Legalist Perspective

Justice as creation of the sovereign

Thomas Hobbes, Jeremy Bentham and John Austin supported the legal concept of sovereignty. They argued for the supremacy of law emanating from the sovereign and held that the law was the sole source of rights, liberties and justice. As such, law becomes an instrument of justice. Hobbes’s social contract set up a sovereign who must treat all the individuals equally in matters of rights. The idea of contract gives the idea of equal consent and hence sovereign is required to give equal treatment. Hobbes defines ‘justice as equality in treatment and equality in rights.’¹⁸ In such rights and considerations as property, levying taxes, contracting with one another, Hobbes requires the sovereign to treat each individual equally. For Hobbes, Leviathan or the sovereign is, what Wayper calls ‘creator of right and justice. His edicts, or laws, therefore, can never be unjust or immoral.’¹⁹

Bentham argued that law only can become basis for utilitarian principle and morality cannot become a basis of either of utility or by implication of justice. Austin, a famous analytical jurist of 19^th century, also advocated law as source of justice. Society is not supposed to look for justice beyond the juridical order that is the state. State under the legal sovereign becomes the source of positive justice because it is based on positive law. Positive justice does not recognize the argument of moral content of justice. Bentham did not accept morals as the basis of justice because enforcement may not ‘increase net balance of happiness or decrease net balance of pain.’ For example, drunkenness if punished may not contribute to this. Bentham also criticized conception of natural law as a mere phrase and did not accept it as the basis of either rights or justice. Positive conception of justice is based on law and not on either moral content or natural law.

Harold Joseph Laski is critical of Austin’s legalist concept. He suggests that Austin by insisting too much on juridical elements excluded ethical and sociological consideration. Laski says ‘Law was completely separated from justice on the ground that … it introduces non-juristic postulates.’²⁰ Laski finds law ‘divorced from justice’ in the perspective of positive justice.

Concept of legal justice, however, plays a significant role in the liberal order. Justice here is primarily concerned with how penalties are to be decided for violation of the existing laws, how compensations to be allocated for damages and injury in interpersonal or economic relations, etc. Justice is to enforce law to penalize the wrong doer (legal wrongs) or compensate the injured. Secondly, justice also requires that the procedure followed should be impartial. Impartiality in the application of law ensures that result of application of law is just. Equality before the law and equal treatment by the law is the basis of justice. This is the statement of formal (legal) justice. However, we may recall what we said with respect to the principle of equality that like legal equality, legal justice would require a socio-economic basis for its realization.