Lloyd D.

, The Idea of Law (Penguin Books,

1981), Chapter 6: Law and Justice. Law and Justice tt7
that law without justice is a mockery, if not a contradiction.
6 Law and Justice Some attempt will therefore be made in this chapter to
clarify rvhat is meant by thc term 'justice', and its relation
to law, before attempting to come to grips irr the subsequent
chapter with the problerns which are encountered in seeking
to give effect by legal machinery to the particular set ol
values prevalent in our otvn Western society.
In the previous chapter an attempt was made to show how
law neids to be rehled to the system ofvalues recognized in wr{A'r rs ;usrrcn ?
tJre particular community in which it operats. Such a system
of vllues may and in fact does differ from place to place and One point must be plain at the outset of this inquiry, and
from period io period. Though it may be impossible, as the that is that justice, whatever its precise meaning may be, is
positivist is disposed to think, to demonstrate the absolute itself a moral value, that is, one of the aims or purposes which
iuperiority ofany particular system over all others, actual or man sets himself in order to attain the good life. If all the
possible, nevertheless if a community believes that its values moral purposes of human life are classified as othe good'
are the highest attainable it will clearly judge the existing then the idea of justice is no more than one of the various
law in aciordance with those values and try to amend or 'goods' which morality sets before mankind. A particular
adapt itwhere it falls short of them. 'good' may function either as a means or as an end in itself.
For instance we may regard happiness as an end in itself and
Ii may be said, however, that this is all very r'vell as an liberty as a means of attaining happiness, rather than as
approximate description of how law tends to function, at
something good in itself. In other words we may classify the
least in enlightened communities which enjoy a fair degree of
harmony as to their basic aims, but there is a more general various'goods'or'valuest of human society in a hierarchy
prlrpose that the law everywhere aims, or should airn' at so that some of these are merely means to attain higher
values, all leading to son'te ultimate good. Thus under the
ichieving, and that is Justice'. The idea of law, it may be
urged, his always been associated with the idea of justice, utilitarian system the ultimate good is'the greatest ha.ppiness
rrrd if it is agreed that this represents the ultimate goal to of the greatest number' to which all other 'goods' are sub-
which the law should strive, then we can arrive at the purpose ordinated.
As we have already argued, what e's the ultimate good is
of law more directly, without becoming entangled in the
a matter not of demonstration but of choice, and we could if
values of particular societies with all their conflicts and un'
certainties. For, after all, are not those values themselves, so we wished place justice itself upon this pinnacle. Indeed
some lawyers, and even some outstanding philosophers, such
far as they seek to be embodied in the lar,vs of the community,
as Plato, have placed justicer at the summit of the moral
merely an individual expression of the general striving
towards justice itself ?
world. The Hebraic attihrde to ethics and law, to which we
have alrcady referred, also seems to share something of this
This question is clearly one of fundamental importance in-
approach.
an undeistanding of law, in view of the wide acceptance of
the view (symbolized by the statue of Justice holding the What meaning then can be ascribcd to this pervasive idea
scales erected over the Old Bailey, the Central Criminal
ofjustice ? We have already mentioned the central role that
justice piays in the Platonic ethic, so perhaps a good starting
Court of London) that law must be assimilated to justice and
r IB The ldea of Law
Law and Justice r rg
point for our discussion would be to refer briefly to Plato's adapted to each person's natural attainments or aptitudes.
conception ofjustice and see whether this seems to provide Moreover, even the division between freeman and slave is
the answer we are seeking.
fitted into this pattern, for, as Aristotle subsequently argued,
some men are slaves by nature, and therefore only fitted for
PLATONIC JUSTICE servitude. Nor did Plato find any room in his just society for
such emotional factors, which many would regard as of the
In his famous dialogue, now called the Republic, Plato sets out
essence ofmoral values, as charity, benevolence, or philan-
to explain what is meant by justice. For Plato the microcosm
thropy. On the whole then Plato's conception of justice is
of thejust man is a reflection of the pattern of thejust society.
unacceptable in principle apart from being, by modern
IIe therefore seeks to arrive at the meaning of justice by Western standards, a quite inadequate criterion of any ulti-
depicting what a just society, conceived as an ideal society, mate good which our own society may aim at achieving.
