The Germ of Justice

21 Pages Posted: 6 Nov 2010  

Leslie Green

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

Date Written: October 2, 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.

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

Suggested Citation

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

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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