Law as a form of justice

Law as a form of justice MILOŠ VEČEŘA Department of Legal Theory Masaryk University Veveří 70, 611 80 Brno CZECH REPUBLIC Milos.Vecera@law.muni.cz Abstract: - Justice presents the substantive measure of human action, human interaction and man s communal (social) life. There are normative orders in the society that have their own justice. We can speak not only about legal justice, but also about moral justice, social justice, political justice, economic justice, divine (transcendental) justice, communitarian justice and some other kinds of justice. Justice is the first of all a legal and a moral issue and since 50 s of last century it is also a social theme. However, in postmodern and pluralistic society law is gradually becoming the only acceptable regulatory system with general binding and law is increasingly significant form of justice in the democratic state governed by the rule of law. Key-Words: - Justice, moral justice, legal justice, justice of law, equality, equality in law. 1 Justice as the human concept Justice is one of those core terms which claim universal importance in social, political and also legal theories. Justice is a great idea in the history of mankind. Every revolution, every war, every overthrow has always been effected in the name of Justice, no other question has caused so much blood and tears [1]. Although the question what is justice? has been one of the perennial questions asked by men, there is no explicit, definitive answer available. Famous legal theorist Hans Kelsen expressed the opinion: Indeed, I don t know, and I cannot say what justice is, the absolute justice for which mankind is longing. I must accept a relative justice and I can only say what justice is to me. [2]. Nobody knows or can prove objectively and with any finality what the meaning of justice is, however, the issue of justice can be debated rationally [3]. Nevertheless, justice does not refer to any object of definite and uniform features, in spite of it, represents a social-psychological phenomenon of great importance, especially in modern democratic society and we can point out psychological experiments of justice and injustice that have been examined since the 1980 s of last century. Mainly American social-psychologists (Melvin Lerner, Zick Rubin, Elaine Walster etc.) focus their analyses on the justice motive in social behaviour [4]. They have found that justice is one of the most sacred and pervasive themes in social behaviour. It is a specific anthropological fact that a man sensitively perceives problems of justice with his sense of justice. But the principles and ideals of justice are not based only biologically, but also culturally, justice is essentially modified by social influence. Justice presents the substantive measure of human action, human interaction and man s communal (social) life. 2. Plurality of justice evaluation The words just and justice often refer to anything which is connected primarily with law by any means, although law does not represent a privileged domain of justice. However, we can speak not only about legal justice, but also about moral justice, social justice, political justice, economic justice, divine (transcendental) justice, communitarian justice and some other kinds of justice. Different kinds of justice refers to different kinds of social order. As Karel Engliš, the outstanding Czech lawyer and logician, contemporary to Hans Kelsen, said: There are social orders in the society that have their own justice [5]. However, we can say that there is the plurality of ranges of justice in the society. The plurality of kinds of justice consequently means plurality of ways of justice evaluation, therefore, the same human action or institution can be evaluated differently. What is just from the standpoint of either morality or of law, it can be seen as very ISBN: 978-1-61804-123-4 148

unjust from the standpoint of social justice. Justice is the first of all a legal and a moral problem and since 50 s of last century it is also a social theme. However, in postmodern and pluralistic society law is gradually becoming the only acceptable regulatory system with general binding and law is increasingly significant form of justice. 