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On Law and Justice$

Alf Ross and Jakob v. H. Holtermann

Print publication date: 2019

Print ISBN-13: 9780198716105

Published to Oxford Scholarship Online: January 2020

DOI: 10.1093/oso/9780198716105.001.0001

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[357]The Idea of Justice

[357]The Idea of Justice

Chapter:
(p.347) Chapter XII [357]The Idea of Justice
Source:
On Law and Justice
Author(s):

Alf Ross

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198716105.003.0012

Abstract and Keywords

This chapter analyses the idea of justice in light of its central place in natural law. As a specific principle of law, justice is concerned with the outer limits and harmonization of conflicting desires, claims, and interests in the social coexistence of a plurality of individuals. Taking the view that all legal problems are problems of distribution, the postulate of justice amounts to a demand for equality in the distribution or allotment of advantages or burdens. Through examples of competing formulations of the idea of justice, it is demonstrated that such formulations comprise two elements: the formal demand for equality as such; and a substantive criterion in order to determine the class to which the norm of equality is to be applied. The formal ideal of equality as such refers only to the correct application of a general rule, whereas the presupposed substantive criterion is what gives content and force to the actually efficacious formula for justice. On this background, it is argued that once the substantive criterion has been determined, it is meaningful to speak of (formal) justice. However, it is meaningless to speak of (substantive) justice in the sense of claiming that certain substantive criteria are just as opposed to others. Whereas justice, as a norm for the legislator (as a yardstick for the ‘correctness’ of the law), is merely a chimera, justice as a norm for the judge is, on the contrary, a living and palpable reality.

Keywords:   idea of justice, formal justice, substantive justice, equality, legal philosophy, self-evidence, positive law

§ 67. Justice and Natural Law

In the philosophy of natural law, the doctrine of the idea of justice has always played a prominent role. Throughout its history, natural law has claimed that in our inmost conscience, there is a simple and directly evident idea, the idea of justice—the highest principle of law, as opposed to the highest principle of morality. Justice is the specific idea of law: it is reflected—more or less clearly or distortedly—in all positive laws, and is the internal measure of their correctness.

At the same time, there exists indeed another usage (especially in the realm of older philosophy), according to which justice denotes the highest, all-embracing virtue without distinguishing between law and morality.1 In this usage, justice is simply an expression of love of the good, or of God. It is in this sense we must understand the Sermon on the Mount when we are told: ‘Blessed are they which do hunger and thirst after righteousness:* for they shall be filled.’

As a specific principle of law, justice is concerned with the outer limits and harmonization of conflicting desires, claims, and interests in the social coexistence of a plurality of individuals. Taking the view that all legal problems are problems of distribution, the postulate of justice amounts to a demand for equality in the distribution or allotment of advantages or burdens. Justice is equality. As early as the fourth century BC, this idea was formulated by the philosophy of the Pythagoreans, according to whom justice is symbolized [358]by the square number in which like is united with like, and since then, the idea has been repeatedly adopted and varied in countless formulations.

The benefits or burdens whose distribution is discussed here can vary greatly in kind. Examples include: wages, taxes, our lot in life, property, punishment, individual and social services, or rights and duties as apportioned by the legal (p.348) order in general. In all these instances the following applies: if such a distribution takes place, it shall be an equal distribution.

Our experience seems to confirm that here we have to do with a simple and evident idea endowed with an immense motivating force. An instinctive understanding of the demands of justice seems to exist. Even small children appeal to justice if one child gets a thicker apple slice than the other. It has even been claimed that animals possess an incipient sense of justice.2 The power of justice is enormous. It strengthens and excites those who fight for a just cause. All wars have been fought in the name of justice by all parties, and the same applies to the political class struggle. On the other hand, perhaps the very fact of the enormous applicability of the principle of justice is apt to suggest suspicions of there being something wrong with an idea which can be invoked in support of any cause. Therefore, let us take a closer look at the demand for equality and see what it actually amounts to.

(p.349) § 68. Analysis of the Idea of Justice

The first possibility that comes to mind is that the demand for equality be understood as an absolute demand, that is, in the sense that everyone, irrespective of individual circumstances, should be precisely in the same position as everyone else (To each the same). However, it stands to reason that what is usually1 meant by justice cannot be such an absolute uniformity. Such a banning of all difference-making would mean that each and every one of us should occupy the same legal position—irrespective of age, irrespective of marital status, irrespective of whether or not one had committed murder, irrespective of whether or not one had entered into a contract, etc., etc. A thing like that could never have been intended, of course.

[359]It cannot be considered an injustice—nay, on the contrary, it must be a demand of justice—that a distinction be made to the effect that benefits and burdens, rights and duties are distributed in view of conditioning circumstances. The legal position of a married couple must be different from that of an unmarried couple; the legal position of grown-ups must be different from that of minors; the legal position of criminals must be different from that of law-abiding persons, because such distinctions are relevant. The demand for equality solely comprises the requirement that no one, neither arbitrarily nor without sufficient reason, shall be subjected to a treatment that differs from the treatment accorded to another person.

Therefore, the demand for equality must be understood in a relative sense, that is, as a demand that like shall be treated alike. This means that as a precondition for applying the norm of equality, and independent of this norm, there must be criteria that stipulate what must be considered as equal and not equal, respectively. This can also be expressed as follows. The demand for equality, contained in the idea of justice, is not directed at each and every one in an absolute way but, rather, at all members of a certain class, established through certain relevant criteria (for example, the class of married couples, of promisors, of murderers, etc.). Thus, before the norm of equality can be applied, there must be criteria that determine whether or not two persons under given circumstances belong to the same class.

Then we can see that the different formulations of justice, set forth by various quarters or in various contexts, comprise—alongside the idea of equality—a (p.350) reference to a certain yardstick of evaluation which is presumed to be used for defining the category to the members of which equality shall be applied. Here are a few examples.2

(a) To each according to his merit

This formulation is often used when there is talk about justice in this life, or in life after death. Consequently, the relevant criterion is the individual’s moral merits or worth, and the idea is that justice demands proportionality between worth and destiny—in this world or the next.

