Legal Justice

In legal dimension, justice relates to law of the state and positive law becomes the basis of justice. Social contractualist Thomas Hobbes, Utilitarian Jeremy Bentham and Analytical jurist John Austin have supported law issued by the sovereign as the sole source of justice. This implies that whatever the sovereign formulates or enacts, or whatever is positive law, carries legal sanctity and enforceability by the power of the state. Scope of justice covers how sovereign formulates law, how it is executed and whether supremacy of law is established in administering justice. In other words, it relates to how law is made, whether rule of law prevails, whether it is applied fairly to all the individuals.

Generally, legislature and courts are identified as the organs and agencies that relate to legal justice. In modern democracies, legislature is considered as the supreme law-making body. Laws made by legislatures cover a wide range of social, economic, political and religious and cultural life of the people. In many countries, legislature interferes to bring in a social reform process and enacts laws that deal with injustice prevalent in society. For example, abolition of slavery in America in 1863, abolition of untouchability in India by Constitutional provision in 1949 and abolition of apartheid in South Africa in 1990s, are examples of social injustice being legally abolished. In these cases, supremacy of law is applied to eradicate socially and collectively practiced injustices.

On the other hand, there are laws that define the scope of relationships between: (i) individuals, (ii) individuals and the authority of the state, (iii) individuals and social and cultural groups, (iv) individual and families, etc. Laws pertaining to these include various aspects such as civil (rights and duties relating to tort or wrongful acts in civil law for which damage can be sought, marriage, divorce, inheritance, individual freedom like speech, expression, belief, etc.), criminal (rights and duties relating to torture, murder, physical or corporeal violence, etc.), economic (rights and duties relating to employment, wages, termination, contract, etc.), political (rights and duties relating to suffrage, political office, political associations and political activity such as political parties), etc. To deal with these relationships and regulate their dynamics, codified laws and rules are established by each of the modern state in the form of Constitutional provisions, penal codes, civil and criminal procedure codes, etc. In India, for example, we have a charter of Fundamental Rights; constitutional rights such as right to property, vote, public office, etc.; Indian Penal Codes (IPC); Criminal Procedure Codes (CrPC); various Acts of Parliament such as Protection of Civil Rights Act, Hindu Marriage Act, etc.; Personal Laws relevant to certain religious communities such as Muslims, Christian and ethnic groups such as Nagas, Khasis, etc.

The above description points to a two-way application of laws or legal system: (i) legal instrument to define content of law such as eradication of social injustice, or bringing gender equality, or removing religious practices which are against human rights, and (ii) legal instruments to administer the judicial system by applying CrPC and IPC and other relevant laws. The import of the two-way application of law is to determine whether: (i) each should get justice as per what the law prescribes, or (ii) should law itself be tested for its reasonableness. This way of understanding the relationship between law and justice gives a wider scope to the conception of legal justice. As a result, legal justice has been interpreted in two ways. Firstly, it is described as justice according to law; and secondly, law must reflect reasonableness and should subscribe to law according to justice. While, Hobbes, Bentham, Austin, Alf Ross (On Law and Justice, 1958) and Morris Ginsberg, a sociologist (Justice in Society, 1965) support the view of justice according to law, Ernest Barker supports the view that law should be tested for its reasonableness.

Justice according to law view means that the judicial system should be fair and impartial in administering the extant laws. And how this can be done? Supporters would argue that certainly by providing equality before law and equal protection of the law to all. However, the equality and equal protection clause does not preclude reasonable distinction to be made in the interest of fair and impartial administration of justice. In this view, the content of law is not in question and it is not debated whether law per se is right or wrong. One may argue that generally law itself is a culmination of social and collective demands and as such it contains general aspirations, acceptance or approval of the society. If it is so, then for justice to be meaningfully attained, fair and impartial administration of that law is the only requirement. Law should not and could not be tested for reasonableness by applying certain external criteria. Both Alf Ross and Morris Ginsberg are of the view that justice consists in efficient administration of law. This means justice is being treated as a formal principle and is supposed to have been rendered, when: (i) there is a legal order or established judicial system to administer laws and rules, (ii) equality before the law and equal protection of law is enshrined in the judicial process, and (iii) administration of laws is impartial and fair.

