Jurisprudence
Law versus Justice
At a Glance ▪ Law is the body of rules the State makes or recognises and enforces; justice is the ideal those rules exist to serve. Law is the means, justice the end. ▪ The classic definition of justice is Ulpian's: the constant and perpetual will to render to each his due. It is often wrongly credited to Aristotle. ▪ Aristotle gave the key kinds: distributive justice (sharing benefits and burdens by merit) and corrective justice (righting wrongs between parties). He also made equity (epieikeia) the corrective of law where its generality fails. ▪ Sceptics deny that justice can be known rationally: Kelsen called absolute justice an irrational ideal, and Alf Ross likened an appeal to justice to banging on the table. ▪ When law and justice collide, the Radbruch formula (1946) says statute yields only where its injustice reaches an intolerable degree. In India, Art. 142 empowers the Supreme Court to do complete justice, but not to override substantive statute. |
Think of a cricket match. The laws of cricket fix what counts as a run, a wicket or a no-ball, and the umpire applies them. That is law: definite rules, applied by an official, binding whether a player likes them or not. But spectators also judge the match by another standard: was it fair? Did the rules favour one side? Did the umpire decide honestly? That second standard is justice. Usually the two agree, and a match played by the rules is a fair match. Occasionally they part, and every claim that a law is unjust lives in that gap. The theories of justice themselves (Rawls, Nozick, Sen) are treated in Note 21 and are only cross-referred here.
Figure: Law as the means and justice as the end: law aims at justice, to render to each his due, and an unjust law is a means that misses its mark
1. The Two Ideas
Law is a body of rules made or recognised by the State and enforced by its power. It is positive: it exists as a fact, can be found in statutes, precedents and recognised customs, and is knowable in advance. Justice is a moral ideal. At its core it means giving each person what is due to him, treating like cases alike and unlike cases differently, distributing benefits and burdens fairly, and righting wrongs. Law is something that is; justice is something that ought to be, the standard by which law is measured. If the two were the same, 'unjust law' would be a contradiction in terms; it plainly is not.
2. Classic Definitions
Classic Definitions ▪ Ulpian (Roman jurist, Digest): 'Justitia est constans et perpetua voluntas jus suum cuique tribuendi': justice is the constant and perpetual will to render to each his due. Repeated at the opening of Justinian's Institutes. ▪ Aristotle (Nicomachean Ethics, Book V): justice is the complete virtue in relation to others; particular justice is either distributive (by proportion to merit) or corrective (restoring equality between parties). ▪ Salmond (Jurisprudence): law is the body of principles recognised and applied by the State in the administration of justice. The courts administer justice according to law, not justice according to each judge's own conscience. |
3. Kinds of Justice
The main kinds ▪ Distributive justice (Aristotle). How a community shares out honours, wealth, offices and burdens among its members. It works by geometrical proportion: equals get equal shares, unequals get unequal shares according to merit or need. ▪ Corrective (rectificatory) justice (Aristotle). Restoring the balance between two parties when one has wronged the other, in voluntary transactions (contract) and involuntary ones (tort, crime). It works by arithmetical equality: the judge takes the gain from the wrongdoer and restores the loss to the victim, regardless of who is the better person. ▪ Formal and substantive justice. Formal justice is the bare requirement to treat like cases alike and apply the rules impartially; Hart saw it as the element of justice built into the very idea of applying a rule. Substantive justice asks whether the rules themselves are fair. A racially discriminatory law applied with perfect consistency is formally just and substantively unjust. ▪ Procedural justice. Fairness of the process by which decisions are reached: notice, hearing, an unbiased judge, reasons. Natural justice in Indian administrative law is procedural justice. ▪ Natural and positive (legal) justice. Natural justice is justice as reason and morality conceive it; positive or legal justice is justice as the law of a given State declares and enforces it. Salmond's 'justice according to law' is legal justice. |
Equity: the corrective of law
Aristotle saw that law must speak in general terms, and that no general rule can foresee every case. When a case arises that the lawgiver would have treated differently had he foreseen it, epieikeia (equity) corrects the law where it fails by reason of its generality. Equity is therefore not opposed to justice; it is a higher form of justice that completes the law. The English Court of Chancery grew from the same idea, and Maine listed equity among his agencies of legal change (after legal fictions, before legislation).
