I am trying to sketch a new project aiming to question the problematic relationship between justice and law in philosophical/political terms. Many political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. Many scholars on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a conclusion that justice is somehow part of law. In my point of view, justice shouldn’t be conceived as an inherent component of the law, I am rather interested in the disconnection of law and justice to the extent that this disconnection bears the concept of politics itself both in positive and negative terms.
I believe that your intriguing answers and guidance will breed a very fruitful discussion.
Former Chief Justice Vaudin d’Imecourt, stated, "“This is a court of law, not a court of morality.”
Associate Judge Oliver Wendell Holmes Jr, apparently once remarked,
“Courts are courts of law and not courts of justice.”
Ironically, Judges are often appointed and paid by the "Department of Justice!"
At issue is that "morality," "sins," "the public good," "justice," etc. are not encoded like the law. This is not to say that "the law" is so well encoded and observant to accurately discover and present who the criminal or guilty party is. The Judge can only interpret the evidence before her/him in terms of the law, not some vague sense of "justice" based on the perception of the public or the media.
It is also the only way to protect the professionalism of Judges, otherwise their profession would degenerate into a "puppet" jurisdiction, satisfying the popular mood and politics of the day.
Law and justice in this context can be likened to Siamese twins which goes pari pasu. While the former is the offshoot of the latter, the latter is an extension of the former. Much ado has been said and done about the duo. In the opinion of Prof. Wahab Egbewole as chronicled by his inaugural lecture; questions like what is the relationship between law and justice? Is law the end of justice or justice the end of law? Must all laws be just? Should a society be ruled by law or justice? What constitutes good reasoning in the context of courts delivering judgments backed up by good reasoning? This may be easily discerned in the day-to-day cases but there are hard cases or principles that are perceived to be novel, recondite and classical. It is only jurisprudence that the courts will turn to provide the leeway in answering all these questions and more.
A given law is itself either just or unjust according to whether or not it complies with those objective principles of justice. But one may be pressed to ask: what will happen where a judge has to apply an unjust law? Will that make his judgment unjust? The issue here is where the judge considers the law to be unjust from its face. Justice, we need know, is as defined by legislation/law. Thus, where the law is clear and certain that a particular consequence should follow some behaviour, once that is done, justice has been achieved in that case.
Salmon believes that law is an instrument of the society and the object of the law is to achieve justice just as its goal. According to Aquinas and Augustine, an unjust law is no law; whilst Salmon believes that law is those principles applied by the state in the administration of justice. Justice can be gleaned from the wider and more restricted sense. In a wider sense, an unjust law is no law.
The relationship between the law and justice has been likened to that which exist between a chicken and egg; since the chicken lays the egg, then we can conveniently say that law begets justice just as justice itself is one of the ultimate aims of the law.
There is a distinction in legal and sociological writings between legal formalism (formal rationality) and substantive rationality. Questions of substantive rationality include value orientations such as retribution, deterrence, and rehabilitation in criminal sentencing. Each of these goals of sentencing adhere to different forms of substantive rationality with roots in different principles of justice. For this reason, sentencing rules and laws are subject to less uniformity because of the intrusion of substantive rational considerations.
Changes in law are influenced by changing values. Hopefully, the values involve evolving principles of justice, but this is not true in many contexts. This is why your question is very important. While courts may desire to introduce laws for governing sentencing, we have never found criteria that promotes universal conformity to these rules that are not questioned because the critiques adhere to different principles of justice.
So, understanding this relationship between justice and law in different contexts is an important issue that continues to plague our legal systems. Indeed, justice and law involve socially negotiated orders, but these processes of social order adhere to different logic and forms of rationality. Thanks for your question.
Justice is more like a value that societies (and humankind) want to reach, Law seems to be an instrument to guarantee social living in communities. Law is a sort of minimun convention on what values we think (as a society) that are so important that ought to be mandatory. Judges make Justice, that is not the same to be just. That's what a supreme court in my country said one time at law school.
I am very thankful to the ironical point raised by Justice Vaudin d’Imecourt in his emphasis: “Courts are courts of law and not courts of justice. Ironically, Judges are often appointed and paid by the "Department of Justice!".
It’s apparently true that we all talk about justice and even establish a separate governmental extension being called as "Department of Justice” or “Ministry of Justice”, nevertheless what we all do is nothing different from implementing certain encoded rules of law in the name of so-called justice.