(b) To each according to his contribution

This formulation is often set forth in political theory—by Marxist socialism, for example, to cover the period of transition preceding the full realization of communism—as the principle of the just wage, or the just share, in the production results when these are distributed. Accordingly, the presupposed assessment criterion lies in the individual’s contribution to the social product. Thus, the relation of exchange is conceived as an exchange of contributions between individual and society. However, this formulation is also used by theoreticians who conceive of work and wages on an individualist basis, as an exchange of services between private persons (the Danish theorists of the Rechtsstaat, for example).

[360]In its purest form, this principle is applied when wages are defined as piece-rate pay. Payment by the hour is a practical adaptation, based on the average amount of work done per hour.

This formula for justice is invoked when nowadays the claim is raised, frequently by women, of equal pay to men and women for equal work. This expresses precisely the idea that work performance is the relevant criterion determining the class that claims equal treatment. All individuals belonging to this class, women as well as men, thus have a claim to receive equal pay.

(c) To each according to his needs

This is the formula for justice put forth by the communist theory for the fully socialized society. In this society, everyone shall contribute according to his ability and receive according to his needs. The relevant criterion determining the class that demands equal shares is, then, not contribution but need. Those who are ill or weak, or have special needs based on other grounds, shall receive (p.351) what they need, regardless of the fact that, precisely on these grounds, they will probably contribute less or nothing.

While in modern society, socialist and capitalist alike, the pay as such is chiefly based on the principle of equal pay for equal work, the principle of need is increasingly applied to a number of other social services—in short, to social welfare. The idea behind it is that the unemployed, the sick, the disabled, those who are less gifted by nature, or the family breadwinners have a claim that their needs, resulting from their special position, be taken into account. To a certain extent, the principle of need also influences the pay system proper—for example, through the rules on minimum wages, through wage differentiation between women and men, through family allowances, and the like. Presumably also the civil servants’ age additions could be regarded as chiefly based on considerations of need.

(d) From each according to his ability

With respect to the distribution of burdens, this principle of justice is the counterpart of the principle of need with respect to the distribution of benefits. It is typically applied in the assessment of income tax, namely, through the rules on tax-free minimum incomes, progressive tax tables, tax deductions for parents with children, etc.

(e) To each according to rank and station

An aristocratic principle of justice of this kind has frequently been invoked in the defence of class distinctions. It must be remembered that the logical correlate of the demand for equality is the demand for unlike treatment of what is unlike according to the presupposed assessment criterion. Here, the criterion is membership in a certain class, determined by birth, [361]race, colour, creed, language, patriotism, ethnic characteristics, social status, etc. On the basis of this principle, it is no more than just that a distinction is made between master and slave, white people and black people, nobleman and peasant, the superior race and the inferior race, colonizer and colonized, orthodox believers and heretics, those who are members of the party and those who are not, etc., etc. Formulations of this kind are typically found in organic or totalitarian theories of state, from Plato until the present day—theories which emphasize the natural inequality of men and the organic or hierarchic construction of society through a plurality of classes, each of them with its own special function within the coherent whole.3

(p.352) I have adduced these examples, not in order to discuss which formulation of the principle of justice is the ‘right’ one; I did so in order to illustrate that whilst the formal demand of equality in itself does not say much, the practical content of the demand of justice largely depends on presuppositions beyond the very principle of equality, namely, presuppositions concerning the considerations which determine the categories to which the norm of equality shall be applied. One does not really say anything by claiming that wages shall be paid equally, that taxes shall be assessed equally. These are empty formulae, unless it has also been established by what criteria equality shall be determined. Do we have equal pay for equal contribution, or equal pay for equal needs—or, perhaps, according to other imaginable criteria? Do we have equal taxes for equal incomes, or equal taxes for equal abilities—or, perhaps, according to other imaginable criteria?

Consequently, since we can state that the formulae for justice comprise two elements—namely, the formal demand for equality as such, and a substantive criterion (or possibly several criteria) in order to determine the class to which the norm of equality applies—this is a good opportunity to specify the role played by each of these two elements.

From what has already been said, it emerges that the formal demand for equality by no means precludes making a difference between persons who are situated in different circumstances. The only requirement is that this difference be motivated by the individuals in question being placed in different classes, according to certain relevant criteria. In the very principle of equality, however, there is nothing that would tell us what criteria are the relevant criteria. This question being left unanswered, the demand for equality is reduced to the demand that all difference-making be tied to general criteria (no matter what criteria). However, this is merely a demand that the concrete treatment shall appear as the application of a general rule. For it is precisely as a general rule that we understand a directive of action, whereby a certain course of action is made contingent upon circumstances described with the aid of concepts—and this means with the aid of certain characteristics or criteria.

[362]Thus, the ideal of equality, as such, refers only to the correct application of a general rule. Through the general concepts or characteristics contained within the rule, a certain class of persons (or situations) is pointed out, with regard to whom a certain kind of treatment shall be resorted to. The equal treatment of all the individuals within this class is, thus, simply the necessary consequence of the rule being applied correctly.

Justice in this formal sense (as being synonymous with the demand for equality as such, or with being rule-governed) can also be expressed as a claim to rationality, in the sense that the treatment given to a person shall be predeterminable by objective criteria, whose meaning has been established through common (p.353) speech habits within a given speech community. Application in the specific case—within certain elastic limits—is thereby rendered independent of the decision-making subject and assumes the character of supra-subjective objectivity. Thereby, justice will stand in contrast to arbitrariness, that is, the decision which, in a non-predeterminable way, arises from the decision-making subject’s spontaneous reaction to the specific situation, determined by his subjective feelings and attitudes. An arbitrary decision is, for example, one determined by the circumstance that the individual in question is my friend, or a person whose appearance repels me; it would be a decision made arbitrarily, because these properties cannot be expressed through objective characteristics, but are subjective in relation to the decision-making subject.

This is exactly what is contained in the first of the two elements of the different formulae for justice, namely, the demand for equality itself. It is clear that this formal demand for regularity, or rationality, cannot be used to justify the claim that a rule of a certain content shall be preferred over another rule. Thus, what gives content and force to the actually efficacious formulae for justice is not the demand for equality as such but, rather, the presupposed substantive criteria for what shall be assumed to constitute the class whose members demand equal treatment.