whether attainable on this earth or not, might be like. Such a
society will be just, in Plato's view, because it will conform
to his conception ofjustice. This conception seems to be that FORMAL JUSTICE AND EqUALITY
every thing or person - for Plato thinks justice applies to Conceptions of justice may vary fi'om age to age. This is
objects as well as people - has its proper sphere and that sufficienrly illustrated by the fact that for the Greeks justice
justice means conforming to that sphere. For instance, a tool,
essentially embodied the idea of inequality, since the very
such as a saw or art adze, has its proper sphere of use in lack of natural equality between human beings (as well as
carpentry, which Plato regards as 'just'; so, too, the car- physical objects) called for different treatment, whereas it
penter or the physician has his appropriate sphere, namely may be ventured that in modern times equality has been
carpentry or healing the sick, performance of which to the regarded as the very essence ofjustice. It is indeed the attain-
best ofhis abilities represents 'justice'. fn the same way, only
ing of equality, not the preserving ofinequality, that modern
the wise man is fit to rule, so that in ajust society he alone will
moral and legal philosophy treat as the vital function of
act as ruler. justice.
This view ofjustice will hardly commend itself to modern This idea ofjustice being linked with equality of treatment
libertarian patterns ofthought. For it is obviously based on undoubtedly owes much to the association of justice with
the aristocratic idea that every person is inherently adapted
legal proceedings. The law is supposed to be applied equally
to some specific function and that if he departs from that in all situations and to all persons to which it relates without
function he is guilty of injustice. This somewhat resembles fear or favour, to rich and poor, to powerful and humble
the feudal idea ofthe three orders ofsociety, priests, warriors,
alike. A law which is applied without discrimination in this
and labourers, each with their own self-contained function, way may be regarded as the embodiment ofjustice. What
which was not to be overstepped. Plato does of course go far needs also to be noted is thatjustice in this sense is really no
beyond the feudal idea in arguing that the potential rulers more than a formal principle of equality. Nor can it be
are to be selected not by birth but by attainments, coupled
regarded even as a principle of equality without qualifi-
with an elaborate and prolonged course ofeducation, before cation. Justice cannot mean that we are to treat everyone
being qualified to rule. All the same Plato's system seems alike regardless of individual differences, for this would
based on the fallacy that each man is by nature fitted for one
require us, for instance, to condemn to the same punishment
specificjob or function and that there is such ajob or {irnction everyone who has killed another person, regardless ofsuch
 r2o The ldea of Low Law and Justice r2t
factors as the mental incapacity or infancy of the accused. humbler sections of the community, to enable them to seek
\Arhat this formal principle really means is that like shall be justice on an equal footing with those who possess natural,
treated as like, so that everyone who is classified as belonging social, or economic advantages, which otherwise would weigh
to the same category, for a particular purpose, is to be treated heavily in their favour. A cynical English judge of tf,e
in the same way. For example, if the vote is extended to all Victorian era once remarked that .the law, like-the Ritz
citizens offull age by the franchise laws of a given state, then Hotef is- open to rich and poor alike'. A notional equality of
.iustice requires that all persons qualified in this way shall be this kind is of little service to the impecunious, and-ocllrn
allowed to exgrcise his or her vote, but justice would not be legal systems have tried to bridge the gup by providing a
infringed by the exclusion of aliens and infants from the list state-finan-ced system oflegal aidlo enable p"opi. of mod"est
of voters. means to litigate on a basis of equality witli their richer
In other words formal justice requires equality of treat- opponents.
ment in accordance with the classifications laid down by the We,shall say a little presently about horv the gap between
rules, but it tells us nothing about how people should or ^
{brmal and substantial or conirete justice has to be filled..r"
should not be classified or treated. It follows that formal For the moment we will examine in rather more tletail the
justice is a rather empty category, resembling somewhat attributes ofjustice in the purely formal sense. The idea of
Kant's categorical imperative, since if it is to be given a justice embodied in the principle of treating like
cases in the
specific content other principles than mere formal equality sarne way, seems, when expanded, to involve three related
will need to be appealed to. A franchise which confers the conceptions: first, that there shall be rules laying d.own how
right to vote only upon males, or persons belonging to a par- people are to be treated in given ,."orrJ, that such
ticular racial or religious group, may bejustly applied in the rules shall-be general in character,"ur"r;
that is to say, that they
formal sense that all those classified in this way are treated shall provide that everyone who qualifies as failing within
equally; whether we are prepared to acknowledge the justice, the scop,e of the rule shall be gorr".n"d by it. (In othe"r words,
in a concrete sense, ofa classification on these lines, is a very it must be applied either to persons generaliy, or to certain
different matter. Clearly,lr.owever, no purelyformal principle ga!!S91ies of persons as defined, and not merely to ranclom
oftreating like as like lvill suffice to resolve this sort ofproblem individ-uals.) In the third place, justice requires that these
since we need further principles for deciding which differ- general. rules shall be irnpartially applied, that is to say, that
ences are to be treated as relevant. On the ground ofequality the agencies concerned in adminiitering them shall'apply
alone we do not know whether or on what basis we are to have them without discrimination, or fear or iavour, to all t^htsl
regard to or ignore differences ofsex, race, religion, birth- whose cases fall within the scope of the rulcs. If, for instance,
place, physical prowess or mental attainment, or lvealth or it was a rule of a trade union that any male workcr ovei
influence. People are not in fact born equal either physically, eighteen was entitled to be admitted as a mernbcr, it would
mentally, or in other respects, so that the classification of not be in accordance with forrnal justice to refuse sonreone
equality between human beings remains of necessity a mere who qualifies with the requiremenls bccausc he is an alien,
formality until we have proceeded to indicate how we are any more than it would be just to admit a fernale wor*er or a
going to divide people up into further sub-groups according male who is only sixteen.
