Is Justice a Precondition of Law?

(This is an essay I submitted to the Minds Underground Essay competition, for which I was highly commended.)

It is one of the most basic of any legal system’s assurance: their promised deliverance of justice. However, the question of whether justice is a precondition of law is one that has continued since the work of Plato circa 400BC, nearly 2500 years ago. Legal philosophers over many years have introduced a myriad of arguments and theories surrounding this, however, considering arguments from both sides, at present, justice is not a precondition of law.  

Before getting into the arguments, one ought to lay out the definitions of the two key terms: ‘justice’ and ‘law’. This alone could call for an essay, even a book, of its own. One could delve into the works of Bentham, Aristotle, and other great philosophical minds. For this essay, I will be taking ‘justice’ to mean fairness and moral rightness, so as to avoid any complications (Law.com, n.d.). Due to the vast array of different schools of legal thought, there is no single, universally accepted definition of ‘law’. As such, I will take the most basic definition, as found in the Oxford English Dictionary: ‘a rule of conduct imposed by authority’ (OED Online, n.d.).

The Rule of Law consists of four key principles: accountability, that is the government and private entities being held to the word of the law; just laws, being clear and stable and protecting the fundamental rights of all; open government, demanding that the process by which laws are enacted is fair and efficient; and accessible justice, meaning that all judgements are to be given by an independent and neutral party, and delivered ethically (World Justice Project, n.d.). This means that justice must be a precondition of law – the idea featured in two of the four. However, so often we find that justice gets lost somewhere along the way. We can see this injustice everywhere, so how can we argue that law is inherently fair?

The complexity of justice presents itself in a number of debates that have continued for many years, decades even, and one’s understanding of fairness in these circumstances depends on one’s beliefs. Perhaps one of the most prominent examples of this is abortion. In the UK, under the Abortion Act of 1967, a doctor may carry out an abortion, which has been previously authorised by two other medical professionals, up to the 24^th week of gestation. This is a controversial document; while some think that this legislation is vital for the protection of women’s rights and their control over their bodies, others believe that abortion is murder and should not be legal at any stage during pregnancy, no matter the circumstances. Looking at an issue as widely discussed as this, with strong support for both sides, how does one determine what is just here? Different schools of philosophy may tell us that the law allows for the greatest happiness for more women, taking a utilitarian perspective, however others may argue that the future of the child is unknown. A point made often by those who oppose the law is that perhaps the foetus may grow up to save lives or find a cure for cancer, therefore how can it be right to go ahead with the procedure. This is just one example of how complex justice is, and considering this, justice cannot be a precondition of law, if a law cannot bring justice to everyone.

Another level of nuance comes with the understanding that justice is not fixed – it changes all the time. What 50 years ago may have been considered fair and right may be disgraceful in modern society. Throughout history, we can see an innumerable array of laws which many of us would now consider lacking any fundamental justice. Nazi Germany provides a clear example, in their 1935 Nuremberg Laws. This legislation stripped Jewish people of their German citizenship, forbade the marriage of an ‘Aryan’ and a Jew, and banned Jewish communities from wearing ‘colours of the Reich’ (Kroslak, 2015). This led to Jewish families being segregated from the towns and cities they had likely lived in for many generations. We would now consider the actions taken in the 1930s under Hitler to be absolutely appalling, but there were masses of the German public that supported the legislation. These were laws but showed no justice as we would consider it. Similarly, we could consider segregation laws as an example of the changing perception of this concept. The Jim Crow Laws, for example, enacted in the late 19^th and early 20^th centuries, and have a lasting legacy, reimplemented widespread racial segregation in the American Southern States. (Mack, 1999) A marriage or union between a black and a white person was forbidden, children of different races could not go to the same school, white nurses could not tend to black men. These were just some of the regulations put in place in order to fuel a sense of ‘white superiority’ and they called back to the time of slavery in the Confederate states. This goes against any sense of modern justice, though the vast majority of the white population supported them, having had the understanding that white people were ‘Chosen by God’. In 2021, people would consider this completely unfair, but they remained valid documents until 1964, when the Civil Rights Act was passed. This not only shows the shocking way in which societies made it possible to legally persecute people because of their race or religion, but also that we cannot argue that justice is a precondition of law.

