The relationship between law and justice

Introduction

Having considered the topic of the content of justice, we can now turn to the second of our further two questions, namely what is the relationship between law and justice? We will approach the topic by considering some broad schools of thought in legal theory.

Legal theory is a very broad area of study and most individual legal theorists have concentrated their efforts on only one or two aspects of the whole subject. Since lawyers love to classify everything, it is not surprising that they classify legal theorists. Traditionally, many theorists have approached the relationship between law and justice in terms of the relationship between morality and law. We will consider both these positions in turn, beginning with the traditional classification which divides legal theorists into two groups, one of which argues for what is known as natural law, while the other one argues for what is known as positivism.

Natural law

Although all natural law theorists emphasise the role of morality in relation to law, closer consideration reveals that the natural law position as a whole can be further subdivided into two.

The first sub-group consists of those theorists who advance a strong version of natural law, by arguing that something which appears to be a law (for example, in the English legal system, an Act of Parliament) is nevertheless not truly a law if it is unjust. (In this context, the word unjust is normally used to mean something like violating the moral principles according to which humankind should live.)

The second sub-group consists of theorists who advance a weak version of natural law. These theorists accept that whatever the legal system asserts to be a law is, by definition, truly a law, while nevertheless insisting that the desirability of all laws must be assessed by reference to the requirements of natural law.

In very general terms, older versions of natural law theory tend to be of the strong kind, while more modern versions tend to be of the weak kind. However, both versions share a common problem, namely what are the requirements of natural law? Or, to put it another way, what is the content of the moral principles according to which humankind ought to live? Or, yet again, to link the matter even more clearly to our previous discussion, what is justice?

Very broadly speaking, if we go back to the beginning and regard all natural law theorists as a single group (disregarding for the present purposes the distinction between those who advance the strong and the weak versions) they will once again fall into two sub-groups. This time, however, the basis of the division between them will be different.

Members of one sub-group argue that the requirements of natural law (and therefore the content of justice) may be identified by reference to religious beliefs of one kind or another. Members of the other sub-group argue that it is possible to identify the requirements of natural law through the exercise of human reason alone, and that there is no need to introduce religious belief into this process.

All we can safely conclude at this stage, therefore, is that there may be significant disagreements, even between natural law theorists, as to what justice truly requires in a given situation. Similarly, in purely practical terms, each side to a dispute may genuinely believe that it has justice on its side, while disagreeing fundamentally as to what this means in terms of how their dispute should be resolved.

Positivism

The second main group of legal theorists regards the existence and the desirability of a law as being two quite distinct matters. For these theorists (who are generally known as positivists because they emphasise law as it is posited or laid down), anything is truly a law if it has been laid down as a law according to the formal requirements of the legal system in question. To return to the earlier example, within the English legal system, the provisions of an Act of Parliament are, by definition, law.

Among the positivists’ reasons for separating questions as to the nature of law from questions as to the nature of justice is that, as we have seen, the nature of justice is such that disagreement as to its requirements will often arise. From the positivist viewpoint, therefore, any definition of law which depends on the concept of justice is bound to lead, in some cases at least, to disagreement as to whether an alleged law is truly a law at all. Since law is an essential element in the fabric of society (because it enables – or at least helps – people to live peaceably in a well-ordered society), it follows that questioning the very existence of something which appears to be a law may amount to undermining, at least to some extent, the basis of society itself.

Before moving on, it is worth repeating that the positivists’ insistence on separating questions of the existence of laws from questions of their desirability does not exclude argument as to whether particular laws are just or unjust, or as to what the law on a particular subject ought to be. The positivist position is simply that the two matters should be dealt with separately.

How real is the distinction between natural law and positivism?

At this stage you may well be wondering what, if anything, is the difference between weak versions of natural law and positivism. The answer lies in the fact that, while many positivists accept that conclusions as to the requirements of justice rest on the moral principles according to which humankind should live (and therefore differ from natural lawyers only as to the point at which this consideration becomes relevant), others rely on matters which would find no place in natural law theory, such as the economic, psychological and public policy considerations which we discussed at pp.

Choosing between natural law and positivism

While positivists may challenge natural lawyers on the basis that if natural law were truly natural, it should be possible to formulate a single, universally agreed and coherent account of its requirements, so natural lawyers may challenge positivists on the basis that their concept of law is, in essence, law without values. If you study legal theory (which you may encounter under a variety of names, including jurisprudence or legal philosophy) in more depth, you may well conclude that there is something in both criticisms.

If your temperament is such that you like clear-cut categories and are therefore uneasy about living with doubt, you will probably align yourself with one or other of the theoretical positions, while persuading yourself that the objections to it are either unsound or relatively unimportant.

On the other hand, if your temperament is such that you can happily accommodate matters of doubt, you may prefer to avoid aligning yourself absolutely with either position. In this case, you will probably be saying (on the basis of your further study of individual legal theorists) that many members of each group have something useful to say about the nature of law, the nature of justice and the relationship between the two. If this is indeed your view, you will probably also conclude that to insist on applying an uncompromising label to yourself (and to other people) is a sign that you attach more importance to labels than to the substance of the theories which those labels describe.