Camaraderie Between Law and Justice

 Camaraderie Between Law and Justice   

         

Author:  Estevan Daniel Cardozo
3rd Year Law Student (BBA-LLB)

School of Law, Christ (Deemed to be University),
 Bangalore.

                                                           
                                                             ABSTRACT
  A word that the entire legal fraternity revolves around is ‘Justice’. Broadly speaking, justice, means the fulfilment of the legitimate expectation of the individual under laws and to assure him the benefit promised therein. The relation between justice and law is the foundation stone of any legal field. However, there has not been any clear definition of the word justice laid down due to its subjective outlook and its various intricacies. Various schools of law define justice and relate it to law in a way which they believe is ideal and their definition of ‘Justice’ is in accordance with the principles of that particular school. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. It is of utmost importance to define the word justice which is essentially the objective of law in society. The question that arises is what exactly is justice? And how is it deeply related to law? By studying the topic in depth clarity can be achieved amidst this lacuna currently present. The researcher tries to create a comparative analysis of the meaning of Justice and Law according to various philosophers and different schools of thought in order to analyse what are the components of justice and to comparatively analyse how the definition of both the terms and their relationship changes according to the different school of thoughts. In conclusion the researcher attempts at formulating a definition of justice which is congruent and contains features of every school of law in order to attain clarity on the subject.

Introduction
Law being the backbone of the entire nation, the very essence of law is to deliver justice in order to maintain peace in society. There is no universally accepted definition of justice due to its relation with various aspects such as morality, equality, etc.[1] Every school of thought of Law, may it be modern or traditional have devised their definition for the word in accordance with the school’s beliefs and principles. However, with the evolution of the legal fraternity, the definition of justice has gained a volatile character which differs from every school of thought of law.[2]Various Philosophers have their own views and arguments which justify the way they perceive justice as. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. This problem has highlighted a subjective lacuna in the legal field which will be studied in depth in the coming sections.
General Perspective of Justice And its Key Features
Justice is a complex concept and touches almost every aspect of human life. The word Justice has been derived from the Latin word ‘Jungere’ meaning ‘to bind or to tie together’. The word ‘Jus’ also means ‘Tie’ or ‘Bond’[3]. In this way Justice can be defined as a system in which men are tied or joined in a close relationship. Justice seeks to harmonise different values and to organise upon it all human relations. As such, Justice means bonding or joining or organising people together into a right or fair order of relationships.[4]Justice is understood to be the main objective of the entire legal fraternity as it not only helps in restoring peace in society but it also helps in maintaining societal welfare. Some of its key features are:
      ·       Justice is related to mutual relationships of persons living in society.
      ·       Justice is based on values and traditions of society. Norms and cultures of different religions and races have to be taken into consideration as various societal aspects form a vital part in the justice delivering process.
      ·       Justice is related to all aspects of human behaviour in society. The main objective of law is to maintain peace and security in society by governing human behaviour and making sure that individuals live in congruence with the laws laid down by the legislation. Laws are made and courts are set up with this aim in view.
      ·       The entire idea of Justice is providing equal rights, opportunities and facilities to all in a fair way.
      ·        Justice harmonises individual interests with the interests of society and places great importance on social responsibility.
      ·       Justices is a primary value and it is inseparably related to other values like Liberty, Equality and Property. The Scope of this subject is extremely vast and various eminent jurist as well as philosophers have studied this in great detail.
      ·       Justice is the principle of balancing or reconciling human relations in society in such a way as enables each one to get his due rights, towards and punishments.
      ·       Justice has several dimensions which branch out  to Social Justice, Economic Justice, Political Justice and Legal Justice. These Dimensions all revolve around the principle of benefit to the state and its people[5]

In order to define justice, each feature has to be included so that the definition will be universally accepted and will satisfy every school of thought and will go in accordance with their principles. This indeed is a huge task which all eminent jurists should tackle together in order to get rid of the lacunae existing in the definition of justice.

Justice according to various schools of thought of law

Natural Law is a philosophy asserting that certain rights are inherent by virtue of human nature, traditionally by God or a transcendent source—and that these can be understood universally through human reason. As determined by nature, the law of nature is implied to be objective and universal. The main aim of justice according to this school of thought is to deliver a verdict which places morality at a high pedestal. Natural Law is “discovered” by humans through the use of reason and choosing between good and evil. Therefore, Natural Law finds its power in discovering certain universal standards in morality and ethics[6]. Justice while delivered has to be done so by looking at a case from a moral point of view, which although does have its pros it also has its cons as sometimes morality and statutes do not always go hand in hand. An example of this is the ‘Speluncean Explorer’ case wherein a group of people were trapped in the cave and in order to survive had to kill one member which would act as food for the remaining. If this case is determined in accordance with natural law school of thought, Justice would be delivered against the survivors as what they did was for their survival and it was selfish on their behalf. Also taking someone’s life goes against morality and against religious scripts laid down. This reasoning is the way the natural school of thought looks at the problem, whereas other schools have their own opinions.
Positive Law is a school of thought which does not place much importance on morality. Legal positivism sits in opposition to natural law theories of jurisprudence, with particular disagreement surrounding the natural lawyer’s claim that there is a necessary connection between law and morality.[7]Positivist believe that law is the “command of the sovereign” and that the laws should be stringent and should punish offenders. In the case of the ‘Speluncean Explorer’ example, the survivors would be penalised for the crime they committed however the extent of the punishment will not be very harsh due to the circumstances they were stuck in. According to the positivist school of thought, it is better for one person to lose their life than all five of the explorers losing their life. This reasoning is what amounts to justice in accordance with Positive school of thought, a law. The greater good of society needs to be taken into consideration while delivering justice.  Section 377 of the Indian Penal Code, 1860 is an example of a positive law, this section specified that homosexuality is illegal in the country, However due to protests and with the development of the mindset of society, this section was amended and homosexual acts between two consulting adults in private is considered legal. When laws get unreasonably stringent they are amended by the legislation. The positivist school believe that laws should be followed whether good or bad, and section 377 of the IPC is the perfect example of a bad law being followed in India for a long time.