Let us consider the following formula for justice, for example: to each according to his contribution, or equal pay for equal work. The significance of this formula does not lie in the claim for equality (which merely states that a certain rule shall be followed): on the contrary, it lies in the demand that it is the work, and no other criterion, which shall be used in the rule according to which wages are assessed in specific situations. Similarly, the claim that everyone shall be taxed equally merely says that taxes shall be assessed according to general rules, and this claim is fulfilled irrespective of whether the tax is a poll tax (the same tax for everyone), a certain percentage of one’s income (same income—same tax), a progressive income tax (same ability to pay taxes—same tax), or a tax according to any criterion whatsoever. The demand for just taxation is without any content, unless a certain substantive criterion for tax computation has been postulated alongside the formal idea of equality.

It is extremely important to pay attention to the aforementioned relation [363]between the two elements of the formulae for justice. For the consequence of this relation is that the apparent self-evidence that can attach to the idea of equality, and is felt to endow the formulae for justice with their self-sufficient justification, by no means covers what actually is the essential element in these formulae, namely, the substantive postulates of evaluation. It is commonly held that the idea of justice arises out of the innermost nature of our conscience with a peremptory a priori necessity. On the other hand, one would hardly assert that within the structure of our mind, there is a self-evident postulate that taxes shall (p.354) be proportionate to one’s ability to pay taxes, or that the pay shall be proportionate to one’s work. The value of such rules is evidently not beyond dispute and justification on the basis of their empirical effects and their relation to certain objectives. To present them as demands of justice grounded in an evident idea of equality is a misrepresentation, intended to endow certain interest-governed, practical postulates with the apparent self-evidence that belongs to the idea of equality.

To put it more precisely: the misrepresentation must be described slightly differently. The idea of equality itself does not possess any ‘self-evidence’ or a priori validity. The plain fact of the matter is that it is quite easy to arrive at an agreement that taxation, wage assessment, etc. shall take place according to a general rule, and not arbitrarily—according to mood and whim—on an ad hoc basis. One attempts now to appropriate this basic agreement in favour of an interest-governed postulate, saying that a rule of a certain content (concerning which there is no agreement) shall be applied.

Thus, the idea of justice, in itself, is nothing but the idea of a general rule and its correct application to cases under its aegis.4 Therefore, the words ‘just’ and ‘unjust’ make sense when used to characterize the decision made by a judge. To say that the decision is just means that it has been made in a rule-governed fashion, that is, in conformity with the rule, or the system of rules, that is assumed to be valid. (We return to this issue in § 70.) In a slightly wider sense, these expressions can also be applied to any other course of action judged in the light of given rules. ‘Justice’ denotes the behaviour that is right and proper, and in this sense, any course of action which is in harmony with presupposed legal or moral rules, can be called ‘just’.

However—and this is really interesting in this context—the words ‘just’ and ‘unjust’ are completely empty if used to characterize a legal rule or legal order. For as we have seen, it is impossible to deduce from the formal idea of equality any demand whatsoever with respect to the content of the rule or order. Used in this context, the words are devoid of all descriptive meaning. An individual who claims [364]that a certain rule or order—a certain taxation system, for example—is unjust, does not point at any discernible quality in this system: therefore, he is not justifying his own attitude but merely expressing it emotionally. Individual A says: I am against this rule because it is highly unjust. He ought to say: This rule is highly unjust because I am against it.

Invoking justice is the same thing as banging on the table—viz., an emotional expression which turns one’s claim into an absolute postulate; and that is the end of it. This is not the proper way to achieve mutual understanding. It is (p.355) impossible to have a discussion with somebody who mobilizes justice, because he says nothing one can argue for or against. His words are persuasion, not argumentation (§ 77). There will be no real dialogue unless we try to ask ourselves what factual circumstances and evaluative attitudes are conditioning our emotional attitude, and then argue accordingly.

As far as the debate on the design of the pay system is concerned, some people hold that pay should be fixed only in proportion to the work done and, thus, be the same for women and men. Of course, this rule can be justified and discussed on the basis of considerations referring to the social consequences of different conceivable wage systems. However, putting forward the demand for equal pay for men and women as a just demand for equality is no justification. Invoking justice merely means providing the demand with a pathetic foundation which precludes rational argumentation that might pave the way for a mutual understanding. The ideology of justice leads to implacability and conflict, because, on the one hand, it makes us work ourselves up to the belief that our demand is not merely an expression of a certain interest in conflict with opposing interests, but that it possesses a higher, absolute validity; and on the other, it precludes all rational argumentation and discussion concerning a compromise. The ideology of justice implies a fighting attitude of a biological-emotional kind, to which we work ourselves up in order to defend—implacably and blindly—certain interests.

Since the formal idea of equality, or of justice, is completely empty or neutral in relation to any substantive content, any kind of substantive postulate can be put forward in the name of justice. As I have mentioned earlier, this explains why all wars and social conflicts have been fought in the name of the lofty idea of justice. There is very little chance that the situation will change in the foreseeable future. ‘Justice’ is a weapon far too effective and ideologically convenient to permit us to hope that statesmen, politicians, and agitators, even if they should have grasped the proper state of affairs, would agree to a disarmament on this point. Besides, most of them may have fallen victim to the deception themselves. It is so easy to believe in illusions which excite the emotions by stimulating the function of the adrenal glands.

[365]It is quite another matter, however, that we, who have made it our task to study the contributions of science to a rational discussion of political problems, and who have seen through the deception, must firmly deny that in a rational juridico-political argumentation there is room for the ideology of justice.

(p.356) § 69. A Few Examples

The analysis of the idea of justice that was presented in the preceding section and was based on a few simple formulae taken from a political ideology, will now be further illustrated through more advanced theories taken from legal philosophy itself.

As will have been gathered from the foregoing, the philosophers who have tried to provide a more theoretical presentation of the idea of justice, as the highest norm for the shaping of positive law, have been working under the pressure of a dilemma. On the one hand, if one wished to preserve the illusion that justice was an a priori evident idea, it would be necessary to formulate the principle in a highly abstract way in close connection with the pure idea of equality. By doing so, however, the principle ran the risk of becoming empty of meaning. On the other hand, if one wished to provide the principle with a substantive content, it would be difficult to maintain the illusion of self-evidence. This dilemma was bound to result in the principle being formulated more or less tautologically, or empty of meaning, at the same time as one smuggled in undisclosed dogmatic postulates of a juridico-political nature. In this way, what was empty acquired seeming content, and this content acquired seeming self-evidence.

