Justice And Law Research Paper

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Justice has been called the fundamental moral virtue of social institutions (Rawls 1971). In similar fashion, ‘legal justice’ is the name commonly given to the fundamental moral virtue of legal institutions. Theorists through the centuries have diﬀered substantially over what this virtue is, and what relation legal justice bears to other forms of justice. In its commonsense meaning, according to which legal justice means treating people as the law provides, legal justice helps ensure that people are treated consistently and predictably. At the same time, however, it seems unlikely that treating people as the law provides invariably means treating them justly, because the law is at best an imperfect instrument of justice in its broader sense. Some theorists have responded to this concern by oﬀering alternative accounts of legal justice. Others, of more skeptical bent, have doubted that legal justice has much to do with real justice, either because they deny that legal institutions have moral aims, or more commonly because they believe that other virtues, such as economic eﬃciency, pragmatic problem-solving, or compassion, are more fundamental aims of legal institutions.

1. The Commonsense Conception Of Legal Justice

In its primary everyday sense, legal justice means treating people as the law provides. This view may be referred to as the commonsense conception of legal justice. Under the commonsense conception, law, rightly interpreted and properly applied to facts determined rationally, yields legal justice—indeed, ‘legal justice’ turns out to be nothing more than the name for the state of aﬀairs in which law is rightly interpreted and properly applied to facts determined rationally. The phrase has no meaning independent of this. Under the commonsense conception, legal justice is roughly synonymous with legality itself. It is what most people mean when they speak of the ‘rule of law,’ an abbreviation for ‘the rule of law, not of men.’ Where the rule of men subjects people to the will of rulers, which may well be partial or capricious, the rule of law impartially subjects people only to the law itself.

In Western philosophy, it was Plato (428–347 BC) who in his late dialogue The Laws ﬁrst introduced the idea that human rulers should be ‘slaves of the law.’ His student Aristotle (384–322 BC) also endorsed the rule-of-law idea in his work Politics (Bk. 3, ch. 16); it is also Aristotle who, in Nichomachean Ethics (Bk. 5) provided the ﬁrst systematic analysis of the forms of justice. It is noteworthy, however, that Plato did not endorse the rule of law wholeheartedly. Drawing on the analogy of physicians who change their course of treatment when they ﬁnd it is killing their patients (Statesman 295c–297c), he argued that oﬃcials should depart from legal rules when the good of the city requires it. The fear that rigid legality may lead to injustice haunts the commonsense conception of legal justice.

The commonsense conception raises large jurisprudential questions. How is law interpreted rightly? How is it applied properly? How are facts determined rationally? Competing philosophical schools oﬀer various theories of legal interpretation; proceduralists disagree about how to adjudicate properly; and evidence scholars balance epistemological accuracy, investigative cost, and the protection of personal rights in rational fact-determination. As a result, the commonsense view that legal justice means treating people as the law provides is not as straightforward as it seems. It is fraught with ambiguity—an essentially contested concept if ever there was one. The commonsense conception of legal justice turns out to be an entire family of conceptions.

Perhaps the most fundamental divide among theories of legal interpretation and law application exists between views that try to bind decision-makers through objective general criteria and views that encourage decision-makers to exercise moral judgment. An example of the former is so-called intentionalism, the idea that laws should be interpreted according to the intention of those who drafted them, ascertained through objective historical evidence. An example of the latter is the theory of the distinguished philosopher Ronald Dworkin (b. 1931; see for example Dworkin 1977, 1980), who believes that judges are required to interpret law in the morally best light it can sustain.

2. Justice And Legal Justice

Regardless of how its ambiguities are resolved, the commonsense conception implies that legal justice will never be any better than the law itself. If the law itself is unjust, then treating people as the law provides will produce injustice. US Supreme Court Justice Oliver Wendell Holmes wrote in a letter, ‘I have said to my brethren many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms’ (Holmes 1929). Legal justice, understood as legality, diﬀers essentially from what might be called extralegal justice, or justice simpliciter. If Holmes is right that legal institutions do not deliver justice simpliciter, then two rather disquieting conclusions appear to follow. First, the term ‘legal justice’ is fundamentally misleading: the word ‘justice’ in it really doesn’t mean justice. Second, there may be no reason to think of legal justice as a moral virtue at all. A good murderer is not good, and legal justice may be unjust.