Philosophers and their Ideas of Justice

Plato was a Greek philosopher and is considered the most pivotal figure in the development of philosophy, especially the Western tradition. Plato in his philosophy gives very important place to the idea of justice. He used the Greek word “Dikaisyne” for justice which comes very near to the work ‘morality’ or ‘righteousness’, it properly includes within it the whole duty of man. It also covers the whole field of the individual’s conduct in so far as it affects others. Plato contended that justice is the quality of soul, in virtue of which men set aside the irrational desire to taste every pleasure and to get a selfish satisfaction out of every object and accommodated themselves to the discharge of a single function for the general benefit[8]. According to Plato, morality was an important aspect while delivering justice thereby he was a supporter of the Natural school of thought idea of justice.
Jeremy Bentham was an English philosopher and is regarded as the founder of modern utilitarianism. His idea of justice was conveyed through his quote “it is the greatest happiness of the greatest number that is the measure of right and wrong”. His idea of justice had a positivist approach as he believed that the law is laid down for every individual in general and should not be used by anyone according to their advantage which will give them an upper hand over others. He not only proposed many legal and social reforms, but also expounded an underlying moral principle on which they should be based.
John Austin was an English Legal theorist who believed that Justice should be delivered in a manner which does not take morality into consideration. He believed that “law is the command of the sovereign” and had a goal to transform law into a true science.[9] He was highly criticised for his definition of law as he failed to understand that the state at times does make faulty legislation, example of this is the Nazi rule in Germany wherein the laws laid down by the sovereign were faulty and infringed the rights of the citizens of Germany. Austin stated that laws should be backed up by credible threats of punishment or other adverse consequences also termed as ‘sanctions’ in the event of non-compliance.
Marcus Tullius Cicero was a roman Philosopher who influenced the development of Latin in Rome. Law, for Cicero, “ought to be a reformer of vice and an incentive to virtue.” He believed in the Natural school of thought of law and stated that both justice and law originate from what nature has given to humanity, from what the human mind embraces, from the function of humanity, and from what serves to unite humanity. His idea of justice was followed in the Roman Empire for a long period of time which helped in the flourishing of the Natural law theory and his idea of Justice.

Ideal Definition of Justice

There has been no universally accepted definition of justice as justice is a term which is very subjective in its nature. What may be termed as justice to one section of society may be considered ‘injustice’ to another section[10]. Justice always needs to be in accordance with the principles of Natural School of thought of law and Positivist school of thought. By merging the idea of justice of both these schools into one concise definition, it will not only give the word a dual dimension but will also lend credibility to the definition. The definition should contain the moral aspect and also the stringent aspect of positive law in relation with statues laid down. Unless this is done, the idea of justice will always remain a debateable topic with no real conclusion that can be derived. Although an impossible task to define justice due to its subjectivity, a clear understanding can be drawn of the function of justice and the crucial role it plays in not just the judiciary, but in maintaining peace internally in the nation and externally with other nations.
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Conclusion

Through researching through various articles the researcher aims at giving clarity to individuals seeking to know more about the definition of justice and its relation with law and schools of thought of law. In my opinion, Justice can not be defined in one single definition due to the various extensive intricacies however the concept of justice is fairly simple to understand by knowing the way various schools of law perceive justice and the reasoning they give which upholds their belief in justice. Justice is a vital element of the legal fraternity and needs to be safeguarded at any cost not just by the judiciary but by society as a whole and this can be achieved only by truly understanding the concept of Justice.

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[1] John P. Adams, Kent State – Justice and Morality, 22 Clev. St. L. Rev. 26, 47 (1973)

[2] Alexandru Florin Magureanu, Equity, Justice and Law, 3 J.L. & Admin. Sci. 223, 229 (2015)
[3] Collins English Dictionary, 12th Edition.
[4] Cahn, Edmond N. “Justice, Power and Law.” The Yale Law Journal, vol. 55, no. 2, 1946,
[5] Schmidtz, D., 2006. The elements of justice. Cambridge University Press.
[6] Robert P. George, Natural Law, 31 Harv. J. L. & Pub. (2008)
[7] Nonet, P., 1990. What is Positive Law?. The Yale Law Journal.
[8] Cooper, J.M., 1977. The psychology of justice in Plato. American philosophical quarterly.
[9] Kelsen, H., 1934. Pure Theory of Law, The-Its Method and Fundamental Concepts.
[10] Edmond N. Cahn; Justice, Power and Law; The Yale Law Journal, Vol. 55, No. 2 (Feb., 1946)

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