Podium: John Gardner - Why the law is not always just or humane

From a lecture by the reader in legal philosophy, delivered by him at University College, London

Saturday 22 October 2011 23:02

THE IDEA that law is intertwined with justice lies so deep in our consciousness that it barely attracts critical attention. Few eyebrows are raised at the fact that we know our judges as Mrs Justice so-and-so and Lord Justice such-and-such. That magistrates are also known as justices of the peace may strike us as a little old-fashioned, but it doesn't strike us as otherwise peculiar. When an Act of Parliament is labelled as an Administration of Justice Act it does not take a lawyer to work out that the Act is about the workings of the legal system.

Meanwhile, in many countries - just in case you think this is a local phenomenon - the government office charged with oversight of the working of the legal system is known as the Ministry of Justice or the Department of Justice. Wherever there is mention of laws and legal systems, in other words, invocations of justice are unlikely to be far behind.

When I say that this fact attracts little critical attention I don't mean, of course, that legal systems are widely regarded as paragons of justice. On the contrary, in most countries much ink is spilt, and in some countries blood as well, over injustices that have allegedly been perpetrated by and through the legal system.

The fact that our judges are known as Mrs Justice so-and-so or Lord Justice such-and-such is occasionally paraded as a nice irony, while the rebranding of Criminal Justice Acts as Criminal Injustice Acts, or Ministries of Justice as Ministries of Injustice, is grist to the mill of campaigners and headline-writers.

But in all this disagreement the assumption generally remains unshakeable on all sides that justice is indeed the correct aspiration for the law, so that a law or legal system that fails to be just is a law or legal system that fails in a respect fundamental to its worthiness as a legal system. In every impassioned denial that the law is just, there lurks, in other words, an equally impassioned re-confirmation that just is what it ought to be. That is why the ink, and the blood, are spilt over the alleged injustices.

Why should law be thought - by its defenders, by its critics, by itself, by the public, by anyone at all - to be the sort of thing that ought to be just? While philosophers have long debated whether an unjust law is really a law, I know of no corresponding debate about whether an intemperate law or an uncharitable law really is a law. Somehow, moreover, the titles Mr Loyalty so-and-so and Lord Courage such-and-such don't sound much like judges' titles (maybe a butler and an admiral?) and whatever the Ministry of Diligence or the Ministry of Trustworthiness might exist to supervise, it seems unlikely that either would exist to supervise the workings of a legal system (maybe industrial output and financial services respectively?).

Try comparing the just person with the humane person. These two characters might well converge on some pursuits. They might well converge, for example, on a campaign for the cancellation of the debts of poor countries in the developing world. But it does not follow that they both see the problem in the same light.

The nature of morality is such that there could be two incompatible ways forward, namely the just way and the humane way. For those of us who possess a modicum of both virtues, this incompatibility surfaces as moral ambivalence.

We are ambivalent about how to go about relieving the suffering that debt brings to poor countries. Do we support the humanity-oriented approach of Comic Relief, or the justice-oriented approach of Action Aid?

And we are similarly ambivalent about the long-delayed trial of ageing war criminals; the misery of Lloyd's Names bankrupted, sometimes, by their own failed money-spinning gamble; the failure of a National Health Service that is so busy prioritising that it loses the ability to respond with any fellow-feeling.

The contrasts between the just and the humane help us to see that the virtue of justice has no special subject matter of its own, no special goods or ills over which it presides, and which fill its horizons.

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