4. How Law and Justice Differ
Basis | Law | Justice |
|---|---|---|
Nature | A body of enforceable rules | A moral ideal: rendering to each his due |
Is or ought | The law that is; a social fact | The law that ought to be; a standard |
Source | Made or recognised by the State | Reason, morality, the sense of fairness |
Certainty | Definite and knowable in advance | Contested; varies with viewpoint |
Generality | General rules that may misfit a case | Attends to the particular case (equity) |
Sanction | Enforced by courts and State power | No sanction of its own; works through law and conscience |
Role | The means, the instrument | The end, the goal law serves |
Courts insist on justice according to law rather than justice at large for two reasons: certainty (if each judge did what he thought just, like cases would not be treated alike, itself an injustice) and legitimacy (in a democracy the legislature makes the basic choices of distributive justice).
5. How They Relate
Means and end ▪ Justice is the end of law. The whole apparatus of rules, courts and remedies exists to do justice, and a legal order is judged in the last resort by how far it renders to each his due. ▪ Law is the means to justice. An ideal without an instrument is powerless. Law gives justice a definite, enforceable form and protects it against the strong. ▪ Justice must also be seen. Lord Hewart CJ in R v Sussex Justices (1924) held that it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Public confidence is part of justice. |
6. The Sceptics: Can Justice Be Known?
Positivists and realists doubt that justice can be a scientific standard at all. Kelsen, in his essay 'What is Justice?' (1957), surveyed the great formulas (to each his due, the golden rule, Kant's categorical imperative, Aristotle's mean) and argued that each is empty until some value judgment fills it in. 'To each his due' tells us nothing until we know what is due. He concluded that absolute justice is an irrational ideal and that reason can establish only relative values, which is why he kept justice out of his Pure Theory of Law (Note 12).
The Scandinavian realist Alf Ross went further. In On Law and Justice (1958) he argued that to invoke justice is like banging on the table: an emotional expression that turns a personal demand into an absolute postulate and puts an end to rational argument (paraphrase). For Ross, justice has a sensible meaning only as the correct application of a given rule, which is formal justice. The sceptics' point is not that law should be unjust, but that 'justice' is too contested to decide what the law is.
7. The Gap: Unjust Law and the Radbruch Formula
When law and justice part company, what should a judge do? The natural lawyer answers that a grossly unjust law is a defective law, perhaps no law at all (see Note 54). The positivist answers that an unjust law is still law, valid though it may not deserve obedience (see Note 55). Between them stands the most influential modern answer, the Radbruch formula.
The Radbruch formula (1946) ▪ Gustav Radbruch, a German legal philosopher and relativist before the Nazi period, restated the relation of law and justice in his 1946 essay on statutory lawlessness and supra-statutory law. ▪ The rule: positive law, secured by enactment and power, takes precedence even when its content is unjust, because legal certainty is itself a value. But where the conflict between statute and justice reaches so intolerable a degree, the statute, as 'flawed law', must yield to justice. ▪ A second limb: where there is not even an attempt at justice, where equality is deliberately betrayed in enacting the statute, it is not merely flawed law but lacks the very nature of law. ▪ Use: German courts applied the formula to Nazi statutes after the war and later to the killing of people fleeing across the Berlin Wall. Hart attacked it in 1958 (Note 65), preferring the honest course of open retrospective legislation. |
The formula avoids both extremes: certainty wins in ordinary cases of injustice, yet legalised atrocity cannot bind merely because it was enacted.
8. Law and Justice in Indian Constitutional Law
The Indian Constitution builds justice into law. The Preamble promises justice, social, economic and political. Article 39A directs the State to secure that the legal system promotes justice on a basis of equal opportunity and to provide free legal aid. Article 142 gives the Supreme Court power to pass any decree or order necessary for doing complete justice in any cause or matter pending before it. And the courts have read natural justice into administrative action.