Critical Legal Studies is a branch of legal philosophy that argues that laws are enacted to support the interests of those who created them and are in power. It is inherently linked to social biases and helps maintain a certain status quo. A tyrannical leader will therefore implement tyrannical laws, and a democratic authority democratic laws. (Tamirat, 2015) If we consider it through this lens, the role of justice in the law must be limited. Where law is serving as a device to manipulate members of society to submit to the will of their leaders, then one cannot consider justice to be present, or to be a precondition of such principles. A key part of CLS is the understanding that the law tends to serve the wealthy, subverting the demands of the subaltern. (Hutchinson, A., and Monahan, P.J., 1984) This is vital in answering the question of whether justice is a precondition of law, as while many laws claim to be in the interest of the poor or minority communities, they are often simply not. These groups do not receive their promised justice. There must be significant reform in order to realise the objective of justice, but this change is far too great for current legal discourse to recognise.

On the other hand, one may argue that justice cannot come without law, therefore they must be closely connected. As D’Amato argued in his 2011 paper, in any legal proceeding, the law shapes testimonies and stories, meaning the justice in the situation is also influenced, and thus they must be inherently linked. Consider the following example: you are on a walk down a country lane, and you find a blackberry bush and begin to eat them. A police officer then arrests you. Is this just? We cannot answer this question until we examine the laws in place here, for example were you on private land? The judge would not be able to make a fair decision without the appropriate legislation considered. Therefore, justice and the law must be connected in such a way that makes one impossible without the other.

Naturalist Law Theory is a branch of jurisprudence that argues that justice is the foundation of the law. People who follow this philosophy would say that human laws are defined by morality, not by an authority. (Murphy, 2019) This theory states that all people are to live a good, happy life, and any action that makes this impossible is immoral; it also suggests that a law that cannot provide justice is not a law at all. As such, the relationship between legality and morality is one that runs so deep, that perhaps they are actually one and the same. Moreover, the definition of an ethical deed, in this school of thought, is not subjective – ‘right’ and ‘wrong’ are the same for everyone. Therefore, the argument of differing justice depending on the side of the debate would be null and void. This is a key limiting factor of this branch of jurisprudence, as we can see, globally, how people’s perception and understanding of justice and what morality looks like varies.

The debate on the connection between law and justice will likely continue to rage for the next 2500 years, as the focus of legal discourse moves towards what really needs to be done to make justice accessible for every person. But considering the key arguments, as Gloria Steinem said, ‘law and justice are not the same’, and ultimately, justice is not a precondition of law.

Bibliography:

Oxford University Press OED Online, accessed 20/01/21, ‘Law’ Definition [Online], law, n.1 : Oxford English Dictionary (oed.com)

Law.com, accessed 20/01/21, ‘Justice’ Definition [Online], Legal Dictionary | Law.com

World Justice Project, accessed 21/01/21, ‘What is the Rule of Law?’ What is the Rule of Law? | World Justice Project

Kroslak, D., 2015, ‘Nuremberg Laws’

Abortion Act, 1967, Section 1, Subsection 1 (a)

Mack, K.W., 1999, Law, Society, Identity and the Making of the Jim Crow South: Travel and Segregation on Tennessee Railroads, 1875-1905

D’Amato, A., 2011, On the Connection Between Law and Justice

Tamirat, accessed on 23/01/21, ‘Law as a means of Serving Justice’ Law as a means of Serving Justice (abyssinialaw.com)

Murphy, M., 2019, ‘The Natural Law Tradition in Ethics’, https://plato.stanford.edu/archives/sum2019/entries/natural-law-ethics/

Hutchinson, A., and Monahan, P.J., 1984, ‘Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought’