Philosophy Of Law And Justice Essay

Question:

Discuss about the Law and Justice.

Answer:

Law and justice are two words which have been used as synonym of each other. When law is discussed, justice is assumed to be present. However, these terms are quite different from each other. Law does not necessarily mean justice, and justice does not mean that it is law. Law denotes the rules, regulations, statutes and the legislations which have been drawn for the people and which have to be followed in both letter and spirit. Justice, on the other hand, denotes fairness, righteousness, impartiality and objectivity[1]. In the following parts, these very differences and mergence of these two concepts, i.e., of law and justice have been analyzed, to gain an understanding on their relationship.

Since Pluto’s time, the theorists of law and politics have wrestled with the issue of deciding whether justice forms a part of law, or whether the same is about the moral judgment regarding the law. The latter’s example can be highlighted in the concept of “unjust law”. A number of scholars have summarized their views in this regard and concluded that in reality, justice is about law’s judgment and there is no evidence to support the notion that justice is a part of law. And yet, this has been contended. To better understand these concepts, the literal meaning of these two have to be analyzed. Law is the rule of conducts which are regulated and backed by the penalties imposed by the state, for their contravention. And justice denotes giving the individual the thing which they deserve[2].

Hence, it can be stated that the laws are the guidelines or rules which have been set p by the social institutes so that the behavior of the people can be governed. Such laws are formed by the officials of the government and the same have to be strictly followed by the people, to which it applies. Law helps in setting standards, principles and procedures which have to be obeyed. Justice is mostly based on morality, ethics and righteousness. And it requires that each and every individual should be treated in same and equal manner. Justice can thus be stated as being a part of law, as all of the aspects are present in “justice” as a concept[3].

These two terms are used interchangeably, and often people are confused in these two terms, and believe that they refer to the same thing. Though, the very meaning of these two words differentiates between the two. This is because the law portrays the set of rules which clearly state what is allowed and what is not, on the basis of differentiations in the right and the wrong. However, justice always analyzes the situation which led to the incident to judge what was right or wrong at that particular instance. Hence, law can be stated as a system, and justice is merely a part or the concept under this system[4].

Law is something which is created by the officials of a nation, who have been elected by the people and represent their views, and as highlighted, it defines what is allowed and what is not. The law is enforced through the officials, for instance, the law enforcement officers. Law can be stated as the group of ideas which have to pass through votes, checks and balances before they can actually be deemed as law. And only after they are enacted can they actually come in full force. Any and every individual, on whom the law applies, has to adhere to it strictly, unless they have been exempted specifically. The enforcement of the law is ensured by the judicial system[5]. This is where the role of justice comes into play. The judiciary holds the people responsible for breaking the law and has the power of prosecuting them. Depending upon the nature of the offence and the degree of the same, the law is applied, for instance criminal law would be applied for an attempted murder and international law would be applied, when it comes to an issue between two different nations. On the basis of the analysis of a particular case, the judiciary delivers its verdict and this verdict is said to deliver the justice to the parties. So, the theme of the law is upheld through justice[6].


The most daring, as well as, most controversial philosopher of the twentieth century, Jacques Derrida, always emphasized upon the differences in these two concepts[7]. In Derrida’s words, justice was not something which was outside the law instead it was something which helps in the law’s transcendence. He believed that justice was just another word for ethics and also stated that there were no such norms or rules which could govern a just response. He also argued that justice was a process which required to strategy, conditions and context to be taken into account[8]. He believed that in order to get a just response, time had to be invested on the basis of the singularity of a particular situation. Derrida also undertook a deconstructive analysis of the two concepts and in this analysis he observed that law and justice never formed an external or internal critique of the legal positivism. Instead these two concepts investigated upon the conceptual frontier of the very notion of law. He contented a radical heterogeneity between justice and law, which led him to conclude that law, had nothing to do with the concept of justice[9].

In order to throw light on law orthodoxy regarding the law being a peaceful and neutral arbitrator, Derrida contended that there was supremacy of homogeneous and singular law, which would be sustained by force. Hence, it could be stated that in this sense, the law is authorized force. Law is construed, as per Derrida, on the interpretable textual strata, and this is agreeable to the deconstructive analysis. Conversely, justice cannot be deconstructed as it goes beyond the reasonable calculations. In the views of Derrida, justice has a relationship with the other and the same cannot be merely mediated or determined by the construct of law. Hence, it requires to be reached out to the other, by the experience of unfoundedness and instability of law. And due to these reasons the questions pertaining to justice are born at the limits of law, instead of being internal or external to the law[10].

