What Is Justice and Where Is the Last Instance to Determine It - Literature review Example

As soon as the human rights groups s that the law is unjust, the group is likely to be met by an opposing view from the legislator that –whose say – so establishes what is just and unjust? It is necessary to clarify a little common notion of justice which coincides with the classical definition of justice found in the Justinian’s Institutes:1 justice is the constant and unceasing will to render to each one his due. This definition depicts justice as a specific area within morality. This refers directly to the virtues of justice, but in so doing it provides some basic criteria to distinguish questions of justice from morality. A practical definition of law is that it is societys attempt to shape and regulate human conduct by means of signs, signals, and words, backed by the force of the state.2 Laws do not "hook onto" the real world by themselves; they must be interpreted and applied by the people who want to obey them and by the judicial system that wants to enforce them. Accordingly, the judge is preoccupied with matters of interpretation. This is the more reason why H.L.A. Hart has suggested that each word has a "core" incontrovertible meaning as well as indeterminate "penumbral" meanings. The objective of the law is for a harmonious society. The idea of a harmonious society is portrayed by Ronald Dworkin3 as one which every person is given what is due him or her. He begins his writing with the assertion that it is not a “childish fiction”, as Hart believes, that Judges never make law. He however admits law changes at the hands of judges, but he maintains that the body of the law itself dictates these changes. Such changes are discoveries of an underlying identity, so that a judge who announces a novel rule may actually be describing existing law more accurately. The judge should not act outside the law, or in the penumbra, as Hart named it. Judges always maintain that they arrived at the decision by following the law, not their own evaluative decisions. If judges were to step outside the law in their decisions they would be applying retroactive legislation. This would make the idea of the rule of law unjust. The judge ought to apply the law as it is and not as it ought to be. One thing the judge must know is that the law is impotent to influence the moral ideas current in the society. It is true that if the law clashes with ideas which are vigorously held in the community, there is strong likelihood that the law will be ignored or even boycotted. But it would be unjustified to conclude from this that a law which opposes prevalent views is necessarily bound to be ineffective. The point of this argument is simply to emphasize that even very private activities do often have important repercussions on others, especially when they are performed by a small number of people, and that therefore, it is in practice difficult to argue effectively that the law should not concern itself to issues concerning the minority. From this point of view, James Fitzjames Stephen was only realistic when he insisted that “only sinful thoughts and dispositions of mind” could be a priori excluded from the province of criminal law, but that any human actions which involved “some overt act” could not without more be so excluded.4 If the principles governing the making of laws are not moral, then the laws will not be moral either. Still, one would not want to say that the mere existence of these principles gives a moral nature to the laws. The judge should look at the guiding principles in the legal system. Hart maintains that a penumbra of uncertainty exists surrounding any law. He says the positive law makes up only the core area of law. This core is certain and definite. It is larger than the penumbra for any law. Where there is core law there are no questions. We follow the core of the law without thinking much about it. Hart states:5 “If a penumbra of uncertainty must surround all legal rules, then their application to specific cases in the penumbral area cannot be a matter of logical deduction… And it follows that if legal arguments and legal decisions of penumbral questions are to be rational, their rationality must lie in something other than a logical relation to premises… What makes such decisions correct or at least better than alternative decisions? Again, it seems true to say that the criterion which makes a decision sound in such cases is some concept of what the law ought to be” Despite the different conceptions on what is just and unjust in the eyes of the law, the true picture is that laws should be accepted by all so that all parties can "get along" in daily life, making the assumption that there is a commonality of meanings, and in practice this seems to work without too many rude surprises.6 Many scholars of law seem to regard jurisprudence and adjudication as techniques that a judge uses to establish the definite content of legal provisions applicable in a certain case. If an unambiguous conclusion cannot be reached, judges reckon that they have overlooked something or have to improve their legal skills. Quite often, they are disappointed that they cannot find objective and incontestable answers in the law. The true position is that it must be possible for us to grasp the meaning of a legal rule in a way which does not require recourse to interpretation.7 Legal positivists hold that it is the task of a judge to distinguish between the questions ‘what is the law?’ and ‘how should judges decide cases?’ The legal positivist does not deny that there may be a number of different solutions to a certain legal problem, but her approach is primarily explicative and not applicative viz. constructive. Marmor argues “that the rules constituting a language-game should be clearly distinguished from the background state of affairs in which there is a point in having such rules and against which they are intelligible” 8 Hart depicts a rule as having a core of certainty and a penumbra of doubt. This suggests that each rule has a central, indubitable aspect and also a peripheral but more questionable aspect, and that if there is to be growth, development, or differences of opinion, they will be restricted to this peripheral area. ‘They [rules and standards] will have what has been termed an open texture... uncertainty at the borderline’.9 Talking of clear rules and core of certainty on the one hand, and open texture and penumbra of doubt on the other, make us think of: “those wide areas of conduct which are successfully controlled ab initio by rule, requiring specific actions, with only a fringe of open texture instead of a variable standard.”10 If we want to know what is meant by ‘open texture’, we see that the explanation is as follows: Watchman states his view of the judicial function in the clearest possible terms at the outset of his introductory article: "The function of the judiciary is to do justice according to the law. This entails the interpretation of laws passed by Parliament and the adherence to precedent.”11 Thus, there should be a clear distinction between the legislation and the judiciary. Watchman, in commenting on this, cites with approval J.H.C. Morris’s criticism of Denning and Danckwerts LJJ. To the effect that, ‘by departing from the established rules of law the Court of Appeal seems to have usurped the function of the legislature.’12 It is true that the human rights group may find the law wanting in certain areas, but due to the fact that parliament is a duly elected body, it is for parliament and not the judiciary to develop the law, and Robson and Watchman even go so far as to say that ‘the remedying of defects and the filling of gaps in the law are tasks more properly for Parliament than the courts.’13 Social policy should be shaped by the elected representatives in Parliament, not by the unelected judiciary.14 As a judge, he should merely declare the law and apply it to the facts presented before him. This was commented by Lord Reid in Pettit v Pettit when he said: “We must first have in mind or decide how far it is proper for the courts to go in adapting or adding to existing law. Whatever views may have prevailed in the last century, I think that it is now widely recognised that it is proper for the courts in appropriate cases to develop or adapt existing rules of the common law to meet new conditions. I say in appropriate cases because I think we ought to recognise a difference between cases where we are dealing with ‘lawyer’s law’ and cases where we are dealing with matters which directly affect the lives and interests of large sections of the community and which raise issues which are the subject of public controversy and on which laymen are as well able to decide as are lawyers. On such matters it is not for the courts to proceed on their view of public policy for that would be to encroach on the province of Parliament."15 Therefore, so long as the external behaviour of man is concerned with the common good, there is no justification for the judicial authorities to concern themselves with this. This position was somewhat recognised and upheld by Aristotle when he remarked that the it is not the same thing to be a good man and a good citizen and that the laws only aim at achieving the second of these conditions.16 The attempt to criminalise an action or omission may of course become the occasion of important debates which may lead to reform. Much will depend on the moral standards which prevail in the community. As Aquinas put it, “many things may be allowed to people of mediocre morals which cannot be countenanced in the virtuous”17 and after making this remarks, Aquinas drew the following conclusion: “law is laid down for a greater multitude of people, of which the majority have no high standards of morality. Therefore, it does not forbid all the vices from which virtuous men keep away, but only the graver ones which most people can avoid, and mainly those which are harmful to others, and whose prohibition is necessary to the conservation of the community, such as murder, theft and similar ones”.18 Another fundamental consideration for allowing the laws which protect national security to prevail is the desire to give the nation an opportunity to exercise its freedom and self governance principles. This is in itself a great good which can easily be compromised when a paternalistic government insists on regulating minutely every aspect of the lives of its citizens in order to avoid any possibility of harm. Hart’s position that judges should strive to make a clean distinction between “what law is” and “what law ought to be” is ultimately untenable. Hart seems to believe that surrounding the penumbra of law is a settled core; that judges who set foot on this hallowed ground should, walk with the utmost reverence and in doing so, abandon preloaded moral judgments and act only to apply the “law that is.” In the best case, as Hart sees it, veering from this route presents judges with too many attractive alternatives to what the law is. Each one vies for his attention and all operate to dilute the core of the law and expand the area of the penumbra. In the worst case, the entwinement of law and morality turns into an instrument of despotism or that the existing law may supplant morality as a final test of conduct and so escape criticism. Hart makes two significant concessions concerning the relationship between law and morality. First, he references the utilitarianism and seems to agree with them here that the development of the legal system was profoundly influenced by moral views and second; that it might be possible and appropriate at times to incorporate moral principles into law. It may be the case that bringing moral opinions to bear may actually breathe life into legislative intent, since the “law that is” may not be the law that legislators intended. If it is okay to interlink the “is” and the “ought” then how does society