(a) suum cuique tribuere, neminem laedere, honeste vivere*

This is the formula through which the Roman jurists gave expression to the principle of natural law, or principle of justice. In later periods, the formula has often been repeated as the quintessence of wisdom. It is not difficult to see that it is sheer delusion, and only gives the impression of being a matter of course because it does not say anything.

‘To give each his due’ sounds great. Who could deny it? The only problem is that the formula presupposes that I know what is due to each person as his own (that is, as his right). The formula is completely empty, then, because it presupposes the state of law it was meant to justify.

The demand to harm no one is a similar case. What does ‘harm’ mean? It cannot possibly mean ‘not acting in a manner that is detrimental to the interests [366]or wishes of others’. In this sense, the creditor ‘harms’ the debtor by recovering his debts, the businessman ‘harms’ another businessman in competition, and society ‘harms’ the criminal by punishing him. No, ‘harm’ can only mean that I must not infringe the interests of others unjustly, or that I must not violate their rights—which makes it clear that there is circular reasoning here as well.

(p.357) Finally, the same applies to the command to live honestly, where ‘honesty’ can obviously only mean that our conduct should conform to the letter and spirit of the law.

(b)Any action is right, if it can coexist with everyone’s freedom in accordance with a universal law (Kant’s formulation which is one of the most famous versions of the highest principle of law)

This idea can also be expressed as follows: the only thing that can justify restrictions on freedom of action is that such restrictions are necessary in consideration of the freedom of action of others, when the same rule shall apply to everyone.

The Kantian formula expresses very well that the demand for equality is identical with the demand for a universal law. But when there is no way of knowing the purpose of the universal law, the criterion is an empty one. For it is possible to imagine any course of action whatsoever being justified by one universal law or another applying to everybody. A killing his wife’s lover, for example, can be justified on the grounds of a universal law, saying that killing out of jealousy is permitted. A’s freedom can, thus, coexist with everyone’s freedom in accordance with the same universal law. The fact that for different reasons we do not think that this law is commendable is quite another thing and does not affect the application of Kant’s principle. If this principle is to have any meaning and content at all, then the point of departure must be that freedom of action is restricted in view of other people’s rights—whereby the usual circle manifests itself.2

(c) Justice as an equal weighing of interests (Nelson)

According to a widely held view, which reflects the general consciousness among both laymen and jurists undoubtedly better than Kant’s formalism, justice means an equal weighing of all interests affected by a certain decision. No one [367]has developed this idea more thoroughly and with greater perspicacity than the German philosopher Leonard Nelson.3

(p.358) Taking his point of departure in the general moral and legal consciousness, Nelson claims that the supreme principle of action that determines my duty shows the following three characteristics:

  1. (1) it sets limits, that is, it does not positively command us to pursue certain goals, but sets a limit to our freedom to pursue those goals towards which we are naturally striving;

  2. (2) this limit consists of the demand that when pursuing our interests, we should also consider the interests of others; and

  3. (3) this consideration is expressed in the demand that the agent shall be equally considerate of all interests affected by his action, without allowing himself to be influenced by the question which of them are his own interests, and which of them are the interests of other people. He shall weigh the interests against each other without regard to persons, or in such a way as if all interests were his own.

These three characteristics are now combined, by Nelson, within the following formulation of the principle of justice: ‘Never act in such a way that you cannot approve of your course of action if all the interests affected by it were your own.’

This principle, which practically turns the agent into a judge in his own case and demands an impartial decision of him, by means of abstraction from the difference between his own interests and those of others, is undeniably most intriguing, and no doubt harmonizes well with many jurists’ views on the task of finding the correct legal solution to a conflict of interest. Therefore, Nelson’s formula calls for a thorough examination. This I have attempted in one of my earlier works.4 It would lead us too far to repeat my argumentation in its entirety. Only a few principal points will be taken up once again.

The content of Nelson’s principle can be broken down into two elements. First of all, he requests us to perform a thought experiment, namely, to imagine (which in fact is not the case) that all interests affected by an action are the agent’s own interests. Then, we shall investigate whether the agent, under this imagined condition, would be able to consent to the action. If this condition is fulfilled, the action is lawful—but not otherwise.

I shall not pay attention to the fact that the thought experiment Nelson demands of us is not feasible in reality. While I can easily imagine myself [368]wearing somebody else’s hat, perfectly conscious that it belongs to someone else, this is not possible with an interest. I am unable to experience an interest and, at the same time, consider it, not as mine, but another person’s. An accurate analysis (p.359) will show that whatever meaning we are trying to put into Nelson’s thought experiment, it will lead to absurdity and is not feasible.

Therefore, we are obliged to cancel the thought experiment and formulate the claim in such a way that the agent shall balance all affected interests according to their respective weight in and of themselves, and regardless of whether they are his own interests or the interests of other persons.

Accordingly, there are two conclusive objections.

Firstly—and this applies irrespective of the cancellation of the thought experiment—Nelson’s principle rests on the presupposition that it is possible in a given situation of action, to dissect a certain number of interests with a definite, delimitable content. Otherwise, it would be meaningless to speak of weighing them against each other. This presupposition is also borne out by common opinion. If a bank fails, for instance, it is possible—or so it is believed—to distinguish in this situation at least the following interests: the interest of the savers in getting back their deposits; the interest of the creditors in the satisfaction of their claims; and the interest of the shareholders in the preservation of the share capital. But if we—naively—by A’s ‘interest in something’ only mean that the existence of this ‘something’ would be advantageous and satisfactory to A in light of the desires, needs, and inclinations with which nature has endowed him, then there is no reason to limit the interests in the manner indicated. It would indeed be advantageous and satisfactory to the depositors to get back, not merely their deposits, but twice as much or ten times as much, and in so far as they may be said to have any interest therein. There would thus be no measure to anyone’s interest; instead, everyone can be said to be infinitely interested in anything that would be advantageous to them. If this sounds somewhat twisted, and if no one would dream of referring to the depositors’ interest in getting back more than their deposits, then the reason for it is simply that the concept of interest with which we actually work in juridico-ethical deliberations, is not the naive concept presupposed here as the raw material for a legal evaluation. Nobody would dream of referring to the savers’ interest in getting back more than their deposits, since such a claim would seem altogether unreasonable and unjustified. However, this means that the concept of interest itself is legally qualified. It does not comprise any desire or claim imaginable, but only those desires and claims which are reasonable or justified. And this, in turn, means that the concept of interest presupposes the existence of a legal order, and that ‘weighing of interests’ cannot be the principle from which the law is derived.