to what are regarded as the moral or social needs of the
particular society. Moreover even treating people equally
may involve special arrangements in favour of the poorer or
 r22 The ldea of Law Law and Justice t2g
debt owed by the state (in which case decisions would have
to be made in accordance with law, rather than justice,
SUBSTANTIAL JUSTICE whether these coincided or not) but to what each individual
It will be apparent from this expansion of the ideas involved may be able to show he is just\ entitled to. It is obvious that
in formal justice that suchjustice amounts to little ifanything some criteria would have to be established by which one
more than working out the logical consequences of what it claim might be preferred to another. The administrator of
means to apply a system of rules. The very idea of treating the fund would have to decide whether he is to reward actual
like as like, ifit means anything, means that there is a system achievements (and how these are to be evaluated), or effort,
ofrules applicable to like casesl a rule can hardly be said to or work, or triumph over adversity, or to compensate for
be a rule at all unless it applies generally to whatever persons physical or economic deficiencies, and so on. fn other words,
or situations fall within it; and if the rules are not applied he would have to establish a scale of values which would
impartially in accordance with their terms then there is guide him in discriminating between the various competing
really no system ofrules at all. It is hardly surprising therefore claims. Is it not then obvious that these values will have to
that a conception ofjustice which amounts to no more than be based on something other than justice itself? Justice can
giving effect to the logical implications of rules deals with tell us, as a rational principle of coherence and regularity,
little more than the procedural aspects ofjustice and tells us that an administrator who has chosen to prefer achievement
nothing about how we are to assess whether the actual rules to effort has or has not been guilty of applying that principle
themselves arejust. To achieve substantial or concretejustice unjustly between two competing claimants. Again, justice
the formal requirements of justice therefore need to be can tell us whether a person has been unjustly excluded from
supplemented in two ways. exercising his vote in accordance with the franchise laid
(r) Concrete Justice : How are we to decide whether the actual down. \Alhat justice cannot tell us is whether it is right to
rules are themselves just ? A franchise which is conferred only prefer achievement to effort as a sub-iect for reward, or to
on males over twenty-five may, if impartially applied, satisfy limit a franchise to males, to the exclusion of females. The
the requirements of formal justice, as we have seen, but we criticism orjustification for these decisions has to be sought
also want to know whether it is substantially just that the in some wider criterion or principle than justice can itself
franchise should be limited in this way and not extended to afford.
females or to males who have not attained the specified age This conclusion is indeed hardly surprising when we
group. Inhis Ethics, Aristotle refers to what he calls distributiae consider that justice is little more than the idea of rational
justice, which deals with the distribution of honours and order and coherence and therefore operates as a principle of
rewards by the state to persons according to their deserts. procedure rather than ofsubstance. (This is not to dcnigrate
This same idea of justice is also expressed by the Roman procedure, which is, as we shall see, of enormous importance
Emperor Justinian in the codification of the Roman Law in attaining legal justice.) \tVhat values we care to affirm are
associated with his name, when he asserts that justice con- a matter not of logical necessity but of choice. This does not
sists in 'giving to each man his due'. But what is due? How imply, of course, that our choice is absolutely free, for in the
do we assess merit or worth ? Suppose the state establishes a first place it will be deeply conditioned by our history and
fund upon which all the citizens are entitled to make claims traditions and by our social and economic environment.
