THE RELATIONSHIP BETWEEN LAW & JUSTICE: A PHILOSOPHICAL PERSPECTIVE

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THE RELATIONSHIP BETWEEN

LAW & JUSTICE:

 A PHILOSOPHICAL PERSPECTIVE

I  INTRODUCTION

A significant theme that has occupied the terrain of legal theory is the relationship between law and justice, specifically the tension between formal legal processes and ‘rules of law’ and the achievement of substantively ‘just’ outcomes in individual cases. Law and justice are not synonymous. ‘Justice is a fundamental value which monitors the scope and content of the law.’ It functions as a catalyst by which laws are enacted, amended, or abolished. The concept of justice is one of the most prominent theoretical notions in jurisprudence and is a regular feature in the common discourse about public life. It is a concept that is readily understood, especially in the context of its negation, ‘injustice’. Justice is a fundamental ethical concept, and is one that can be ascribed in situations involving consciousness, rationality and moral sense. Law, on the other hand, is seen as an instrument of achieving justice. Commentators from Plato to Derrida have called law to account in the name of justice, to ask that law provide a language for justice, and demand that it promote, insofar as possible, the attainment of a just society. This essay will focus on the relationship between law and justice. It will explore the different philosophical perspectives that have developed throughout the history of legal theory regarding what is meant by the term justice and its relationship with law, and will reflect on a modern interpretation of the relationship between the two.

II  NATURAL LAW, FORMALISM AND THE ‘RULE OF LAW’

One of the fundamental tenets in which scholars have examined the relationship between law and justice is the theory of natural law, primarily examined by philosophers such as Aristotle and Saint Thomas Aquinas. Aristotle proposed that the meaning of justice is based upon the premise that a just law will allow citizens to fulfil their potential in society. He distinguished between distributive and corrective justice and believed that distributive justice should aim to achieve proportionality, while corrective justice should correct unfairness and restore equality.

A principle of distributive justice specifies how rights, goods and well-being should be distributed among a class of people. The root idea according to Aristotle, is that of ‘treating equals equally’, and that the equality and inequality of status and entitlements between individuals is paramount. In direct contrast, when one looks at both civil and criminal corrective legal justice, the ideal of universal equality before the law is assumed. This concept of equality before the law is one of the fundamental notions that underpin the ‘rule of law’, and is one which is derived from the liberal insistence on the equal value of individuals. This equality in status between individuals who may be unequal in social standing or personal resources, is a consequence of one of the primary principles of formal justice, that ‘like cases should be treated alike’. For formalists, justice in all kinds of human transactions should be measured effectively and these particular transactions must be governed by rules that are applied with as much consistency as possible.

Formal justice is seen to be a ‘scientific jurisprudence which regards law’s ideal conditions as a series of rules, not informed by moral discourse, but simply as a matrix of rules evolving from a series of cases and statutes’. Margaret Davies believes that the formal approach to determining legal issues assumes that the law is a closed logical system, one that does not look outside the law to resolve legal questions. The legal solution, in other words, may not always be what we call a “just” one, and the formalist argument in particular, is that legal solutions can and should be determined without having regard to justice or morality. This is one of the meanings of the phrase ‘justice according to law’. It is generally held that judges, particularly in respect of the doctrine of binding precedent, are not free to arrive at what they in their conscience or individual wisdom believe to be the best decision; on the contrary, they are constrained to find the “just” decision within the law. It could therefore be assumed that the formal conception of legal justice appears to run against the grain. It portrays an abandonment of real justice, that being one which should certainly take account of the full context and circumstances of a legal dispute or crime. Yet justice in our modern day terminology is considered to be a moral and political “thing”. It is hard to think that one could be afforded justice without any moral or political considerations. Davies asserts that many judgements are in fact based on policy, changing notions of public morality, and expediency, rather than purely legal reasons. This is because judges are people and not machines, and it would be logically, socially, or humanly impossible to make a decisions which exclude their social conditioning and moral values.

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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 ...

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