3. Juridical approach to the problem of justice The problem of justice is of particular significance in the jurisprudence. Justice is a great and essential topic of legal philosophy and theory, also a problem of legal practice. It is especially the application of law where the standpoint of justice would be the foundations of legal considerations. There is an essential question in this context: What is the underlying idea of law? Is that either the idea of justice or the idea of power [6]? However, the idea of justice constitutes indispensable reason for justification of law and its legitimity in the modern democratic society. In saying that the law is based on certain conception of justice, this or that, however we need not endorse that conception of justice as the true or correct conception [7]. The problem of justice in law can be seen as two substantial topics [8]: 1. justice of law, 2. justice according to law. 4. Justice of law There is, in the first place, an essential general question about the justice of legal norms (rules). Nobody has doubts about the sense and usefulness of legal norms. However, is it possible to say that legal norms represent not only allowed, experienced, competent and useful actions, but also a just action? Are there any rational criteria to guide us in this matter, any criteria that will permit us to qualify as either just or unjust rules of different kinds (legal, but also moral, economic etc.)? Is a legal norm just per se. Chaim Perelman concludes his reasoning on the justice of rules that there is no universal and constant criterion of just rules. The only subsidiary aid for us is, as Perelman supposes, that rules are rather conform to certain general principles that permit their rational systematization. He sums up that nothing is more controversial than the justice or injustice of laws [9]. It is possible to agree there is no objective test of justice that could eliminate unjust rules, in addition, we know actual contradictions between requirements of rules of different kinds of normative systems (e. g. a moral norm does not allow telling lies but legal norms permit the accused to lie in defending himself). A specific difference between laws and other social rules is evident. In a democratic and pluralistic society everyone (individual and social collectivity) is free to adopt his own morals, elaborate his own rules for living, choose his own ideals, and live his own life (of course, to the extent that he does not break the rules of public order). But it is different with the making legal regulations which determine the rights and obligations of each individual in accordance with desires and aspirations of the politically organised collectivity and will be later interpreted, applied and forced by the officials, judges and power institutions and sanctioned by legal constraints. However, these aspirations and conceptions never express unanimously the opinion of neither all collectivity nor the elected representatives of the collectivity (society, nation etc.). In fact, there are very few laws on which all men would agree and to which they would give the same interpretation, in addition, laws are nowadays very frequently amended: abolished and changed. The justice or injustice of laws presents therefore a debatable and controversial question and no doubt, that just laws cannot be lay down arbitrarily. First of all we can postulate that there is an substantial idea of law and it is the idea of justice rather than the idea of power, and taking this into consideration, we can formulate three possible approaches to justice of law: 1.Assumption that justice of law is based on moral theory (for example to hold that criminal law is based on conception of justice as the retribution to evil). Justice of law is then connected with moral values, categories, principles and imperatives. This concept anticipates law as morally right and binds law with moral. This way of thinking is close to the philosophical reflection about justice of law. However, lawyers and sociologists of law consider law and moral as two specific partial spheres of social life. 2. Justice of law is bound with the concept of natural law - in the philosophy of natural law the idea of justice has always occupied a central place. The idea of justice, which is the highest principle of law, is reflected with a greater or lesser degree of clarity or distortion in positive laws and it is the measure of their rightness. As a principle of law, justice delimits and harmonises the conflicting desires, claims and interests in the social life of the ISBN: 978-1-61804-123-4 149

people [10]. We can remind of a well-known extreme statement of iusnaturalism here: lex injusta non est lex. It consequently means: if law is contradictory to the natural law, representing the idea of justice, then law could not be considered as law. The idea of natural law constitutes conviction and justification of the concept of the justice of law. 3. Justice (i.e. legal justice) is identified with positive (now effective, valid) law. This is the essential standpoint of legal positivism, and in particular that of legal normativism. We can mention here the well-known Hobbesian formula - no law can be unjust - as it Thomas Hobbes in his Leviathan clearly worded: The law is made by the Sovereign Power, and all that is done by such Power, is warranted, and owned by every one of the people; and that which every man will have so, no man can say is unjust [11]. T. Hobbes wanted to