Moreover, even when a law is good, inﬂexible application may yield outcomes in particular cases that are inequitable—unjust, in another everyday sense of the term—because of the exceptional facts of the case. Laws are general in scope, but, as Aristotle observes, even a good general rule may yield an unjust outcome when the case doesn’t ﬁt the rule. Thus, alongside the problem of unjust laws there is a problem of unjust outcomes. Both problems generate a tension between justice and legal justice.

2.1 The Natural Law Alternative To The

Commonsense Conception of Legal Justice The most ambitious approach to the problem of unjust law simply denies the possibility that law can be unjust. At ﬁrst blush, this sounds absurd, but the proposition that unjust law is not really law at all (lex injusta non est lex) has had powerful defenders in the so-called natural law tradition, among them St. Augustine and St. Thomas Aquinas. The natural law argument may be put as follows. Inherent in the idea of law is the claim that the law ought to be obeyed, that the law creates a moral obligation over and above whatever sanction attaches to it. That is why a tax law is simply not the same as a gunman’s command to hand over your wallet, and lawful authority is not merely the ‘gunman writ large.’ The diﬀerence is that one does nothing blameworthy by evading the gunman, but it is commonly believed that tax fraud is wrong—more generally, it is commonly believed that people have a moral obligation to obey the law. If the law is unjust, however, the moral obligation vanishes, and with it the status of law (Soper 1984).

Roman Catholic natural law theorists put the argument somewhat diﬀerently. Legal systems are instituted for a purpose, namely to promote the common good. The common good requires that there be law-makers and law-enforcers, who solve the various coordination problems that arise in organized society. Their role in fulﬁlling the common good is the sole reason that law-makers and law-enforcers have authority over others, and why others ought to obey them. The law-making authority therefore has an implicit limit: if legislators are not aiming at the common good, they have exceeded their authority, and the laws they enact are laws in form alone (Finnis 1980).

The intuitive basis to the natural law argument is that every recognizable legal system is built around a core set of rules, such as the proscriptions of violence, theft, and fraud. These are moral requirements recognizably directed toward the common good; they are ‘natural law’ in the sense that reason alone seems to dictate that they belong in every legal system. To natural lawyers, the idea that any arbitrary set of rules could constitute a legal system is unrealistic, because it denies that reason itself reveals the core of natural law at the heart of legal systems.

The natural law position can best be understood as an alternative to the commonsense conception of legal justice. Where the latter understands legal justice to mean treating people as the law provides, the natural law conception understands legal justice to require treating people in a manner consistent with natural law. The commonsense conception imbues legal justice with the virtues of impartiality and predictability; the natural law alternative imbues legal justice with substantive concern for the common good.

To the natural-law argument there are at least two responses. The most prominent is the argument of legal positivists. Positivists hold that law consists at bottom of nothing other than posits of the sovereign authority. Any valid enactment by the sovereign authority is law, whether or not it is just. From the positivist point of view, natural lawyers are merely playing deﬁnitional games when they insist that a duly-enacted statute should not be honored with the title ‘law’ unless it is just. Taking away the word ‘law’ does not take away the problem of unjust law, because oﬃcials remain duty-bound to treat people as the statute provides. The commonsense conception of legal justice cannot be merely deﬁned away.

Furthermore, even if the natural law argument is right that not just any capricious set of rules counts as law, and that only a system devoted to the common good will be recognizable as a legal system, it does not follow that every single law in a legal system is just: a system devoted to the common good can contain ﬂaws and blind spots. The natural law argument applies most plausibly to entire legal systems, not individual laws. Perhaps a largely unjust system is not really law; but an unjust enactment of a largely just system is presumptively valid. In that case, the problem of unjust law reappears within the natural-law conception of legal justice.

A distinctive version of the natural law argument was devised by the American philosopher Lon Fuller. According to Fuller, a legal system must satisfy eight procedural requirements. To count as laws, enactments must be general in scope, public, prospective rather than retroactive, clear, consistent, relatively constant, capable of being obeyed, and enforced as written. Fuller believed that law serves as a baseline around which citizens organize their activities, and citizens must be able to know, understand, and comply with the baseline. The eight procedural requirements ensure that law satisﬁes these conditions. For Fuller, then, legal justice has more speciﬁc content than the commonsense conception—it includes the eight procedural requirements—but less content than the traditional natural law view.

Fuller’s eight requirements have been widely accepted as an analysis of the rule of law. Fuller also believed that any legal system satisfying the eight procedural requirements would be substantively just, but his various eﬀorts to demonstrate this ambitious conclusion are unpersuasive. American slave law satisﬁed the eight procedural requirements; so did many legal regimes that treated women as mere property of their fathers or husbands. Such legal regimes were procedurally just but substantively unjust, and most theorists agree that Fuller’s theory of ‘procedural natural law’ fares no better than traditional natural law theories in eliminating the problem of unjust law.