according to what is 'due' to them. Suppose also that for this Moreover, there seems no reason why a choice ofvalues, like
purpose 'due' refers not to a legal claim in respect of some other choices, should not be capable of being justified by
 rz4 The ldea of Law Law and Justice t2S
rational argument.2 All the same, the truth ofscales ofvalues cation in the sphere of criminal law, for though justice may
cannot be logically demonstrated but has in the last resort require a conviction, as only the maximum penalties are
to be accepted or rejected, because we feel that we cannot do fixed flexibility in sentencing is allowed for, so that the
otherwise. This is what Hume had in mind when he re- punishment can be adjusted to the particular case. Capital
marked that it is 'not reason but the passions' which impose punishment, when fixed as the sole penalty, does not lend
our moral criteria, itself to equitable administration, and on this account has
It should be understood that though the criterion ofequali- sometimes resulted in a guilty man being 'unjustly' acquitted
ty operates in the idea ofjustice purely as a logical and formal by a jury which feels that he does not deserve the cleath
principle and not as an ultimate value to which society must penalty. In civil matters, however, the question is a more
be directed, this is not because equality is in itself incapable difficult one, because if hardships were regarded as a ground
of being erected into a higher value of this kind. On the for avoiding one's legal obligations this might inti.oduce
contrary, as we shall see when we discuss the relation of free- great uncertainty into the law. This is no doubt why the
dom to law, equality takes an important place in the scale of system of equity, contrasted in England with the common
values which operates at the present day. But in this sense it law, has tended to grow increasingly rigid and more like a
is not the merely logical principle of treating like as like supplementary system of law than a means of tempering the
within a framework ofrules, but rather consists in the deliber- strict dictates ofjustice according to law. Orr the other hand,
ate value-judgment that certain differences between human however, there has been a considerable growth of discre-
beings are not appropriate grounds for discrimination. This tionary powers conferred on courts, tribunals, and admini-
applies especially to such differences as sex, race, colour, and strators by modern legislation, and these constitute a kind
religion. Adherence to a value-judgment of this kind is of equitable principle built into the rule of law irsef. fn
clearly one of conscious choice and moral conviction which English law the concept of'reasonableness'is often invoked
cannot be deduced from the formal criterion of equality for this purpose, as for instance where a court is empowered
incorporated in the idea ofjustice. to order the eviction ofa tenant ofa rent-controlled clwelling-
(z) Equity: There is yet a further difficulty in looking to house only ifsatisfi.ed that it is 'reasonable , to make the order.
formal justice as a means ofadjudicating fairly between man
and man. For, as Aristotle pointed out, the general nature of
rules means that not every individual situation can be for- LEGAL JUSTICE
seen or provided for adequately, and therefore formal justice Justice is a much wider conception than law and may apply
may press very hard in individual cases. This is why in all wherever there is a code of rules, legal or nonJcgal.-Foi
legal systems a need has been felt to correct the rigour of the instance a private club or a school may govern itsellty rules
law. This corrective is generally introduced by conferring a administered in accordance with formal justice, wheiher or
certain discretionary power to interpret the laws in the not strictly legal rules apply. We have so far considered
spirit ofequity rather than insisting on their strict letter, and justice in this wider context. It is norv necessary to carrv the
to limit or control their opcration in cases of hardship. This inquiry into the specific province of law and for this purpose
last point is well brought out in the saying that 'justice we have to consider both thc relation of law tojustice ou cl *hrt
should be administered with mercy', which means that legal specific meaning we can give to the idea of legal justice or
justice should be tempered to the individual case in a spirit of justice according to law.
equity. This principle allows a fairly free and ready appli- ff we compare the formal attributes ofjustice with the
 126 The ldea oJ Law
Law and Justice n7
features usually regarded as characteristic oflaw we can see cation. Some jurists indeecl,have sought to argue
that nothing
that these, broadly speaking, correspond. Indeed so close is it
can qualify as a law unless po"rr.rr., ifr"
this correspondence that there seems to be good reason for generaljty, but this seems a needleisly arbitrary
,irr*"i"".?
supposing that the very conception offormaljustice has been
largely derived from or modelled upon the conception of law
6* a"nJiiio; Jil;;; ;Il;::"y#il;filj'T111T
terminology in the case of alorr_general enactment
limit.ti
problcm T
of
itself, In an earlier chapter we have already stressed the validly
passed by_a legislature, for it is iarclly
likely that h;;;;
interaction oflaw and morality and pointed out the extent to would wish to refer to it by any other name than
that of a
which morals may be said to be derived from legal rulesl law.a
here again we see the great influence that legal conceptions Coming now to the third feature ofjustice, the need for
exert over ethical modes ofthought in providing a framework
-
the impartial application of the rures, tfie situation
is a littre
within which an ethical concept ofjustice has been able to clrflerent. .t'or here it may be said that impartiality is
develop separate from, but closely related to, the formal generally closely associated with law in the
sense that it is
structure of a legal system. a highly desirable attribute or aim of uny l"gai
To what extent can it be said that a legal system partakes 1:g.T.1l
system, but the practice, save in the most
well-regutatedof
of the three features of formal justice to which we have states, and not invariably in those, is often
very different. ft
refened, nameln the existence ofrules, their generality, and would seem that the question herl is to some extcnt
one of
their impartial application ? In the first place it is plain
9.fl.", T.?t: ro manyluestions in human If ,i G;l
enough that a primary characteristic of a legal system is that systems fall short to some extent of achieving"fui.r.
