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The Germ of Justice


Leslie Green


University of Oxford - Faculty of Law; Queen's University - Faculty of Law

October 2, 2010

Oxford Legal Studies Research Paper No. 60/2010

Abstract:     
This paper addresses the perennial question of the relationship between law and justice. HLA Hart argued that ‘we have, in the bare notion of applying a general rule of law, the germ, at least, of justice.’ If true, this establishes a necessary connection between law and morality. hat is no objection, for the so-called ‘separability thesis’ is anyway false. But the ‘germ-of-justice’ thesis is also false. Justice is a matter of the correct allocation of benefits and burdens among people.

Contrary to what Hart and others think, there is not necessarily any injustice in failing to apply a valid legal rule, not even an ‘administrative’ injustice. It is readily conceded that ‘formal justice’ is not enough in law, that we also need ‘substantive justice.’ This too is a mistake. Formal justice is not insufficient; it is incoherent - all justice is substantive. Might constant rule-application do justice by promoting impartiality? Not necessarily. It depends on the content of the rules and on the nature of the of the adjudicator’s prejudices. There is nonetheless a weak connection between law and justice. Every legal system has courts whose job it is to aim at justice: they must decide not only whether plaintiff deserves a remedy, or whether the prosecution is entitled to a conviction, but also whether these should be ordered in the face of a claim to the contrary. Courts have an allocative job to do. This does not show that they must achieve justice, or even a minimum of justice. Nor does it show that justice is the first virtue of legal institutions. The connection between law and justice is real, but modest. Justice is a necessary aim of a necessary legal institution.

Number of Pages in PDF File: 21

Keywords: Justice, Formal Justice, Administrative Justice, Legal Positivism, HLA Hart, Hans Kelsen, John Gardner, Rules, Impartiality

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Date posted: November 6, 2010  

Suggested Citation

Green, Leslie, The Germ of Justice (October 2, 2010). Oxford Legal Studies Research Paper No. 60/2010. Available at SSRN: http://ssrn.com/abstract=1703008 or http://dx.doi.org/10.2139/ssrn.1703008

Contact Information

Leslie Green (Contact Author)
University of Oxford - Faculty of Law ( email )
Balliol College
Oxford
Oxford, UK, OX1 3BJ
United Kingdom
Queen's University - Faculty of Law ( email )
Kingston, Canada, Ontario K7L3N6
Canada
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