Academic

Green on Law & Justice

By Lawrence Solum

Leslie Green (University of Oxford - Faculty of Law) has posted The Germ of Justice on SSRN. Here is the abstract:

This paper addresses the perennial question of the relationship between law and justice. HLA Hart argued that ?we have, in the bare notion of applying a general rule of law, the germ, at least, of justice.? If true, this establishes a necessary connection between law and morality. hat is no objection, for the so-called ?separability thesis? is anyway false. But the ?germ-of-justice? thesis is also false. Justice is a matter of the correct allocation of benefits and burdens among people.

Contrary to what Hart and others think, there is not necessarily any injustice in failing to apply a valid legal rule, not even an ?administrative? injustice. It is readily conceded that ?formal justice? is not enough in law, that we also need ?substantive justice.? This too is a mistake. Formal justice is not insufficient; it is incoherent--all justice is substantive. Might constant rule-application do justice by promoting impartiality? Not necessarily. It depends on the content of the rules and on the nature of the of the adjudicator?s prejudices. There is nonetheless a weak connection between law and justice. Every legal system has courts whose job it is to aim at justice: they must decide not only whether plaintiff deserves a remedy, or whether the prosecution is entitled to a conviction, but also whether these should be ordered in the face of a claim to the contrary. Courts have an allocative job to do. This does not show that they must achieve justice, or even a minimum of justice. Nor does it show that justice is the first virtue of legal institutions. The connection between law and justice is real, but modest. Justice is a necessary aim of a necessary legal institution.

Highly recommended.

Full post as published by Legal Theory Blog on November 08, 2010 (boomark / email).