2.2 Building Justice-Enhancing Devices Into The Law

An alternative approach to the problem of unjust law concedes that unjust law is possible, but tries to narrow the gap between justice and legal justice by building into legal systems devices for bringing law into line with justice. For example, legal language can be interpreted ﬂexibly rather than rigidly, or interpreted in its morally best light, as Dworkin proposes. To take another example, many legal systems permit statutes to be invalidated when they conﬂict with constitutional principles, which are often framed in broadly moralistic language. In addition, commonlaw criminal juries have the power to nullify unjust law by acquitting a defendant in deﬁance of the law. Oﬃcials, too, may decline to enforce unjust laws, nullifying them through a kind of benign neglect. Arguably, nulliﬁcation defeats legal justice in the name of justice simpliciter; but some theorists have pointed out that the discretion to nullify law is itself sanctioned by law, and may be regarded as an escape clause built into the concept of legal justice (e.g., Kadish and Kadish 1973). Law must be administered, and because laws are stated in general form, oﬃcials will always have some discretion to determine when laws apply; thus, the power to nullify will always exist.

Devices like these may well lessen the tension between justice and legal justice, but few theorists believe that they eliminate it. No method of interpretation is ﬂexible enough to yield any desirable result, nor is every unjust law automatically unconstitutional. Furthermore, it seems unlikely that juries and oﬃcials will nullify unjust laws in every case—nulliﬁcation is a device better suited to the exceptional case than to the rule itself.

2.3 Law And Equity

What about situations in which a law is just, but applying it strictly in a particular case yields an unjust outcome? Aristotle deﬁnes the word equity as ‘a correction of law where it is defective owing to its universality,’ and argues that justice requires that law should yield to equity. This, arguably, is what nulliﬁers are up to. In Aristotle’s memorable image, rules of law should be like the soft lead rulers that builders use to measure irregularly shaped molding: ‘the rule adapts itself to the shape of the stone, and so too the decree is adapted to the facts’ (Nichomachean Ethics, bk. 5, ch. 10).

But while the utility of soft rulers is clear, soft rules are more problematic. In contemporary terms, Aristotle was arguing that law should consist of context-dependent standards rather than rigid rules. A law that says ‘drive no faster than 100 kilometers per hour’ is a rule; a law that says ‘drive at a reasonably safe speed’ is a standard. Standards, unlike rules, are adaptable to facts in the case-by-case way that Aristotle recommends.

There are two problems with replacing rules by standards, however. The ﬁrst is that standards are useful only when there is widespread social agreement on how they apply across a broad range of cases; where no such agreement exists, law must resort to rules if it is not to become fatally vague. For that reason, mature legal systems always contain both rules and standards.

The second problem is that the shift from rules to standards will not eliminate the need to supplement law with equity. Standards, like rules, must be general, and injustice can therefore result from applying them in particular cases. When a driver is rushing a stroke victim to the hospital, for example, he or she may be driving faster than 100 kilometers per hour and driving at an unsafe speed. If it seems unjust to punish the driver, that will not be because the speed limit takes the form of a rule rather than a standard—rather, it is unjust to punish the driver because his or her unusual situation does not ﬁt any universal speed limit, either a rule or a standard.

Perhaps, then, the universality of laws should be abandoned. The problem with this approach is that the universality of legal rules and standards is taken by most theorists to be the hallmark of laws, distinguishing them from orders and directives. Furthermore, the virtues of legal justice lie precisely in the universality of law. Because law is general, legal justice treats like cases alike, and in that way it is fair and impartial; in addition, generality makes the law predictable, which allows people to plan their aﬀairs around the law. Thus, treating people as the law provides honors the values of fairness and predictability, whereas allowing decrees to adapt to the facts undermines both these values.

2.4 Alternative Dispute Resolution

One way to reduce the tension between law and equity is to divert a dispute from the formal legal system to mediation, arbitration, out-of-court settlement, or other forms of alternative dispute resolution (ADR). Proponents argue not merely that ADR can resolve disputes more quickly, cheaply, and cooperatively than formal adjudication, but that also by particularizing outcomes to the unique facts of each case ADR creates higher-quality justice—it creates something that looks more like equity than law.