partiality we cannot regard the universal preservationit-
complete
it shall contain rules for regulating human behaviour and of
for settling disputes. Moreover, these rules will almost impartiality as an essential attribute offr*;tlfi.
O;;;;;
necessarily, though perhaps not invariably, be general in hand, a state or country which is gov"rrr"J irr-th"ory
by r,rles
character, for the whole purpose of law is to classify acts and which are so
situations, and to provide general rules for dealingwith them. -capriciously appliJd that ir is i*porr;Ut. to
predict even in the mosi stiiightforward cases how incri-
ft is conceivable, and indeed has sometimes occurred, that vidual decisions are to go, in view of the likelihood
of cor-
laws have been passed which deal only with one person or
:"ptlo". or of personal lactors influencing decisions, could
with a single situation, as for instance a penal enactment such hardJy be said- to possess alegalsystem at'afi.
On the other
as the old Act of Attainder, providing for the infliction of nano, we would not necessarily refuse to recognize
that a
penalties upon an individual, or an Act of Parliament dealing legal system operates where theiaw i, gerr.*ity ippii.a
exclusively with the administration of a particular estate.s
witir
regularity,but where certain sections, classes, or individuals
Ilowever even seemingly non-general enactments ofthis kind can usually rely on favourable treatment toth liom
the
are often general in their implications: for instance the rights courts and other legal authorities; we would probably
prefer
of third parties in relation to any property falling within the t9 s?y that there is a legal system but it op"r.tes
very defec-
scope of the statutes in the above fivo examples would be tively in certain cases.
affected by them. The fact remains that even if very special as it may, the fact remains that a certain measure
examples can be thought of, which amount to laws lacking ol^Be-this
coherence and regularity is a vital feature of any
legal
general application, these remain so exceptional that they do system but no exact standard can be laid down by'whlch
not cast serious doubt on the broad proposition that legal this measur,e is to be judged. Moreover the general state
of
systems are composed of ruleswhich are general in their appli- soclal development of the particular socieiy in question

l''l
r2B The ldea of Law Law and Justice r29
would have to be taken into account and compared with the
state of development in other societies of the same epoch. We
would not judge the operation of the law in a feudal country LEGAL INJUSTICE
in a period of general feudalism in the same way as we would So much then for the correspondence between the two con-
the conditions in a backward country in the contemporary ceptions oflaw and ofjustice. In view ofthe closeness ofthe
world. formal attributes of these two concepts the question arises in
In addition to the features already considered, which are what sense we can condemn the lar,v itself of injustice,
common both to law and justice, there is also the equitable It would seem that there are three distinct types of case in
element to which reference has been made. Here again the which injustice in relation to law may arise and which need
importance if not the actual derivation of the idea of equity to be distinguished. First, the law is, as we have seen, so
stems primarily from the operation of this idea within the closely linked in the general opinion with the idea ofjustice,
framework of the law. Aristotle discusses equity mainly as a that it may itselfbe, and frequently is, treated as synonymous
means of mitigating the apparent rigours of the law, and in with justice; it is for this reason that we often refer to , Courts
the later Roman law many examples could be given of the ofJustice ' as a synonym for ' Courts oflaw', even though the
way the spirit of equity was invoked to enable the law to be latter may in practice often fall far short of the ideal standards
developed in a juster and more humane manner than was set by the former. Legal injustice then may be done when a
permissible within its strict letter. English law in turn de- case is decided in a sense contrary to what the law itself lays
veloped a separate system of equity administered. by u down. Of course whether what tire law lays down coincides
separate court in order to turn aside some of the harshnesses with what is regarded as substantial justice is quite another
of strict law and this institution has spread to all common- matter. For instance, the law may permit a person to inflict
law countries, including the United States, and still survives severe loss or injury on another without that other having
in a modified form in English law today. Here again we see any right of redress. A decision to this effect is legally just
the close correspondence between formal justice and law in though it may be regarded (even by the court itself) as
that both have felt the need for softening their respective morally most unjust. On the other hand, if the court were,
rigours to meet individual cases of hardship. And just as, in contrary to established law, to decide in favour ofthe plaintiff
the case of justice, we could not say there was no justice notwithstanding, this might be morally just but it would still