I also agree that the Judges can only interpret the evidence before her/him in terms of the law, not some vague sense of "justice" based on the perception of the public or the media. However, isn’t it also ironical that when we realistically attempt to disrupt the connection between law and justice, we are unevenly flooded by the notion of vagueness. We do recognise all misrepresentations of justice very well, but what about fully denying the possibility of the representation of the represented.
Let’s take the “justice phenomenon” as the desired outcome of law-oriented activities. In this scenario, we would tend to believe that although nobody can assure that a particular law implementation stands for the ideal manifestation of justice itself, we feel somehow inevitably forced to consider that we would never give up pursuing the ideal. The gap between the given and the ideal appears to most of us something like a mobilisation of the will towards the final good. That’s just the point I am trying to criticise.
We should consider that the idealistic justice expectation is nothing but ideology both in positive and negative terms. As argued by agonistic political analysis (citing Ernesto Laclau and Chantal Mouffe), “the place of the universal” is empty; the universal is genuinely content-less. What we see in our political/judicial lives is more of a representation of the universal by the particular. We can’t avoid naming this particular representation as the manifestation of the universal. In other words, we can’t also avoid naming particular implementation of a law as the manifestation of justice. However we should consider that this ineluctability is the ground of politics and ideology.
Put in philosophical terms, there is no genuine relationship between the particular manifestation of the universal and the content-less universal itself. The “particular” temporarily occupies/represents the universal, and we call this representation as the universal itself. In fact, there exists no “universal” fully independent of the moments of the articulations of the particular representations.
Put in judicial conception, there is no genuine relationship between the law and the content-less justice. The “implementation of a law or law itself” temporarily occupies/represents the justice, and we call this representation as the performative spirit of justice itself.
In short, we should not question the notion of justice just because of its vagueness but rather we should bear in mind that we are solely seduced by the very non-existence of it. That is why we adhere to juristocracy in some sense and also stick to chaotic sense of life in other sense. Welcome to the desert of politics!
And thanks for Abdulazeez Muhammad for his valuable thoughts. He strikingly underlines the dilemma between the law and justice (chicken and egg paradox); the former being the offshoot of the latter, and the latter being an extension of the former. First of all, I don’t agree that we can conceive the relationship in this way. It’s not so different from saying that law is justice in some sense and yet justice is law in some sense. This metaphor has the risk of sophistication and confusion. We should understand that the relationship between “the multitude of everything” (law) and “the nothingness of one thing” (justice) can not be called as an immanent two-facedness or dilemma, rather we should try to name it as non-relatedness.
I don’t think so that classical law and justice turnouts could be “easily discerned in the day-to-day cases”. While saying “A given law is itself either just or unjust according to whether or not it complies with those objective principles of justice.” Mr Muhammad draws our attention to the practical performance of judicial activity and he truly touches to the performative spirit of justice; the realistic and substantive performance of justice not the ideal one. In this point, justice looks like all of a practical exercise within the socio-political patterns of life. But, if “an unjust law is truly not law”, doesn’t it mean that there isn’t really any relationship between justice and law? Wouldn’t we say “Just law isn’t justice either!”?
If we originally accept that the chicken and egg belong to same family, we can have an endless discussion about the primitive originality of them. In fact, there is no paradox here, it all depends from which perspective you observe the matter. My contention is that chicken and egg do not belong to same family, one of them is characterised with non-existence. So guess which?:)
Thank you also for José Ashford’s informative distinction between legal formalism (formal rationality) and substantive rationality. An extremist understanding of legal formalism (formal rationality) may lead us towards a positivistic conception of law practice. By ignoring the value-oriented reasons and logically different perceptions of justice principles, formalistic approach somehow bears the idea that -following certain reasoning procedures- instrumental and steadfast argumentation in law practice would eventually breed a desired manifestation of justice practice, whatever the ideal justice concerns dictate. Here, the evolving procedure of law practice is conceived something like a gap-filling instrumentalism hopefully keeping us away from the endless discussions about the eventual content of the justice itself. I would like to highlight that, although it seems distinctly kept away from substantive argumentations about the justice, this procedural formalistic approach strictly adheres to the very existence of the notion of justice, it only conceals its hopes under the guise of evolving proceduralism.