Union Carbide Corporation v Union of India Supreme Court of India, 1991 Upholding the Bhopal gas leak settlement on review, the Court explained that the power under Art. 142 is of a different quality from ordinary statutory power, and that limitations in ordinary laws do not by themselves limit it, though the Court must take note of express statutory prohibitions based on fundamental public policy. |
Supreme Court Bar Association v Union of India Supreme Court of India, 1998 The Court held that Art. 142 is supplementary in nature and cannot be used to supplant substantive law or to achieve indirectly what a statute expressly forbids. It therefore could not suspend an advocate's licence, a power the Advocates Act 1961 vests in the Bar Councils. Complete justice must still be justice according to law. |
M.H. Hoskot v State of Maharashtra Supreme Court of India, 1978 Reading Art. 21 with Art. 39A, the Court held that free legal aid for a prisoner who cannot afford counsel, and a copy of the judgment in time to appeal, are part of fair procedure. Formal access to courts without the means to use them is not justice. |
Hussainara Khatoon v State of Bihar Supreme Court of India, 1979 Undertrial prisoners had been held in Bihar jails for periods longer than the maximum sentence for their alleged offences. The Court held that speedy trial is part of Art. 21 and ordered free legal aid and release, a landmark in making procedural justice real. |
A.K. Kraipak v Union of India Supreme Court of India, 1969 A candidate for selection sat on the selection board. The Court held the selection vitiated by bias and extended natural justice to administrative action, explaining that its aim is to secure justice or, put negatively, to prevent miscarriage of justice. |
9. Evaluation
The relation is best stated as partnership with tension. Law without justice is mere force; justice without law is mere aspiration, and justice done case by case at each judge's discretion would destroy the certainty that is itself part of justice. India writes justice into the Constitution as a goal (Preamble, Art. 39A), a procedure (natural justice, Art. 21) and a residual power (Art. 142), yet the Supreme Court Bar Association case keeps even complete justice within the frame of law.
Memory Aid ▪ Analogy: law is the map, justice is the destination. A good map gets you there; a bad map (an unjust law) leads you astray, and equity is the traveller's correction when the map did not foresee a new road. ▪ Mnemonic for Aristotle's two kinds: 'D for Divide, C for Correct'. Distributive = dividing the common cake by merit (geometric); Corrective = correcting a wrong between two parties (arithmetic). ▪ Radbruch in one line: 'Certainty first, unless intolerable.' Radbruch, 1946. ▪ Sceptics' pair: Kelsen = irrational ideal; Ross = banging on the table. |
Exam Corner: Likely Questions ▪ 'Law is the means, justice is the end.' Explain the relationship between law and justice. ▪ Discuss the kinds of justice with reference to Aristotle. How does equity correct the law? ▪ Explain the Radbruch formula. How far does it resolve the problem of unjust law? ▪ Examine the scope of Art. 142 of the Constitution in the light of Union Carbide (1991) and Supreme Court Bar Association (1998). |
Exam Corner: MCQ Traps ▪ 'The constant and perpetual will to render to each his due' is Ulpian, often misattributed to Aristotle. ▪ The Radbruch formula dates from 1946. Hart criticised it in his 1958 Harvard Law Review article. ▪ 'Justice should not only be done, but should manifestly and undoubtedly be seen to be done' is Lord Hewart CJ, R v Sussex Justices (1924). ▪ 'What is Justice?' (1957) is Kelsen; the table-banging image is Alf Ross. |
10. Frequently Asked Questions
Q. What is the difference between law and justice?
A. Law is the body of rules the State makes or recognises and enforces, the law that is. Justice is the moral ideal of rendering to each his due, the standard by which law is judged. Law is the means; justice is the end it exists to serve.
Q. What is the Radbruch formula?
A. Radbruch's 1946 rule that positive law prevails even when unjust, for the sake of legal certainty, unless its conflict with justice reaches an intolerable degree, when the statute must yield. Where a statute does not even attempt justice, it lacks the nature of law.
Q. Can the Supreme Court override a statute to do complete justice under Art. 142?
A. No. Supreme Court Bar Association (1998) held that Art. 142 supplements the law but cannot supplant substantive statutory provisions. Union Carbide (1991) had said ordinary statutory limits do not by themselves confine the power, but express prohibitions of fundamental policy must be respected.
See also: Note 21 (theories of justice: Rawls, Nozick, Sen), Note 26 (administration of justice), Note 54 (positive and natural law), Note 55 (natural law versus positivism), Note 65 (Hart versus Fuller).
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