because appeals to equity were ignored - let us recall the a'mount to legal injustice. These examples naturally assume
distinction, already mentioned, between'justice' and that in the case in question the law is clear, but has been
'mercy'- so we cannot deny the existence of law when it misapplied. In practice, horvever, the complexities of most
admits of no softening of its asperities on equitable grounds. legal systems are such that they are full of uncertainties as to
Law might lose its character of law by an excess of caprice what is their correct interpretation in a great many situations
in its administration but it could hardly cease to be law and a decision ofa lower court rnay be corrected by a higher
because of its rigid application according to its tenor. The court on appeal, Where a particular lower court has simply
law of the Medes and Persians - 'which altereth not' - might taken what has proved to be a mistaken view of the law the
have been harsh but none the less it was still law. word 'injustice' is not very appropriate and is a good deal
less likely to be used. The close association of justice with
morality would generally require some deliberate 'wrench-
ing' of the law to arouse a condemnation of injustice, rather
T-B
I3o The ldea of Law Law andJustice r3r
than a rnere bonafide misinterpretation of the law by a court applied to test the substantial justice of the legal rule. The
doing its best to discharge its duty. There is also the further philosopher-Hobbes propounded the rather stirtling thesis
complication that the decision of the higher court may not tJrat the only standard of justice is the law itseif, io that
in the eyes ofthe legal profession seem to be soundly based as whatever rule the law lays down must ipso facto be just.6
a matter oflaw and, moreover, under some systems, even the This argument appears to be totally .rrrt..ribl. for -there
highest court may subsequently be entitled to overrule its seems no conceivable reason why we should not be entitled
previous decisions as being wrong in law. to evaluate the substantial justice of a legal rule by some
The second form of legal injustice is perpetrated when the external criterion, though this does not necissarily imply, as
-one
law is not duly administered in that spirit of impartiality we have already seen, that such a criterion of
-t,si b"
which it requires. I$ for example, a court finds facts in abs-olute, universal, and unchanging validity. Hobbes is
favour of a powerful litigant, not because it is genuinely really seeking to treat all larvs asjust by definition, but this is
persuaded of their truth but because it wishes to show favour 1
purely arbitrary piece of terminological legislation which
to the powerful either out offear ofthe consequences ofan has been-rightly rejected by most phiiosophers and lawyers
adverse decision or on account of bribery or hope of future and by the verdict of common sense. It ii true that a cele-
benefit or advancement, then a legal injustice has been brated English Chief Justice, Sir Edward Coke, once
committed. Such an injustice will also necessarily be unjust attemp_ted to equate the law with moral principle and
from the point of view of abstract justice as well as law, for natural law, when he described the common law as . the
whatever the merits of the case and whether the relevant perfection of reason'6. T]ris however was no more than a
laws are or are not in accordance with substantial justice, a rhetorical flourish which in any event ,rvas peculiarly inapt,
lack of impartiality still remains a fundamental breach of in view of the barbarous state of the common law in the
the conception offormaljustice. The point may be reinforced seventeenth century.
by considering the case of a court showing similar partiality An unjust law, then, in this sense, is a perfectly intelligible
to a humble litigant because it feels that he desewes particular conception if we understand it as meaning simply Jlaw
sympathy. Take the type of case, which not infrequently whicfr, valid in itself conflicrs with the scale of values by
occurs in our modern society, where a person ofsmall means whi-ch we choose to judge it. Moreover this idea may bL
has suffered some physical injuries in a road accident or at perfectly properly applied not only to individual laws,
his place of work and brings an action in which the real which offend our sense of human values, but also to a whole
defendant is an insurance company or some wealthy company legal system which may be condemned, for example, as
which was his employer. A judge or jury who decided the being directed solely to furthering the interests ofa paitic-
facts in favour of the plaintiffcontrary to the fair assessment ular group, or as outrageously repressive towards other
of the evidence out of genuine syrnpathy for the hardship to groups, whether constituting a majority or a minority of the
the plaintiff and because the financial loss would fall much population as a whole.
less heavily on the defendant would undoubtedly be guilty Is it a further ground of distinction between law and
of committing an injustice, both legal and moral, howover justice, that whereas it makes perfect sense to speak of un-
just law, it is really meaningless or a contradictitn in terms
well-meaning such a decision mightbe.