I agree with José that justice and law involve socially negotiated orders, but these processes of social order adhere to different logic and forms of rationality. I call this “different logic and forms of rationality” as politics. To my view, justice is a political game in which it appears to be a non-existent scorer as an ambiguous player. The game is played between the players themselves, the referee is nothing to do with the game, however his apparent non-existence seriously affects the final score.
And finally I also thank to Maria Susana Ciruzzi for her idea that Justice is more like a value that societies (and humankind) want to reach, Law seems to be an instrument to guarantee social living in communities. My point is that the evolving actualization of Law is no way predetermined by the value-oriented inclinations. In fact the disconnection between the values and acts creates the life, not the reverse. If we anyhow confuse justice with law, we would tend to lose the emancipatory gesture of Justice itself. As the Derridian insight suggests us “Democrocay to come”, it never comes, so the “Justice to come”, it never comes because a non-existent player can not play the game.
I am really very grateful to all great comments on my question. They all triggered very valuable insights. I hope this discussion would keep going and so I would successfully sketch out my study by the help of these precious ideas. My deepest respects…
It is necessary to distinguish between moral, legal and legal justice.
Moral justice is associated with the value orientations of a particular social group or society. It involves a person committing actions that the community considers correct, good. The fulfillment of these actions is due to the inner convictions of man.
Legal justice is also associated with the group's value guidelines and is expressed in informal norms. These norms are formed in the process of social interaction and are aimed at maintaining conflict-free coexistence of the group. Compliance with such standards by a member of the group is legal justice. Human observance of informal norms is ensured by social coercion.
Legal justice means the proportionality of the act and the consequences for it. It is legal justice that is expressed in law and enforced in the justice process.
Ideally, justice is the end and law is the means.
Etymologically justice comes from the Latin ius which has a broad meaning of generally moral correctness. The Romans also had the world lex which is where we get the word law.
If you are following the Greeks justice is primarily a habit. That appears to be Plato's conception from the Republic. Aristotle defines it as a habit of acting according to what is owed or due. (Cf. Nicomachean Ethics Bk. 1)
The western legal tradition emerged from the Greco-Roman transformed through scholasticism. For the scholastic tradition, the law extends beyond justice. A law being "an ordinance of reason for the common good, made by him who has care of the community, and promulgated." Thomas Aquinas, Summa Theologia I-II Q. 90 A. 4. The common good is broader than justice. That is also where there emerges a distinction between commutive and distributive justice.
The English common law system used to have separate courts of equity or chancery court in addition to courts of law. These courts have merged and the distinction has been largely lost.
These traditions have long acknowledged that laws can be unjust and justice can be unlawful. An instrument is only as good as the one who yields it. Hence the insistence by Benjamin Franklin that virtue is essential to a republic.
An example of the negative disconnect between law and justice are the U.S. Supreme Court cases of Dred Scott v. Sanford and Plessy v. Ferguson. These cases are instructive in showing that a disconnect between law, or the interpretation thereof, and justice does exist. Arguably these cases were politically motivated using interpretation of the law to deny justice for slaves (Scott) and black Americans (Plessy). These cases have had a long-lasting negative effect on American society and the Scott decision is considered by many as a precursor to the U.S. Civil War.
In time Scott was overturned by the 13th and 14th Amendments to the U.S. Constitution and Plessy was overruled by the Supreme Court decision in Brown v. Board of Education. This begs the question does it take time and societal change for justice to occur?
I think that we all know the statue of Lady Iustitia, a symbol which represents the moral force in judicial systems. Her attributes are a blindfold, sword and set of balance scales. The blindfold signifies impartiality, without regard to wealth, power or other status; the balance signifies that the judicial process weighs the evidence presented by the two parties; she lifts the balance to ensure that in both cases the evidence stands on its own; the sword represents authority and that the verdict will be delivered within a reasonable time and will be final; the toga represents the philosophical attitude that would embodies the due consideration of justice.
Lady Justitia was often depicted together with Lady Prudentia, who holds a mirror. She represents the ability to govern and discipline oneself using reason. The mirror represents introspection and self-reflection, leading (hopefully) to the ability to make the right decisions.
The classical concept of spiritual personhood meant the possession of intelligence and free will. According to the Greek and Scholastic traditions, the virtue of prudence has a directive capacity towards the other virtues. For example, not all cases of truth-telling are beneficial, although the virtue of honesty demands it. What makes truth-telling a virtue, is that it is done with prudence. (You can view them in Wikipedia).