Even though the differences have been expressly and quite vocally be put forward by Derrida, he believes that the two concepts are not opposed. Justice is such a response to the law, which cannot be calculated and depends on the given situation. The rules cannot account the “otherness” of a particular case and hence, justice requires reconciliation amid the other and the rule. Every decision is different and each case is the other which necessitates an absolute unique interpretation. And this cannot be guaranteed absolutely by an existing coded rule. So, to law, justice can be stated ass a deconstructive attitude. And with regards to the otherness and the singularity of the case, justice has the opportunity of reconstructing the law[11].

Another leading thinker in this regard, Hand Kelsen argued that the law and justice were two separate things and even went on to state that these were unrelated to each other. As per Kelsen, justice is indeterminate and has even called for a clear separation of these two concepts. He has also acknowledged that certain laws can be deemed as just and the other as unjust. However, he has relegated the justifying of law, which is a problematic task in his word, to the social and religion metaphysics. And even after these statements, the role of justice in the law has been acknowledged by Kelsen[12].

He believes that under the law, justice means legality. Hence, it was just to apply the general rules in each and every case, where the rules have to be applied, as per its content. However, it would become unjust where the rule is applied in a particular case and not in the other similar cases. Hence, to further his claims regarding the separation of justice from law, Kelsen made three key points. The first being that the law is determinate, however justice is not; this is followed by the question on whether or not the consideration of law being just, as an external to legal system; and the last being that under the law, justice was simply the rule of law, which has to be applied in each and every case which is under that particular rule[13].

Even though there are differences between the law and the justice, however, they do have a number of similarities. Law and justice both form a part of society and encourage the people to be moral and bring a balance in the community. Plato, the Greek philosopher believed that the law has the ability of providing justice and inner harmony in the state. And he further believed that these could be used as the moral educators. And this notion is quite right as justice and law are required to have a harmony between them, as they work together and help in bringing a balance in the society. Moreover, due to their similarities, they co-exist with each other, and the existence of one, without the other, is not possible. This is because the ultimate goal of law is to bring justice and order to the society and to punish those, who harm the society. The law is a tool, using which the justice is delivered. Without justice, there is no purpose of the law, as the compliance of law cannot be fulfilled without presence of justice. Similarly, justice cannot be delivered till the time there are specific rules to give a fair and equal decision, which is consistent in similar cases[14].

To summarize this discussion, law and justice are two different terms, which co-exist to be meaningful. A range of discussions have been carried over the inter-dependence and the differences between the concept of law and justice. And even though a lot of literature has been written over the difference in these two concepts, the point cannot be denied that these two concepts need each other to satisfy their purpose. This is evidenced from the statements made by both Derrida and Kelsen, where even though they have emphasized upon law and justice being two separate things, they remain a crucial aspect of each other. Hence, it can be concluded, that the relationship between law and justice is quite complex.

Bibliography

Articles/ Books/ Reports

Davies MJ, Asking the Law Question (Law Book Company, 2008)

Glendinning S, ‘Derrida and the philosophy of law and justice’ (2016) 27(2) Law and Critique.

Kellogg C, Law's Trace: From Hegel to Derrida (Routledge, 2009)

Parry JT, Evil, Law and the State: Perspectives on State Power and Violence (Rodopi, 2006)

Sarat A, and Kearns TR, Justice and Injustice in Law and Legal Theory (University of Michigan Press, 2009)

Scott SD, Law after Modernity (Bloomsbury Publishing, 2013)

Turner C, Violence, Law and the Impossibility of Transitional Justice (Routledge, 2016)

Wacks R, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press, 4th ed, 2015)

Others

Canadian Superior Courts Judges association, ‘The Role of the Courts’ (2006) <

D'Amato A, ‘On the Connection Between Law and Justice’ (2011) <

Difference Between, ‘Difference between Law and Justice’ (2017) <

Schillmoller AL, ‘LAW00520 Philosophy of Law, 3rd edition’ (2011) <

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