The third kind of injustice will arise when the law, though to refer to'unjust justice'? On the face of it this sounds a
perfectly impartially administered according to its tenor is senseless and contradictory expressionl nor is it a phrase
itself unjust if judged by whatever value system may be that is commonly encountered except perhaps when used
 rg2 The ldea of Law Law and Justice r33
with an ironical implication. Ffere again, however, it is a rule of a particular state excluding members of particular
necessary to contrast the formal and the substantial aspect races or religions from participation in elections might be
ofjustice. Ifjustice is treated as embodying the purely formal applied perfectly justiy in relation to those subject to this
rule of equality previously discussed then justice which rule, but the substantial justice of the rule itself still remains
exemplifies this principle cannot be unjust by definition. For entirely open to question. It will be apparent therefore that
justice limited to this meaning is a formal and logical prin- we have here arrived at the same fundamental distinction
ciple and if regularly applied cannot contradict itself. encor.rntered in considering the meaning of an unjust law,
Equity, on the other hand, as we have seen, operates not namely that a rule may be perfectly justly administered
as the expression ofa logical rule but by shaping itselfto the according to its tenor and yet may itself embody the most
individual case - even, it may be said, erratically. For this profound injustice. And when wc speak of injustice in this
reason in the early days of English equity, it was criticized sense we refer to that scale of values rvhich, on whatever
as 'varying with the length of the Chancellor's foot.' fn its basis, we choose to accept as providing the criterion by
formlessness it therefore resembles charity, which is spon- which we judge all human rules of conduct, whether legal
taneous and uncalculating, aiming to relieve suffering with- or non-legal, as bcing good or bad, just or unjust. Indeed,
out regard to any rules whatever. Equity therefore in this in this broader connotation of r,vhat we have called ,sub-
sense is the antithesis of formal justice, or at any rate a sup- stantial justice' there is little if any important distinction
plement to it, rather than part of the concept of justice. which can be drawn between 'the good, and .the just',
[fowever, in a broader sense we may regard equity itself though goodness remains a far wider category than jirstice
as a kind ofjustice and formal justice may then be intelligibly even in this sense.
treated as unjust if it complies with the rigid logic of its own
requirements but fails to temper its conclusion in a spirit of
equity with the particular circumstances of the case. Thus LAW Ar{D tsuBSTANrtal' ;usrtce
a decision ofan association or club to expel a member for his It is not enough then for a system of law to comply with the
conduct may be perfectly just within the scope of its rules formal attributes of justice even though tempered with a
providing for expulsion but may still be 'r-rnjust' because it spirit of equity. For in addition law needs to possess a just
ignores the special circumstances which palliate the offence. content, and this can only mean that its actual rules must
It will be seen therefore that this type of case corresponds themselves by their provisions airn at and endeavour to con-
to that in which the law is administered in accordance with form to some criteria of rightness which repose on values
the letter rather than in a spirit of equity, or where legal exterior to justice itself in the sense that no merely formal
justice is not tempered with mercy, idea ofjustice can dictate to us the basis upon which we are
Apart from this case, formal justice, like law itself, may to prefer one set ofvalues to another. The assertion therefore
fail to result in substantial or concrete justice. There is here that law aims at justice cannot provide a substitute for a
an exact analogy between abstract justice and law. A father scale of values, for r,r'ithout these the most appalling forms
of
may, for instance, Iay down a rule that he will disinherit any substar-rtial injustice may be perpetrated in the name of
child of his who mamies a Roman Catholic.? The application justice itself. We will therefore conclude this chapter by
of this rule with regularity and without regard to individual saying a little in general terms about the way in which a
favour would comply with formaljustice, but tells us nothing legal system may endeavour to give effect to the particular
as to the substantial justice of the rule itseif. In the same way scale ofvalues which obtain in a given society. This will lead,
rS4 The Idea of Law Law and Justice rg5
in the next chapter, to some consideration of the scale of is not always recognized or adopted. On the other hand, the
values dominant in our present Western society and the di- need may be felt to give the judiciary and other officers of
verse ways in which these values function as operative factors the law, as well as the legislative organ itself, more specific
in the legal systems of Western democratic countries and of guidance as to the values they should adhere to in arriving
other countries which reflect a similar outlook. at decisions or expositions of the law or in framing new
There are two principal ways in which a legal system may legislation. fn every legal system it may be said that there is,
aspire to attain not merely formal but also substantialjustice at least implicitly, built into it some kind of value system
so far as this is reflected in the value system operative in the which the law reflects. In a system such as the common law
particular community. Of these two, the first is more limit- the principles expressing the inherent values of English
ed, but perhaps in some ways more pervasive in the long society are not contained in a specific legal document but are
run. This is by imparting a certain flexibility in the rules to be distilled out of a long historical tradition manifested
applied by the courts or other organs of legal administration in certain institutions, constitutional principles and conven-
so as to confer on the judges and other legal officials the tions, and decisions of the courts, which have been treated
possibility of developing the law and adapting it to the needs as embodying in a special degree the spirit or values of the
of the society in which it operates. Naturally there is no English way of life. Educated in this tradition, those whose
guarantee that this flexibility rvill be used in this way. A function it is to develop and apply the law can generally be
narrow-minded and rigid legal profession may fail to come assumed to be cognizant of the spirit of the community ex-
to terms with the values of the society in which it lives, pressed in these various fbrms. In this way the built-in values
especially where that society is in a transitional state with ofthe system are generally adhered to and developed. Ifthis,
substantial currents ofsocial and economic change gradually unhappily, is not always the case, then the various organs of
transforming a more traditional community.s It may be public opinion may have to be, and frequently are, used to
said that to some extent a society gets the legal prolbssion make the public awate of any threats to those values which
and the judiciary that it deserves, and that social pressures may arise within the framework of the law.