But there is also another symbol of a judicial system. It simply consists of a pile of stones. This pile of stones is called the "Isivivane", or "spit stones", a symbol of the Zulu King, King Dingane’s judicial system. Everyone who visited King Dingane’s royal settlement, would cast a stone on this pile with the prayer that she/he would return alive. If you would visit Robben Island, you will see a similar pile of stones. But that stone pile was put there symbolically only after Nelson Mandela’s release.
Historically, these two symbols, and various combinations thereof, in my view, signify the two dominant political and judicial systems throughout history, and until today. They are based on different thought models.
According to the Nigerian academic, Prof. Emevwo Biakolo, “. . . the African [traditional thought] model is a closed system because, unlike the open scientific culture, it neither understands nor tolerates alternative thought. It has a mystical attitude to language and takes recourse to a personal idiom and a contextual basis for its discourse.” (Biakolo, 1998).
Politically, such a thought system places the ruling elite “above the law.” Everyone under such a regime and in that culture recognizes and acknowledges that the ruling elite exercises and holds absolute power over decision-making, life and death. We know that this thought model is not only restricted to certain African regimes, and that many Africans no longer accept this thought model.
When alternative thought and behaviour are not accepted, it could lead to the fact that concepts such as “the truth” never developed in the vocabulary of the Chewas in Malawi, or “honesty” never developed in the vocabulary of the Xhosas in South Africa, until they came into contact with colonial judicial systems, commerce and religions. Can we conceive “justice” where “the truth” and “honesty” are not recognised? And yet, the modern electronic news media regularly report about court cases and hearings in different countries where “the truth” and “honesty” were deliberately ignored or silenced, or even forcibly disallowed.
Therefore, as the other commentators have rightly stated, how “justice” is viewed and exercised, whether in the legal, commercial, religious, labour, academic, professional, media, etc. spheres of society, is heavily dependent on what freedom of decision-making is allowed under the ruling political system. In other words, what “thought-model” is allowed and supported by the politicians. A key pre-condition to a “free” society, with freedom of thought and expression in order to ensure justice, which includes public and environmental safety, is the public political recognition, encouragement and active support for freedom of public debate and criticism. Otherwise, justice in society and its legal system will remain repressed and frustrated.
Concerning the relation of justice with the law, we can say: When the law is passed, justice can have a greater impact than the law enforcement stage. Due to the changing circumstances of the time of ratification, it may not be fair to apply the law. The court has no means of just enforcement. Some courts try to enforce the law fairly, but they usually make a mistake.
Some laws also do not consider the duty of the court to be fair. For example, Article 3 of the Code of Civil Procedure and Article 167 of the Iranian Constitution.
The relationship between law and justice is unbreakable and there appears a direct relationship between the two. It is also highly believed that they are two faces of a coin. And many people consider the proper implementation of laws as a justice. However, all laws are not just laws and entitle rights to all human beings.
https://www.abyssinialaw.com/blog-posts/item/1477-law-as-a-means-of-serving-justice
No todas las leyes son justas, no todo lo justo es legal. Justicia, darle a cada uno lo que le es debido, eso hace el juez, pero para ello considera dos aspectos: 1, En base a la ley y 2.Confome a la ley
"Perhaps," one must always say perhaps for justice. There is an avenir for justice and there is no justice except to the degree that some event is possible which, as event, exceeds calculation, rules, programs, anticipations and so forth. Justice as the experience of absolute alterity is unpresentable, but it is the chance of the event and the condition of history."
From "Force of Law"- Derrida
Consider the above with these following arguments by Derrida:
"What I call "text" implies all the structures called "real," economic," historical," socio-institutional, in short: all possible referents. Another way of recalling once again that "there is nothing outside the text." That does not mean that all referents are suspended, denied, or enclosed in a book, as people have claimed, or have been naive enough to believe and to have accused me of believing. But it does mean that every referent, all reality has the structure of a differential trace, and that one cannot refer to this "real" except in an interpretive experience." Derrida
On the Connection Between Law and Justice
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=facultyworkingpapers#:~:text=Justice%2C%20unlike%20law%2C%20has%20normative,we%20ought%20to%20do%20it.&text=You%20might%20say%20that%20judges,to%20the%20judge%20than%20justice.
"Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong."
-Theodore Roosevelt
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