express the importance of law for the man and society in his formula, as he lived in very troubled times. For Hobbes s successors his positivistic idea became a question of methodology, especially for critical jurisprudence, as František Weyr named his Brno normative legal school that was founded and represented mainly by him and created parallelly to that of his contemporary - Hans Kelsen. Legal positivism, and first of all legal normativism emphasised that positive (valid) law is binding, that is, it ought to be obeyed. At the same time the legal positivists rejected any connection between law and morality, and particularly between (positive) law and natural law. Kelsen asserted that the assessment, whether the law is just belongs to the realm of irrational ideals and application of principles of justice to law is beyond the scientific theory of law. Strictly speaking, just is only another word for legal or legitimate [12]. We have just formulated three possible approaches to the question of justice of law: the moral theory, the concept of natural law and the approach of legal positivism. As we cannot reject putting down the question of the justice of positive law (laws) from the reasoning de-lege-ferenda there are three cases of the injustice of valid legal norm (law): 1. A legal norm is unjust from the standpoint of out-of-legal sectors of justice (moral, social, divine, historical etc. justice); 2. A legal norm is unjust from the standpoint of natural-law concepts (principles). 3. A legal norm is unjust from the standpoint of the legal order (system) itself, it means for example that a norm is contradictory with any other legal norm or a norm is retroactive or, there is either some procedural or material lack related to the process of formation and passing the regulation; What about the consequences of these cases of injustice for application of legal norms? There are no immediate legal effects on validity of the norm as the validity is an essential feature of every legal norm. It means, only the legislative act can abolish this unjust regulation and remove the undesirable state. But the most serious consequence of this state is casting doubt on the justice of the act applied in respect of this legal norm. There is a relevant question: what is better - more just - when authorities strictly observe and apply an unjust regulation or when they do so only arbitrarily, inconsistently [13]? John Rawls asserts that it is better when these laws are consistently applied, nonarbitrarily, because of the necessity of the order [14]. The order (system) is important per se, the order helps people, Rawls says, to plan their actions rationally; they know what to expect from law enforcement institutions. 5. Justice according to law - legal justice This topic relates to the problem of legal justice that is intrinsic to the reasoning of legal philosophy and legal theory. Only legal justice is the kind of justice that is the subject of interests of legal positivists but not legal normativists. The well-known Czech normativist František Weyr refused the opinion that the concept of justice is a problem of jurisprudence [15]. Hans Kelsen, as well, characterised justice as an irrational ideal and legal justice is only a state of legality (lawfulness) for him. However, his approach was moderated a little later: A pure theory of law is no way opposes the requirement for just law but a pure theory of law - a science - cannot answer this question because this question cannot be answered scientifically at all [16]. We can postulate that legal justice is the justice on the basis of law and according to law. The concept of legal justice issues from the existence of positive law to which all people, institutions and authorities ought to be conformed. However, legal justice could not be understood only as the process of application of law by authorities and giving decisions according to law. Legal justice relates to legal actions and the legal status of all subjects of law as well. A man experiences and solves his problems through his sense of justice. Law helps him to choose his aims of actions and means to their achievement. He can rationally justify his behaviour. ISBN: 978-1-61804-123-4 150