Thus, when Nelson believes that he can deduce the supreme norm of action, or the principle for all law, from a weighing of previously given interests with a definite, delimitable content, he is wrong. The limitation of interests within a certain measure [369]necessarily presupposes an already existing legal order, to (p.360) distinguish between justified and unjustified interest claims. This legal order can only be the law of nature, manifesting itself in a set of natural rights. Justified interest originates in a natural right. In this way, even Nelson’s principle of justice dissolves into a tautology: justice consists in satisfying justified interests.

The second objection concerns the weighing of (the justified) interests. As mentioned previously, the trick of referring to how the agent would act if all affected interests were his own interests does not work. One is obliged to demand a weighing on the basis of the respective weights of the interests themselves, regardless of whose interests they are, and regardless of their motivating force. Nelson himself speaks of a true or well-conceived interest, determined through the objective weight of the corresponding benefit. Thus, in reality, the weighing is not a test of strength between the motivating force of different interests, but a weighing of benefits in relation to a presupposed, objective evaluation criterion.

Together, these two objections show that the evidence that Nelson’s principle of the equal weighing of interests apparently can claim is a delusion. The actual content of the principle does not lie in the ‘equal weighing’, but, rather, in the hidden presuppositions concerning the justification and objective value-weight of the interests; which is to say, in substantive postulates of a natural law and value philosophical character, seeking cover under the apparent evidence of the idea of equality. The masquerade of the idea of justice could hardly be staged with greater éclat.

(p.361) § 70. Justice and Positive Law

As we have seen, the idea of justice and equality resolves itself into the purely formal demand that the specific decision appear as the application of a general rule, no matter what rule. Justice is correct rule application—as opposed to arbitrariness.

The first and important consequence thereof, when it comes to the problem of the relation between the idea of justice and the positive legal order, is that justice cannot be a juridico-political yardstick, or an ultimate criterion according to which legal rules can be assessed and one rule preferred over another. Claiming that a certain rule is unjust is, as we have seen, nothing but expressing—blindly, emotionally, and inarticulately—that one reacts against the rule. Branding the rule as unjust provides [370]no real characteristic, no reference to any criterion, no argumentation—in short, it is merely a pathetic way of venting one’s aversion to the rule. Therefore, the ideology of justice has no place in a rational discussion on the value of legal rules.

This is not to say that there is no connection between valid law and the idea of justice. In this idea two elements can be singled out: first (a) the claim that there is a rule, or a set of rules, as the basis for a specific decision; then (b) the claim that the specific decision is, in reality, a correct application of this rule-basis to the situation in question. Accordingly, the problem can be formulated in the following two ways:

  1. (a) First, one might ask what role the idea of justice plays in the shaping of positive law, in so far as it is understood as a claim to rationality12 above); that is, as a claim that the norms of the law be shaped through objective criteria, in such a way that the specific decision becomes as independent as possible from the subjective reactions of the judge and, therefore, predictable.

    There is no doubt that such a claim is inextricably linked with the nature of the law as a social, institutional order, as opposed to individual ethical phenomena (§ 12). Without a certain minimum of rationality (predictability), it would be impossible to speak of a legal order, which presupposes, conceptually, that it is possible to interpret human actions objectively, as a coherent whole of meaning and motivation, and (within certain limits) to predict them (Chapter 1). In a way, the idea of justice, in the sense of rationality or regularity, can be said to be constitutive of the concept of law.

    Furthermore, formal, objective rationality is also an ideal of law, in the sense that a maximum thereof conforms to certain general considerations and wishes which—at least in our Western culture—make themselves felt in all legal formation.

    (p.362) To begin with, objective regularity—as opposed to subjective arbitrariness—is experienced as a value in itself. It is precisely this idea which is expressed in the old English motto that society shall be based upon the rule of law, not the rule of men. A judge shall not be like the Homeric king who fetches his themistes directly from Zeus, or like the Oriental kadi whose decision-making is guided by hidden wisdom. It is precisely this idea which makes us react against a tendency prevalent in totalitarian states—namely, to authorize the judge to disregard all fixed rules and decide according to the ‘sound legal consciousness of the people’ or ‘the interests of the proletariat’—and to call a situation like this a denial of the very idea of law.

    This evaluation is probably motivated by the social effects of being rule-governed. From the citizens’ point of view, this is the precondition for security and predictability in the affairs of communal life. [371]From the point of view of the authorities, it is a precondition for guiding citizens’ behaviour in the long run—that is, over and above the specific relationship at hand—by internalizing fixed patterns of behaviour.

    Objective regularity—formal rationality—is, then, a fundamental idea in all law; it is not the only one, however. Fixed in categories which are determined by objective criteria, the legal rule appears as a formalization of the evaluations appertaining to our cultural tradition. But the formalized rule is never able to express exhaustively all the considerations and circumstances that are relevant according to those evaluations. Therefore, it is unavoidable that the rule, when applied to the individual case, may lead to results which cannot be approved by the common sense of justice as a spontaneous, inarticulate expression of the fundamental evaluations. All law and all exercise of legal authority is, therefore, formally determined through a dialectic conflict between two opposite tendencies. On the one hand, a tendency towards generalization and decision-making with reference to objective criteria, and on the other, a tendency towards individualization and decision-making in light of the subjective estimates and evaluations of the common sense of justice. In short: on the one hand there is the idea of formal justice—on the other, there is the idea of equity in the individual case.1

    Both of these factors make themselves felt in the law working in real life under any circumstances, but their mutual relative weight can vary according to time and place, and between different areas of law.

    In the exercise of legal authority, this is expressed in the difference between a bound and a free type of interpretation, cf. § 29 above.

    (p.363) In legislation, the contrast manifests itself in the extent to which the rules, due to their own formulation, make room for judicial discretion. This can be done in two different ways. The legislator can either preserve the illusion of laying down a rule, but express it in terms so vague, or by referring to prevailing morality, that the outcome will amount to an extended freedom for the judge or administrative civil servant to exercise their discretion. We speak of legal standards2 in these cases. Or the legislator can simply give up and merely state that the decision [372]will be made at the discretion of the judge or administrative civil servant (possibly within certain limits).3

    From an evolutionary perspective, there seems to have been a development from rigorous formalism towards an ever wider scope for individualizing discretion, both as to legislation and the exercise of legal authority.