Here as elsewhere the argument is very ancient. In Greek authors of the Homeric period, the word ‘justice’ (dike) was synonymous with a mutually-agreeable settlement. In The Laws, Plato distinguished between the best judge, who destroys the wicked, the second-best judge, who subordinates the wicked to the good, and the third-best judge, who reconciles the contending parties with each other. Plato argued that in a real, non-utopian city the third-best judge, the one who settles cases through compromise, is better than the other two (627e–628a).

However, the virtue of ADR and the settlement process—that ADR makes an end run around legal formalities—raises questions about how to evaluate the justice of settlements. Negotiations, which often turn on nothing but naked bargaining power, can yield outcomes fully as inequitable as trials. Furthermore, critics of ADR suspect that informal processes may reinforce unequal power relationships, and that the lack of formal protections will leave vulnerable groups even more vulnerable. Should the justice of a mediated settlement be evaluated against the standard of an ideally fair trial (the ‘shadow verdict’), or an ideally fair negotiation (the ‘shadow bargain’), or something entirely sui generis? How are any of these standards to be determined? Does a compromise promote extralegal justice, or does it merely compromise legal justice? Such questions yield no easy answers.

2.5 Origins Of The Conﬂict Between Justice And Legal Justice

How grave the tension between justice simpliciter and legal justice is depends on what justice simpliciter consists of. Philosophical theories of justice diﬀer dramatically from each other, and none commands anything resembling a consensus. When Holmes wrote ‘I hate justice,’ his skepticism can be read as a complaint about the vagueness and debatability—hence, the contentlessness—of the concept of extralegal justice.

Yet despite the philosophical controversies, there is a recognizable Western concept of justice of which the philosophical theories may be said to oﬀer alternative interpretations or conceptions. This concept draws on the two chief sources of Western moral thought, Greek philosophy and the Bible.

For Plato and Aristotle, and likewise for the biblical authors and redactors, justice is primarily a virtue of persons rather than of institutions. Thus, Plato’s Republic investigates justice in the city only because Plato believes that the city is a plausible analogue to the individual soul, his real topic of interest; so too, Aristotle places his account of justice in his treatise on ethics rather than his treatise on politics. In the Bible, a just community is simply a community ﬁlled with just people. In this respect, the classical and biblical sources diﬀer profoundly from contemporary theorists, who treat justice as a property of institutions rather than of persons.

It was Aristotle who ﬁrst observed that the words ‘unjust’ and ‘just’ are ambiguous—the former refers both to ‘the lawless man and the grasping or unfair man,’ and similarly the latter refers both to the law-abiding and the fair man (Nicomachean Ethics Bk. 5, Ch. 1). One form that the virtue of justice assumes, then, is obedience to the law. Related to this form are special virtues of oﬃcials—to punish law-breaking, and to judge impartially (which is a requirement found both in the Hebrew Bible and in Aristotle).

What about justice simpliciter, that is, justice apart from law-observance? Both the Jewish and Christian traditions locate the core ideal of justice in the Golden Rule and the injunction ‘Love your neighbor as yourself’ (Leviticus 19:18; Matthew 22:39), which commentators often regard as alternative formulations of the same duty. In addition, both traditions lay special emphasis on the injustice of neglecting or oppressing the poor. For Jews, loving your neighbor as yourself is so closely identiﬁed with the duty to care for the needy that the Hebrew word tzedakah carries the double meaning of ‘justice’ and ‘alms-giving.’ Tzedakah is a duty of the just individual, and a community will be unjust to the degree that it neglects the needy. In contemporary discussions, people often use the term ‘social justice’ in precisely this way. Similar themes appear in non-Western religious traditions as well (including a version of the Golden Rule in the Analects of Confucius).

This sense of justice simpliciter as solidarity with the least fortunate will inevitably generate conﬂicts with legal justice. Even within Leviticus 19, the duty to care for the needy lies in tension with the duty of judges not to favor the poor. Furthermore, as functionalists argue, laws aim to maintain and preserve a social order; law is an innately conservative institution, whereas the biblical conception of social justice is innately utopian and radical. One cannot really expect that laws in any society will be systematically formulated to enforce wealth-transfers from the prosperous and powerful to the poor and powerless.

There is another reason as well to anticipate divergence between legal and extralegal justice. Since Aristotle, it has been traditional to distinguish distributive justice from corrective justice. The former concerns fundamental questions of distribution in society; the latter deals with the rectiﬁcation of injuries, both civil and criminal. Legal institutions such as courts deal principally with issues of corrective justice, and have very little to do with distributive justice (which is not to deny that legal decisions often have distributive eﬀects). As writers from Aristotle onwards have observed, corrective justice may run contrary both to moral virtue and distributive justice—if a good man accidentally injures a wicked one, or a deserving poor man injures an unjustly wealthy one, the injurer will owe compensation, even though in the former case the good man may be ruined for the sake of the bad, and in the latter case the distribution of wealth becomes even more lopsided than it was before. Legal institutions take established distributive principles and patterns as a given, regardless of whether they are just. In this sense, then, even when courts achieve corrective justice, they may well reinforce distributively unjust practices.