prevent judges from inserting their own private moral opinions into law, thereby legislating from the bench? Since morality by nature is hierarchal, morality does not necessarily create more options for a judge to choose from. It may create less. In fact, since what the “law is” is often silent; bringing moral judgments to bear may illuminate a path. This answer is still not satisfying because it does not show how the core of law is necessarily protected from rogue moral opinions. Judges might refrain from radically altering the course of law if they were held to account more than what the status quo allows. In other words, if a judge, while blurring this “is” and the “ought” broke with past judgments and acted with questionable moral justification (meaning, out of step with society) than his judgment would be subject to review. On the other hand, there are certain cases in which the judge would not be obliged to follow legislation. The judge may decide to go beyond the actual words of a statute. He becomes, in effect, a legislator and the only basis on which he can legislate is his own conception of what the "public interest"; demands.19 As noted in the words of Lord Simonds “The duty of the courts is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited...” 20 The only exception seems to be matter of political opinion. Matters of political opinion should not be the basis of judicial decision making. As Lord Diplock put it: 21 “...it is for Parliament not for the judiciary to decide whether any changes should be made in the law as stated in the Acts...’ To act in any other way would be to involve the judges in ‘political controversy’. Such an involvement would endanger continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law…These opinions expose the fundamental weakness of Lord Denning’s approach. Regardless of how beneficial or otherwise the results of Lord Denning’s judgments in this field may be, they do tend to blur the crucial distinction between judicial creativity and political decision making. This point has clear and obvious dangers for the neutrality and independence of the judiciary.” If it could be established that the courts have introduced new rights and remedies where previously there were none, it could hardly be claimed that such adjustments were marginal. It is not for the judges to provide new remedies for new wrongs. Lawton L.J. in RCA Corp v Pollard made this very point, ‘but I remind myself that it is for Parliament, not the judges, to provide new remedies for new wrongs.’22 However, it seems that it must be accepted that historically the judiciary have usurped the functions of the legislation and that they continue to do so. The series of decisions from Langridge v Levy23 to Heaven v Pender24 which subsequently led to the establishment of the general principle of negligence in Donoghue v Stevenson25 must surely be seen as the judicial establishment of new rights. More recently there have been clear examples of the establishment by the judiciary of new remedies. The ‘Anton Piller’ order (as it has become known) is a substantial departure from previous practice. Denning M.R. opens his judgment in Anton Piller with the following words:26 “During the last 18 months the judges of the Chancery Division have been making orders of a kind not known before. They have some resemblance to search warrants. Under these orders the plaintiff and his solicitors are authorised to enter the defendant’s premises so as to inspect papers, provided the defendant gives permission. Now this is the important point: the court orders the defendant to give them permission. The judges have been making these orders on ex parte applications without prior notice to the defendant.” To assert that it is not the function of the judges to develop the law and if legal advisers and potential litigants were prepared to accept such a view, the rate at which the law develops would be significantly impaired. Lord Wilberforce in Lynch v DPP makes the point that:27 “The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt and particularly for setting the standards by which the law expects normal men to act…judges, accepts and sets the standards of right-thinking men of normal firmness and humanity at a level which people can accept and respect.” As per Lord Wilberforce, if the courts were to stand still the most likely result would be Parliamentary congestion.28 This was reinforced by Lord Scarman when in Furniss v Dawson he stated: “The limits ...remain to be probed and determined judicially. Difficult though the task may be for judges, it is one which is beyond the power of the blunt instrument of legislation. Whatever a statute may provide, it has to be interpreted and applied by the courts; and ultimately it will prove to be in this area of judge-made law that our elusive journey’s end will be found.”29 A similar point is made by Waller L.J. in the context of matrimonial property when he states that the matter with which he is dealing is not one which could readily be dealt with by legislation.30 BIBLIOGRAPHY Andrei Marmor; 2005, INTERPRETATION AND LEGAL THEORY (rev. 2d ed),  p185. Oxford and Portland, Oregon: Hart Publishing H.L.A. Hart, The Concept of Law (1961) p. 124 Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals” 71 HARVARD LAW REVIEW 593. Institutes Bk I, 1 J.F.stephen , A History of the Criminal Law of England, Vol II, (London 1883)p, 78; also cited in C.L. Ten, “Crime and Immorality”, (1969) 32, Modern Law Review 648 at p 653 Ronald Dworkin; “Law’s Ambitions for Itself” Marmor, Andrei. 2001. OBJECTIVE LAW AND POSITIVE VALUES. Oxford: Oxford University Press. [*276](p.113). Nicomachean Ethics, V, 1 Quine, Willard Van Orman. Word and Object. Cambridge MA: MIT Press, 1960. Robson and Watchman eds (1981) Summa Theologiae I – II, q.96, a.2 The Philosophy of Law: An Encyclopedia, C. B. Gray, ed. pp. 398-400, (Garland Reference Library of the Humanities, v.1743) Garland Publishing, (1999) (Code A955) Read More