    The tension in the exercise of legal authority between formalized law and the demands of equity becomes particularly noticeable when it is preceded by a social development without any accompanying legislation that would adjust the legal rules to the changed conditions. In such a case, people will experience a strong desire for decisions which contradict the traditional rules. At first, such decisions will have the nature of equity decisions, precisely because they do not follow given rules but, rather, arise from an intuitive, discretionary assessment of the specific situation in its entirety. In the course of time, formal rationality will prevail once again, however. Through the practice of the courts, a set of considerations formulated according to a new doctrine will establish itself, and future decisions will be made on that basis and lose their character of equity. All throughout history, we repeatedly come across the curious circumstance within this context that this innovative and adjusting activity is being exercised, not by the ordinary courts, but by courts of special jurisdiction, with the consequence that the new law, developed in this manner, is regarded as a separate system of law—the law of equity, as a supplement to ordinary law.

    The development of equity law in English law is an excellent example.4 Because of the rigidity and obvious unfairness, under altered social (p.364) conditions, of the traditional common law, it became a common practice at a certain point of time to try to mitigate the results by appealing to the king against decisions which defied the demands of the common sense of justice. For the administration of the law was considered a royal prerogative. In such a case, the king exercised his power via the chancellor, who ‘was deemed to be the keeper of the royal conscience’. The chancellor was formally obligated to follow the common law, but in reality, under the stresses and strains of life, he pursued—guided by equity considerations—an activity of a quite discretionary and creative nature. In the course of time, the chancellor’s court (the Court of Chancery) was made a permanent institution, and the chancellor’s original, discretionary equity decisions were replaced by a regular exercise of legal authority, in conformity with the doctrines that had developed through the practice of the chancellor’s court. The chancellor’s equity decisions have given rise to criticism in their time. Making use of a grotesque metaphor, it was said that equity, according to the chancellor’s conscience, was no better than equity [373]according to his foot. ‘One Chancellor has a long foot, another a short foot, a third an indifferent foot; it’s the same thing in the Chancellor’s conscience.’ Later on, this criticism no longer applied, and Lord Eldon, one of the most famous English chancellors, was able to pronounce in a judgment: ‘I cannot agree that the doctrines of this Court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this Court varies like the Chancellor’s foot.’5

    A corresponding distinction between law (in the strict sense, jus strictum) and equity is unknown here in Denmark. This has partly to do with the more important role of legislation in bringing the law up to date, partly with the greater freedom of interpretation which has characterized the Danish courts, at least in modern times. For a Danish judge, law and equity are not opposites: rather, equity is an integral part of the law.

  2. (b) Secondly, one might ask whether the idea of justice asserts a lien on valid law, understood as a demand that the specific decision shall be a correct application of the norms of valid law.

    This question must definitely be answered in the affirmative. Whereas justice, as a norm for the legislator (as a yardstick for the ‘correctness’ of the law), is merely a chimera, justice as a norm for the judge is, on the contrary, a living and palpable reality. While the assertion that a certain law is unjust is nothing but a theoretically empty and pathetic expression of the speaker’s aversion to this law, the assertion that a certain decision is unjust refers to a real subject matter. It expresses the fact that the decision has not been (p.365) made according to the rules, but is owing to a mistake (unjust in the objective sense) or to a conscious deviation from the law (unjust in the subjective sense).

    It is especially the latter which corresponds to what in common usage is meant by injustice. To do wrong, or do an injustice, means that an individual, who has the power to make legal decisions allows himself—guided by personal interest, by feelings of friendship for one of the parties, by a desire to please those in power, or by other motives—to deviate from the commands of the law. The word is also used in this sense when § 146 of the Danish Criminal Code mentions that a person with judicial authority is deciding or handling a case unjustly.

    A more precise delimitation of the concept is nonetheless problematic. For it is not the case—as has been shown in the theory of interpretation (Ch. IV)—that on the basis of valid law, only one decision can be derived as the correct, or the objectively correct, decision. This applies even in cases where there is a genuine rule, expressed in relatively fixed concepts, and of course it applies—to an even larger extent—when it is a question [374]of standards, or even of a more or less unrestricted discretion. There is always a margin of varying breadth, and no one would call a decision that falls within this margin an unjust decision, not even in the objective sense. We call it a wrong decision, by which it is meant that the speaker himself would have concreticized the law in the case before him differently.

    But how to determine this margin; what are the ‘correct’ principles of interpretation, and how much interpretive freedom rests with the judge? Referring6 to ‘specifically legal’ motivations, as opposed to considerations of power and interest, does not solve the problem, because a specifically legal evaluation does not exist. The law develops out of the same practical attitudes, interests, power factors, and ideological components that make themselves felt in society, even outside legal affairs. As far as I can see, the question cannot be answered in any other way than by reference to what is typical and normal in actual adjudication. Objectivity is the typical, the normal; subjectivity is the atypical, the abnormal. The decision is objective (just in the objective sense) when it is covered by such interpretive principles and evaluations as are common in legal practice. It is subjective (unjust in the objective sense) when it deviates therefrom. The subjectivity or unjustness expresses precisely that the decision is felt to have arisen from the individuality or subjectivity of one particular judge, in contrast to what is typical of the judiciary as a whole. The decisions pronounced by the famous French judge Magnaud (‘le bon juge’) were, thus, not (p.366) merely ‘incorrect’ (like so many other decisions), but arbitrary or unjust in the objective sense. That we do not wish to call this man an unjust judge (unjust in the subjective sense), however, is due to his undoubtedly acting to the best of his belief, guided by a profoundly moral conception of law.7

(p.367) § 71. Equality Claims as Scientifically Valid Law

From what has been said in the previous section, it emerges that a demand, worded in general terms, to the effect that everyone shall be placed on an equal footing or be treated equally, is an empty demand in so far as it merely means that the [375]treatment accorded to every individual shall follow general rules.1 If such a demand has been authorized by law it will result in a specific problem of interpretation, namely, whether it must be written off as a mere ideological, but legally empty formulation, or whether it is possible, on a historical basis, to ascribe any particular meaning to it. If such a demand exists in doctrine, it will be a task for the critique to demonstrate its emptiness, and to ask what could possibly have been meant by it.