This presumes that justice is more a function of how laws are administered than what their contents are. This view also presumes that: (i) the judicial system is equally accessible to all the people irrespective of their political and economic empowerment or deprivation, and (ii) the judicial system is independent from social, cultural, religious and class biases and impartial in application of law. However, this may not be the case always. The presumption of equal accessibility of all to the judicial system is flawed. Empirically, one can relate the monetary consideration required for pursuing a case in court with per capita income of an average Indian. It is apparent that cost of pursuing a case in court is very high and that may be due to corruption in certain countries, e.g., our own India, being an integral part of general morality. However, courts are not oblivious of the problem of inaccessibility and, in India, legal aid is provided for those who do not have economic means to access court of law. We can relate the concept of legal aid to parallel provisions provided to others who are impaired. Legal aid is for those who are legally impaired. Secondly, in societies where economic inequality, social divisions and religious differences are present, doubts about impartial and fair administration of justice will always be present in some section or the other. It has been generally reported that the courts have shown both conservative and progressive tendencies in their pronouncements. For example, during the late 1960s and early 1970s in India, nationalization of various sectors of the economy was being done. This has implication for the then fundamental right to property (now right to property has been placed outside the Fundamental Rights and appears under Article 300A as Constitutional Rights). While nationalization was considered as a ‘socialist’ move, protection of right to property was a related to ‘liberal’ position. It could happen that judiciary might have struck down nationalization laws citing the violation of private property provision or upheld them. In either case, judiciary was to take a position and the issue was not restricted to mere administration of justice.

Doubts have been raised on the social, political, economic and religious backgrounds of those who pronounce judgements and to that extent on the fairness and impartiality of administration of law. It is reported that cases involving religious violence and riots which are sub judice in courts in one state have been transferred to another (e.g. Gujarat to Maharashtra) fearing partiality and political influence in administration of justice. Though it should not be construed that this is a general rule and courts are partial and unfair. In fact, in the case of Indian democracy, sufficient independence for the judiciary is built in and further buttressed by judicial activism, which in many cases has restored sanity in our political and administrative orders.

Different from what justice according to law view upholds, there is another view which stresses that law itself should pass the test of reasonableness. The test of reasonableness implies certain criteria, which in turn invokes moral and social utility dimensions. If law includes moral or social content as reflection of social and other dimensions of justice, it appears to be reasonable. For example, in India, the practice of untouchability, and certain other practices such as that of child labour, sati, child marriage, etc. have been abolished. If we analyse the content of law, it appears that these legislations are a reflection of corrective means of distortion on historical or social or human basis. If a law does not abolish child labour despite it being practised or child marriage which violates the basic right of women to decide when to marry and does approve the practice of Sati despite it being against the social and moral prestige of women’s life, that law cannot be reasonable.

Barker in his Principles of Social and Political Theory has talked about ‘law according to justice’.⁴⁵ He makes a distinction between positive and natural law. By positive law, it is meant that there are laws, which are defined and prescribed by each community or the state as having legal sanction or validity. On the other hand, natural law means universal law, implying what is right in itself irrespective of times. Natural law provides test of value of law or how valuable it is for the community while positive law provides test of validity. Barker suggests that law derives its validity from authority of the state and value from justice. Thus, a law must have legal backing but should also have the backing of justice. Barker maintains that if a law has validity one is legally obliged to obey it, but if a law has value and inherent quality of justice, one is bound to obey it morally and by inward force. A law, which is both valid and valuable, will obtain easy and forceful application.

Equality before the law and equal protection as a formal principle is acceptable but its application as it is may distort the cause of justice. For example, inaccessibility, treating equals and unequals on same footing, in fact leads to injustice than justice. Further, a law oblivious of principle of justice, morality or larger social utility may not be able to sustain for long. Many laws that the colonial administration forced in India before independence were considered as having only force behind it and not justice. It is generally accepted that law must have justice as its objective but at the same time, it is also apparent that law merely having a backing of force cannot sustain. On the one hand, human dignity, human rights, and human values should inform law and its administration, on the other hand, even within the ambit of justice according to law, concept of natural justice is applied to strengthen fairness and impartiality criteria. It seems concept of justice according to law advocated by Ross and others provides partial understanding of justice in legal sense but Barker presents a balanced view and provides a holistic idea of legal justice.

The state and all its organs seek to enforce legal justice. Neo-Marxian thinkers such as Gramsci and Althusser have shown that in a capitalist system, legal system is part of the superstructure. It provides a basis for hegemony or domination in class terms and legal justice could be only a partial form of justice. Moreover, it is a justice applicable for maintenance of the system.