argue that such an action is ethical. In this way, utilitarianism may be able to ignore issues of justice and individual rights.
IV SOCIAL CONTRACT THEORY
American jurist John Rawls, a contemporary critic of utilitarianism, derived his ethical principles in A Theory of Justice. He believed that ‘justice is the first virtue of social institutions’. His theory is concerned primarily with distributive justice, thus seeking to design an approach that will provide a guide for the governing of the distribution of benefits and burdens inherent in society. The distributive theory is an outcomes-based theory of justice, and measures justice according to how well it delivers in reducing inequality. It is thus an egalitarian theory to the problems in society. One of his main explicit purposes was to promote a coherent alternative to utilitarianism as a general moral theory as well as a theory of obligation. The overall aim was to create a theory of substantive justice rooted in the contract tradition.
The Utilitarian approach that had preceded Rawls sought to offer a moral theory (the ‘good’) and a theory of justice (the ‘right’). In the utilitarian theory, the moral worth of an action was to be distinguished according to its contribution to overall utility, as the name suggests. Furthermore its sum total to all persons measured in some way according to net pleasure, or happiness, that being ‘the greatest good for the greatest number’. Rawls theory, on the other hand, drew on the rationalist idea of ‘social contract’ advanced by Locke, Rousseau and Kant. ‘Rawls accepted a need to identify determinate communal criteria for justice and argued that in ethics, objectivity on the bases of agreement creates the necessary preconditions for a just society.’ Rawls theory therefore only provides a solution of justice, individual morality is not considered, only social justice. Rawls takes a pluralist attitude to that of the ‘good’ because, as he rightly observes, in a society such as ours, there are so many diverse conceptions of morality due to differing race, religion and background, and that a universalist approach must require such if an attempt is to be made not to violate the rights of people within society.
Rawls further argues in A Theory of Justice that utilitarians have their priorities in the wrong order. He argues that by focussing only on the sum of utility, inequality in the distribution of the benefits and burdens is overlooked. Individuals’ concerns are subordinate to finding efficient means of allocating scarce resources to people with conflicting and different preferences, needs and interests. Justice in the utilitarian scope leaves open the possibility that individuals’ rights may be overridden due to the preservation of no principled protection of individual rights.
V POLITICAL AND SOCIAL THOUGHT
Agnes Heller, a Hungarian philosopher who was initially a prominent Marxist thinker but later merged into a more liberal, social-democratic position, introduced a broad, though in-complete, ‘ethical-political concept of justice’. In her view ‘justice is not simply about principles of distribution; it concerns the perspectives, principles and procedures for evaluating institutional norms and rules’. Heller suggests that justice is a key to citizenship in which persons deliberating about problems confront them collectively in their actions without domination and with mutual tolerance of difference. Iris Young expands on this notion of justice, concluding that ‘the concept of justice coincides with the concept of the political,’ and while it is not identical with concrete realisation of these values in individual lives, justice is attentive principally ‘to the degree to which a society contains and supports institutional conditions necessary for the realisation’ of the values of equal worth as these are promoted or confined in a society’s basic institutional arrangements. Despite these broad and encompassing views of justice, the fact remains, as Aristotle asserted, that ‘justice is generally thought to be involved in the more limited matters of procedure, punishment, and recompense’. Therefore, while law in its legislative moments might share with other social institutions certain distributional objectives, it is this reason that law has a separate and distinctive tie to justice, located conspicuously, though not exclusively, in matters of form and process.
V CONCLUSION
It is evident that there exists a variety of theories relating to justice and its relationship with law. The way theorists treat the varying relationships of law and justice neither demands nor issues in an idea of the just society in general; rather, theorists allow for ‘a multitude of conceptions of justice, each derived from the particular condition’. The defining feature of the concepts of justice animating their theories is found in their attention to the structural and institutional relations of society and its totality. Laws, on the other hand, distribute responsibility. They create rights and duties, and provide rules for conduct and social ordering. Justice is certainly inherent in law, but as Derrida asserted ‘justice is not another normative order existing on a different plane from law: rather it becomes possible only through the existence of law’. It is therefore evident, that even in a modern day context, the understanding of what is just and unjust will vary due to the wide interpretations of the relationship between law and justice. What is certain is that in a liberal democracy like Australia, the formal processes and ‘rules of law’ that are currently in place within our legal system, are there to ensure that our society is governed by a judicial system that provides substantively ‘just’ outcomes.
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Sarat and Kearns, above n 1.
Anne Schillmoller, LAW00520 The Philosophy of Law Study Guide (Southern Cross University, 3rd ed, 2011) 120.
Margaret Davies, Asking the Law Question; The Dissolution of Legal Theory (LawBook Co, 3rd ed, 2008) [325].
The Open University, Rights and Justice in International Relations (2012) <> at 12 May 2012.
Schillmoller, above n 7, 90.
Schillmoller, above n 7, 93.
Davies, above n 8, [495].
Davies, above n 8, [495].
Jerome Frank, Law and the Modern Mind (Stevens & Sons, 1930) 31, in Tebbit, above n 4, 31.
Jacques Derrida, ‘The Force of Law: The Mystical Foundation of Authority’ in Drucilla Cornell, Michel Rosenfield and David Gary Garlson (eds), Deconstruction and the Possibility of Justice (Routledge, 1992) 3-67.
Maria Dos Santos-Lee, ‘The Law of Law’ (1998) 4 Law Text Culture 154, 170.
Schillmoller, above n 7, 69.
Edward B Elliott, ‘Beautiful Day: Awakening to Responsibility’ (2002) 13(2) Law and Critique 173.
Schillmoller, above n 7, 212.
Jacques Derrida, ‘Force of Law: The Mythical Foundation of Authority’ (1990) 11 Cardozo Law Review 919 in Schillmoller, above n 7, 212.
Schillmoller, above n 7, 82.
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Schillmoller, above n 7, 65.
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Schillmoller, above n 7, 65.
John Kilcullen, Ralws: Decisions in the Original Position (Macquarie University, 1996) <> at 10 May 2012.
Agnes Heller, Beyond Justice (New York, Basic Books, 1987), 54 in Sarat and Kearns, above n 1, 5.
Sarat and Kearns, above n 1, 5.
Heller, above n 43, 260-270 in Sarat and Kearns, above n 1, 5.
Iris Young, Justice and the Politics of Difference (Princeton University Press, 1990) 34.
Aristotle, Nicomachean Ethics (Indianapolis, Hackett Publishing Co., 1985) Ch 5 in Sarat and Kearns, above n 1, 5.
Sarat and Kearns, above n 1, 5-6.
Iris Young, ‘Toward A Critical Theory of Justice’ (1981) 7 Social Theory and Practice, 297 in Sarat and Kearns, above n 1, 12.
Ibid, 282, in Sarat and Kearns, above n 1, 12.
Jack Balkin, ‘Being Just with Deconstruction’ (1994) 3(3) Social and Legal Studies 428, 16.