The situation is different if the demand has been given a special content, for example, as a demand for equality for all, irrespective of gender or race. Such a demand is meaningful. It contains a prohibition against the occurrence of criteria determined by a person’s gender or race in the general rules concerning his legal position, or against paying attention to them in specific decisions. According to circumstances, of course, specific problems of interpretation may arise concerning the exact scope of the prohibition.

In the following, I shall adduce different examples in order to illustrate problems of this kind.

  1. (a) National constitutions often contain a provision stating that all citizens are equal before the law.2 These provisions seem to be devoid of any independent, plain meaning. To all appearances, they can only mean one of two things:

    1. (1) that the law shall be upheld according to its content, without distinction of persons, against anyone whom it concerns—which is a matter of course and already inherent in the concept of a law;

    2. (2) that the law must not base its rules on distinctions or characteristics which are considered ‘partial’ or ‘unjust’ in relation to the respective (p.368) legal effect. Such a prohibition against ‘unjust’ laws3 is devoid of any precise meaning, however, since ‘injustice’—which, within this context, can only mean ‘injustice’ in the substantive sense—is, as we have seen, nothing but a subjective and emotional expression of aversion to a certain order.

    Provisions of this type can probably be explained historically and ideologically, namely as a reaction against the former state of the law, when certain sections of the population—for instance the nobility—were granted privileges, in particular privileges concerning jurisdiction (now abolished). It is possible—according to circumstances—to understand these provisions on a historical basis, [376]as a prohibition against the reintroduction of such privileges.4 If, on the other hand, the demand for equality is qualified by a reference to fixed criteria according to which discrimination is not allowed,5 then the provision has a tangible meaning. It precludes the occurrence of such criteria in ordinary legislation.

    The Danish Constitution does not include a general principle of equality, but it includes, in § 77, a special prohibition against anybody being deprived, by reason of his creed, of access to the full enjoyment of civic or political rights, or against anybody escaping compliance with any common civic duty.6 And yet it was thought possible on the basis of this provision to project, into the Constitution, a general principle of equality and, by invoking it, demand that a legislation on the freezing of rent be set aside by the courts as unconstitutional. Irrespective of the fact that there is no basis for projecting a ‘principle of equality’ into the Constitution—which, according to what has been said previously, must mean a less than substantial prohibition against (substantively) ‘unjust’ laws—one can rest assured that the Danish courts will decline the adventure to set aside a law, made by King and Parliament, as ‘unjust’. The exercise of discretion concerning what is ‘right and proper’ cannot be separated from political evaluations, and, according to the Danish conception of law, this estimation can rest with Parliament alone. Granting the courts a ‘right of judicial review’ with reference to the ‘justice’ of the laws would simply amount to the same thing as making the Danish Supreme Court the highest political authority in Denmark. Such a thing would never be tolerated.

  2. (p.369) (b) An abstract principle of equality is set up sometimes, as a guideline to the administration in the exercise of its discretion. What has been said under (a) applies here as well. The principle does not contain a substantive norm for the exercise of discretion, but expresses only a formal demand, namely, that the decision shall be made on the basis of general deliberations and considerations, not capriciously or arbitrarily. Whether the administration is bound by considerations on which prior decisions of the same kind have been based—this is another question.7

    An example of a qualified principle of equality is the Danish Statute No 100 of 4 March 1921, which—with some exceptions—gives to men and women under the same [377]conditions equal access to all official positions and assignments, in state and municipalities, and an equal obligation to undertake civic duties.8

  3. (c) An abstract demand for equality as one of the so-called fundamental rights of states is often set up in international law doctrine. Since this issue appertains to international law,9 it should only be noted here that such an abstractly formulated demand certainly is devoid of meaning, but that it is underpinned, partly by a prohibition against discrimination on the basis of the size of the states, partly by rules that have nothing to do with equality or inequality (the principle of unanimity and the rule concerning extraterritoriality).

  4. (d) In the doctrine of expropriation, it is a generally received opinion that the borderline between expropriation and seizure of property without compensation is basically determined according to a criterion of equality: the seizure falls outside the scope of § 80 of the Danish Constitution if it affects all properties of the same sort; otherwise, it is a case of expropriation.10 Within this context, one has also invoked the principle under which all citizens are equal before the law, a principle presumed to be presupposed by the Constitution.11 However, it is clear that the principle of equality is just as empty within this context as anywhere else. Every law that describes the object of the seizure in general concepts or characteristics affects everyone equally and concerns all property ‘of the same sort’. What objects are ‘of the same sort’, is surely not determined by Nature but, rather, because they have been assigned to the same conceptual category, no matter how this category is defined. The term ‘farm’ defines a group of objects ‘of the (p.370) same sort’. But this applies also to all the other conceptual definitions—such as, for example: ‘Farms with thatched roofs’, ‘farms with thatched roofs and adjoining land of over 2 hectares’, ‘farms on the island of Fyn [Funen] with thatched roofs and adjoining land of over 2 hectares, the owner of which has been in possession of the farm for more than twenty-five years, and on which there is a mortgage debt of more than 100,000 Danish Crowns’—regardless of whether there is possibly only a single farm that meets the above criteria.

    When mentioning that the demand for equality must not be understood in the formal sense, and that the decisive factor is whether the seizure takes place according to distinctive marks which are ‘objective’, ‘reasonable’, or ‘just’, then this simply means that the idea of equality vanishes and is replaced with a reference to what is considered ‘just’ according to a subjective and emotional view. Such a ‘principle’ is no genuine principle—rather, it means abandoning any attempt at rational analysis.

Notes:

(1) For further information, see Del Vecchio, Die Gerechtigkeit [Justice] (1940), 7 et seq.

(*) Translator’s note: Matthew 5:6 [The Official King James Bible]. In the Danish Bible, the word used for ‘righteousness’ is ‘justice’ [retfærdighed].

(2) See Del Vecchio, Die Gerechtigkeit [Justice] (1940), with numerous references.

(1) By way of exception, ‘justice’ can also mean absolute equality, immune to any kind of difference-making: thus, when sometimes death is conceived as an equal fate that affects everyone, without regard to worldly distinctions. Obviously, such an idea lies behind the well-known medieval pictures of Death, dancing with people from all walks of life—with emperor and pope, citizens and beggars.