3. Alternatives To Legal Justice

So far this research paper has surveyed four conceptions of legal justice: the commonsense conception, according to which legal justice secures the goods of impartial consistency and predictability in the law; the traditional natural law conception, according to which legal justice secures the common good; Fuller’s ‘procedural natural law,’ according to which legal justice provides an intelligible baseline against which people may order their own aﬀairs; and the Aristotelian idea that genuine legal justice combines universal legal standards with equity. However, none of these is able to relieve the tension between legal and extralegal justice. The question remains whether other alternatives do better. Three alternatives have become prominent in contemporary debates.

3.1 Law And Economics

One response is simply to deny that achieving extralegal justice is an important aim of legal systems. A particularly inﬂuential contemporary version has been oﬀered by law-and-economics theorists. According to Richard Posner (b. 1939), a founder of law and economics, the aim of legal systems is to maximize aggregate social wealth. If legal rules systematically fail to maximize social wealth, disputing parties could realize shared gains by bargaining around the law; inevitably, then, the law gravitates toward wealth-maximizing rules. Furthermore, wealth maximization is a normatively desirable aim, better than utilitarianism because it cultivates productive virtues rather than pleasure-seeking (Posner 1983). Critics, however, have found both the descriptive and normative claims of law and economics exaggerated. Ineﬃcient legal rules sometimes linger for centuries, and the argument that a law prohibiting murder or rape can only be justiﬁed if it can be shown to maximize social wealth seems unsupportable (Dworkin 1980, Kronman 1980).

3.2 Pragmatism

Another prominent alternative to the commonsense conception of legal justice is pragmatism. As one proponent deﬁnes pragmatic adjudication, ‘a pragmatist judge always tries to do the best he can for the present and the future, unchecked by any felt duty to secure consistency in principle with what other oﬃcials have done in the past’ (Posner 1998, p. 237). To the objection that this is an invitation to lawlessness, pragmatists respond that doing the best for the present and the future will in some cases require the judge to apply law and precedent in a rigidly formalistic manner; in other cases, however, pragmatism requires judges to look past formalities.

Pragmatists collapse legal justice into extralegal justice, where the latter is understood as achieving the best consequences overall. In one respect, pragmatism descends from the legal realists, who argued that legal formality is merely a disguise for implicit policy-choices, which should be made explicit and be guided by concern for consequences. In another sense, pragmatism represents a radical version of Aristotle’s plea for context-speciﬁc equitable standards. The attractions of pragmatism are plain, but the general objection to broad standards applies in an acute form to pragmatism: there will seldom be agreement on what ‘doing what is best for the present and the future’ requires in any controversial case; thus, the virtues of predictability, transparency, and treating like cases alike will erode from the law.

3.3 Feminism

Feminists inﬂuenced by the work of psychologist Carol Gilligan have argued that the ethic of impartial justice is a quintessentially male construct—one that is in no way superior to the feminine ‘ethic of care.’ To illustrate the ethic of care, feminist legal scholars have fastened on the image of Shakespeare’s Portia, who pleads that the ‘quality of mercy’ should replace rigid legal justice. The ethic of care focuses on repairing relationships and is directed toward individual needs rather than rules, policies, or the best overall consequences; unsurprisingly, this leads some proponents of the ethic of care to favor ADR over formal adjudication. On the other hand, other feminists caution that the ethic of care is part of legal justice rather than an alternative to it; conversely, care itself becomes corrupted without the virtues of consistency, integrity, and even-handedness—precisely the virtues promoted by legal justice in its commonsense conception (West 1997).

4. Conclusion

It is often unclear whether law and economics, pragmatism, and feminism are intended as alternatives to legal justice or as alternative analyses of legal justice. In a sense, all the theories surveyed here are responses to two fundamental tensions. The ﬁrst is the tension between the rule of law, which subordinates particular cases to general rules, and the moral demand to treat particular cases according to their individualized merits. The second is the tension between the values of consistency, predictability, and stability that legal justice serves and the more utopian values implicit in the broader notion of justice simpliciter. It may well be that no intellectual approach can eliminate this tension, or reconcile the competing senses of the word ‘justice’

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