The Philosophy of Law by Gray Christopher B

Author:Gray, Christopher B.
Language: eng
Format: epub
Publisher: Taylor & Francis Ltd

Justice

The usefulness of invoking “justice” as a standard for criticizing law is a matter of everyday observation. If someone claims that a given legislative enactment or judicial decision is unjust, the typical response is not “What do you mean by ‘unjust’?” but rather “Why do you think it is unjust?” This reflects the fact that most people seem to have a fairly developed sense of injustice, one that they are willing to use as a (presumptively) shared criterion for arguing about statutes or rulings. Although the term “unjust” is surely broad and vaguely contoured, in normal discourse it is not considered vacuous.

Let us first consider the application of “justice” to legislation and later turn to adjudication. Justice is certainly not part of the criteria of validity of legislation. Parliaments are free to enact laws of their own choice, although many states require that the statutes comport with the state’s constitution. Constitutions do not contain a “justice clause” that would serve to invalidate laws that are not just; to have such a clause would be to make the judiciary into a superlegislature (for it would be the task of the judiciary to determine which laws are just). Hence the test of constitutionality of a statute is not a justice test.

To be sure, under William Blackstone’s conception of law, there are certain kinds of legislative enactments that are so blatantly unjust that Blackstone would deny them the status of “law,” such as laws that command people to do the impossible. However, Blackstone’s conception with its overtones of natural law has not survived to the modern era. Today, any law enacted by the legislature is a “law,” leaving the citizenry with the limited choice of either criticizing a given statute as unjust or opposing the reelection of the legislators who enacted it.

Since legislation is primarily devoted to the general allocation of valued goods in a society, “justice” is an appropriate critique of such legislation. For, as David Hume pointed out, claims of justice arise because of the competition for scarce goods in a society. In evaluating particular statutes, we are operating within the general rubric of “distributive justice.” However, political theorists and moral philosophers through the ages have painted with a broader brush. They have attempted to consider the most general types of legislative allocations that would spell out the structure of a just society. Plato would assign people to permanent stations in life according to their natural talents as ascertained in their childhood. The immobile, stratified society of Plato’s Republic may strike some observers as just, as Plato intended, and others as the opposite of justice—Karl Popper called it totalitarian. In the nineteenth century, Henry Sidgwick claimed that a just society would give every person what he or she deserved. Individuals’ just deserts might be measured by their moral virtue, their productive efforts, their capacities, and so on. In the same century, Karl Marx allocated social goods to each person “according to his needs.” However, Ayn Rand, among others, effectively showed that

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