(2) Cf. (in part) C. Perelman, De la justice [On Justice] (1945), 16 et seq.

(3) See the chapter entitled ‘Totalitarian Justice’ in K. R. Popper, The Open Society and its Enemies, vol. I (1945), 74 et seq.

(4) This and nothing else lies embodied in the maxim: ‘Do not do unto others what you would not have them do unto you.’

(*) Translator’s note: ‘To give each his due, to hurt no one, to live honourably.’

(1) Immanuel Kant, Metaphysik der Sitten, Einleitung in die Rechtslehre [The Metaphysics of Morals. Introduction to the Doctrine of Right], (1797) § C.

(2) A rule with a content similar to that of Kant’s rule is included in the Turkish Constitution of 20 April 1924 (10 January 1945) § 68: ‘Every Turk is born free and lives freely. “Freedom” refers to any act that is not detrimental to others. The freedom of an individual (which is his natural right) is limited only by the freedom enjoyed by his fellow citizens. These limits are defined exclusively by the law.’ It is precisely the absolute emptiness of such a formula, further guaranteed by the last sentence of § 68, that makes it suitable for use as ideological ornamentation.

(3) Leonard Nelson, Kritik der praktischen Vernunft [Critique of Practical Reason] (1917). For a detailed and documented account of Nelson’s doctrine, see my Kritik der sogenannten praktischen Erkenntnis [Critique of So-called Practical Knowledge] (1933), ch. XI, 2.

(4) See the previous note.

(1) ‘The most profound tension within the law—and for precisely this reason also the essentially formal tension within the law—can be called: regularity versus individualization’, Viggo Bentzon said in his inspirational treatise Skøn og Regel [Discretion and Rule] (1914). In this treatise, Bentzon made—with great delicacy—precisely this tension the subject of his investigation.

(2) See especially Ragnar Knoph, Rettslige Standarder [Legal Standards] (1939) and Marcel Stati, Le standard juridique [The Legal Standard] (1927). For example, the Danish Prices Act, promulgation no 463 of 14 Nov. 1949, § 8, which contains a prohibition against unreasonable prices, profits, and trade terms; the Danish Unfair Competition Law, promulgation no 80 of 31 March 1937, § 15, referring to good business conduct; § 33 of the Danish Contracts Act (general honesty). When the law sometimes demands—as, for example, § 29 of the Danish Contracts Act and § 279 of the Danish Penal Law—that an action, as a condition for a certain legal consequence, shall be performed unlawfully, then this means a totally empty poster in order to hide that the legislator has given up and refers the judge to a restrictive interpretation on the basis of custom and free evaluations, cf. pp. 300–1 above.

(3) In the field of private law, typical examples (among many others) are § 63 of the Danish Age of Majority Act and § 25 of the Danish Insurance Contracts Act. In the field of public law, especially administrative law, there are so many discretionary powers that it is futile to adduce examples.

(4) For further information, see C. K. Allen, Law in the Making (4th edn, 1946), 322 et seq. and Alf Ross, Theorie der Rechtsquellen [Theory of the Sources of Law] (1929), 123 et seq., with references; see also Torstein Eckhoff, Rettsvesen og Rettsvitenskap i U. S. A. [Legal System and Legal Science in the USA] (1953), 38 et seq.

(5) Gee v Pritchard, 2 Swants, 414. Cited in Thomas Erskine Holland, The Elements of Jurisprudence (1880), 74.

(6) Like Otto Brusiin in his work Über die Objektivität der Rechtsprechung [On Objectivity in the Administration of Justice] (1949), 25–26; cf. Alf Ross, book review in TfR, 1950, 476.

(7) H. Leyret, Les jugements du president Magnaud [The Judgments of President Magnaud] (1900); see also Francois Gény, Méthode d’interprétation et sources en droit positif [The Method of Interpretation and the Sources of Positive Private Law], II (1919), 278 et seq.

(1) [General remark to § 71:] In connection with this section, cf. Poul Andersen’s informative article ‘Lighedsgrundsætninger i forvaltningsretlig Belysning’ [Principles of equality in the light of Administrative Law], JFT, 1937, 479 et seq.

(2) E.g. the Constitution of Ireland of 1 July 1937, art. 40: ‘All citizens shall, as human beings, be held equal before the law;’ the Constitution of Czechoslovakia of 9 May 1948, special provision § 1: ‘All citizens are equal before the law;’ the Constitution of Turkey of 10 January 1945, art. 69: ‘All Turks are equal before the law’ (W. Brorsen (ed.), Die Verfassungen der Erde in deutscher Sprache nach dem jeweils neuesten Stande. Übersetzt und herausgegeben von W. Brorsen [The Constitutions of the World, in the German language translation and up-to-date on recent developments. Translated and edited by W. Brorsen] (1950). Among the Northern constitutions, only the constitution of Finland of 17 July 1919 includes a general norm of equality, namely in § 5: ‘Finnish citizens are equal before the law.’

(3) Understood in this sense, the provision has actually nothing to do with equality. This expression is merely used to create an appearance of self-evidence for certain postulates, cf. p. 354 above.

(4) The 14th Amendment to the US Constitution, which promises everyone ‘equal protection of the laws’, and which was adopted in 1868 after the end of the Civil War, thus had a historical purpose—namely, the equality of the black and white races.

(5) E.g. the Constitution of Italy of 27 Dec. 1947, art. 3: ‘All citizens … are equal before the law, without regard to gender, race, language, religion, political conviction, and personal and social position’; the Constitution of the USSR of 5 Dec. 1936, art. 123: ‘The equality of citizens of the USSR in all areas of economic, national, cultural, social, and political life, regardless of nationality and race, is inviolable law’ (W. Brorsen, op. cit.).

(6) Cf. also §§ 81 and 90.

(7) On this issue, cf. Poul Andersen, op. cit. (see § 71, note 1) 488 et seq.

(8) See Poul Andersen, Dansk Forvaltningsret [Administrative Law in Denmark] (1946), 138 et seq.

(9) Alf Ross, Lærebog i Folkeret [A Textbook of International Law], § 34.

(10) See O. K. Magnussen, Naboretlige Studier [Studies in the Law Regulating Neighbouring Rights] (1950), 137, 148.

(11) Vinding Kruse, Ejendomsretten [The Right of Property] (3rd edn, 1951), 252.