The problem of just application of law and particularly giving just decisions consists especially in formal requirements of justice: They refer mainly to the fundamental principle of legal equality which means, first of all, an equal legal status of subjects of law. The problem of legal equality was very significant for liberals, therefore already John Stuart Mill recognized very clearly distinction of [17]: a) Equality before the law and before the court - it emphasises the formal equality of legal subjects inside the concrete legal order and equal protection to the rights of all of them; b) Equality in law - it means that rights and obligations are set without any discrimination (for example according to gender, religion, social origin etc.). However, equality in law presents not formal but rather substantial (material) justice and we were engaged in these questions in the above-mentioned problem of justice of law. Principles of formal justice are empty of content but they give guarantee of the same treatment for everyone. They issue from the idea expressed already by Plato and Aristotle, that equality is the basis (core) of justice. So Aristotle said expressis verbis: Injustice arises when equals are treated unequally, and also when unequals are treated equally [18]. British legal theorist H.L.A. Hart expressed in this sense formal principle of justice by words: Treat like cases alike and different cases differently [19]. These principles of formal justice are considered by Alf Ross as a weapon against injustice and therefore the basis of law. Justice is the correct application of the law, as opposed to arbitrariness [20]. Formal justice finds the expression in procedural justice, particularly in legal regulation of judicial proceedings [21]. These questions of formal justice become substantial in the cases of defence of rights and enforcement of obligations, namely in the connection with protection and enforcement of human rights. We can refer, first of all, to the right to a fair judicial procedure, the right of access to court and the right to judicial and other legal protection (Article 6 of the European Convention on Human Rights). These procedural and democratic approaches may themselves be regarded as based of considerations of justice, at least to the extent that they are seen as ways in which citizens take and share equal responsibility for the rules they impose on themselves and others [22]. 6. Conclusion We can sum up our considerations that law is based on the conception of justice but this conception has not been covered by any law to sufficient extent. However, law is not a privileged domain of justice and law does not give any absolute and clear justice per se as there are other kinds, the importance of legal justice is increasing. The sense of law and laws is, on the contrary, to be in service for justice to foster the rule of justice in the democratic state governed by the rule of law. While there is no requirement that public policy should conform to any particular theory of justice, its formulation and implementation should none the less be selfconsistent, without arbitrary dispensations and exceptions [23]. We can finish with the words of the Greek philosopher Epikuros: The biggest benefit of Justice is quiet. References: [1] Ch. Perelman, Justice, Law, and Argument: Essays on Moral and Legal Reasoning. Dordrecht: D. Reidel Publishing Company, 1980, p. 1.X1. [2] H. Kelsen, What is Justice. Berkeley: University of California Press, 1971, p. 24.X2. [3] O. Weinberger, Law, Institution and Legal Politics. Dordrecht: Kluwer Academic Publishers, 1991, p. 247. [4] M.J. Lerner, S.C. Lerner (eds.), The Justice Motive in Social Behavior. New York: Plenum Press, 1981. [5] K. Engliš, Věčné ideály lidstva. Praha: Vyšehrad, 1992, p. 124. [6] V. Knapp, Teorie práva. Praha: C. H. BECK, 1995, p. 82. [7] N.E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights. London: Sweet and Maxwell, 1986, p. 6. [8] P. Holländer, Filosofie práva. 2nd. ed. Plzeň: Aleš Čeněk, 2012, p. 347. [9] Ch. Perelman, Justice, Law, and Argument: Essays on Moral and Legal Reasoning. Dordrecht: D. Reidel Publishing Company, 1980, pp. 44 ff. [10] A. Ross, On Law and Justice. Berkeley: University of California Press, 1974, p. 268. [11] T. Hobbes, Leviathan. Harmondsworth: Penguin, 1981, p. 388. [12] H. Kelsen, What is Justice. Berkeley: University of California Press, 1971, p. 430. ISBN: 978-1-61804-123-4 151

[13] W. Sadurski, Giving Desert Its Due: Social Justice and Legal Theory. Dordrecht: D. Reidel Publishing Company, 1985, pp. 19 ff. [14] J. Rawls, A Theory of Justice. Oxford: Oxford University Press, 2005, p. 59. [15] F. Weyr, Teorie práva. Praha: Orbis, 1936, pp. 18-27, 83-84. [16] H. Kelsen, General Theory of Law and State. New York: Russell and Russell, 2009, p. 5. [17] J.S. Mill, Utilitarianism. In: On Liberty (M. Warnock, ed.), London: Collins, 1962, p. 301. [18] Cit. after M. Ginsberg, On Justice in Society. Baltimore, Maryland: Penguin Books, 1965, p. 1. [19] H.L.A. Hart, The Concept of Law. Oxford: Clarendon Press, 1961, p. 155. [20] A. Ross, On Law and Justice. Berkeley: University of California Press, 1974, p. 280. [21] M.D. Bayles, Procedural Justice: Allocating to Individuals. Dordrecht: Kluwer Academic Publishers, 1990, 260 p. [22] T. Campbell, Justice. 3rd. rev. ed. Hampshire: Palgrave Macmillan, 2010, p. 250. [23] T.R. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford: Oxford University Press, 2005, p. 41. ISBN: 978-1-61804-123-4 152