will eventually be effective in these spheres as in others, Such an approach may serye for a country with a long
though resistance to change in some socie ties may be stronger tradition of ordered government and with a fairly homo-
in the realm of legal traditionalism than in most other fields. geneous population which is broadly in accord as to the
It is also partly a question of education, not merely legal essential values which embody the spirit of the community.
education in the narrow sense, though this is not with- Less integrated or more recently established states may re-
out an important influence, but also the extent to which quire something more explicit than the rather haphazard
the general educational system of the country succeeds in repertory of law and tradition which has served England
propagating a scale ofvalues and provides both the back- reasonably well up till now. Here the United States, with
ground and the impetus for an informed and alert public its written Constitution established in t776 and its Bill of
opinion. Rights appended almost immediately thereto, set a pattern
This method then - allorving flexibility in the rules - does which has been repeatedly followed in recent history,
not so much provide a set of values for the law to apply but namely, to incorporate by positive enactment in the con-
rather gives the judiciary scope within the established rules stitution certain value-judgments or principles. These
to have regard to the dominantvalues accepted in the society principles were regarded as representing, in the historical
in question. There is room for a positive approach even if this context ofthe eighteenth century, essential natural rights, and
136 The ldea of Law Law and Justice tg7
in our own day, when the natural-law idea is more contro- very general terms, subject either to very general specifically
versial, essential human rights. The value of this approach stated limitations or to implied lirnitations of an indefinite
is not only that it makes explicit some of the underlying kind, leaves ample room for conflicting interpretations, even
assumptions of the legal system) but also that it may render at thejudicial level.
these into obligatory and overriding legal norms capable of A written constitution embodying a bill of rights which
being enforced by legal process. Thus in the United States, expresses in general terms some of the main assumptions of
subsequent legislation which encroaches upon such funda- the scale of vaiues to which it is to give eflect rnay go sorne
mental provisions of the Constitution is declared tobe invalid. way towards closing the gap we have discussed between
Ilowever, in some modern written constitutions broad state- formal and concrete justice. But that this solution is merely
ments regarding human or natural rights are inserted with- a beginning rather than a final solution of'this problem wiil
out conferring upon them specific legal force or empowering be manifest in the discussion, in the ensuing chapter, of the
the courts to give effect to them.0 fn constitutions of this kind relation between law and freedom.l0
the declarations of human rights really amount to little more
than exhortations and slogans, and accordingly in many new
constitutions established since the Second World War, as for
instance in India and Western Germany, the American form
of a compulsory Bill of Rights has been adopted.
When some of the fundamental values of a legal system
are embodied in the constitution it may be thought that
these will make unnecessary anyfurthersearch for underlying
values either on the lines of natural law or on some other
acceptable ethical basis. For where the courts are given
power to apply these provisions of the constitution it may
be said that they stand as agreed statements of natural-law
positions or supersede any that might otherwise be arrived
at on general reasoning alone. To a large extent this is
certainly the case, for the courts will henceforth consider
that their function is to give effect to the stated principles of
the constitution rather than to embark on theoretical or
personal inquiry as to the fundamental values of the con-
stitution, whether inferred from natural law or some other
basis. This matter is, however, less simple than might appear,
not only because natural-law ideas are still widely current
even at the present day, but also because the precise meaning
and implication of general value principles, such as freedom
of speech, may be extremely controversial and give scope for
many varying attitudes. Moreover, the Ibct that fundamental
rights of this kind can only be stated in the constitution in