The above ‘title’ is based on a comment in the article – The Medieval Idea of Law (Walter Ullman). The article discusses the role the Glossators, who rediscovered ancient Roman legal texts, played in the advancement of Roman law; and the Post Glossators who expanded the early work of their predecessors and developed Roman law into something more than just ideas, more than just a virtue. The Glossators did not attempt to harness any new concepts to the ancient texts, they simply commented upon them using their singular belief that law was only based on Justinian teachings. The Post Glossators took this and built upon it, introducing a philosophical undercurrent. They formed a highly regarded European school of legal studies, creating universities such as those in Bologna, Peruvia, Padua and Siena; and devoted much of their energy to determining how law could be applied in practice rather than just principle.
Law is a system for governing society, a way to maintain, support and protect public order, and as such it cannot be based just upon one tenet as the Glossators suggested. In my view, and in common with the notions put forward by the Post Glossators, law is not only based on an ethereal notion of justice, but has as its cornerstones morality, philosophy, religion, history, science, sociology and yes, ethics. Therefore the many and various ideas introduced and evolved by the Post Glossators helped to develop law from a narrow concept into a multi faceted principle.
But were they correct? Were their endeavours misplaced, and is too much made of law today. Should law be an insular notion, untroubled by consideration of philosophical and moral direction?
CT, in their response to the question “Is law purely the translation of the ethical idea of justice, or is it something more?”comments on the historical view that law was the product of a higher authority. It was divine and therefore, in man’s eyes, unquestionable, worthy of respect and should not be challenged. A more modern view no longer considers law to be a divine product but more of an abstract concept, informed by ethics, morality, values and ideology. Justice is a representation of that ideology which is based upon a philosophical definition of values.
This leads me to ask the question – is law, therefore, a discipline of philosophy rather than a separate entity? Should the notion that law is for lawyers, and therefore only specially trained individuals have the knowledge and expertise to expound it, be dismissed? Should law be a component of a philosophy degree for example, rather than vice versa?
If, to answer the original question ‘is law purely the translation of the ethical idea of justice’ in the affirmative, then it could be argued that law cannot be separated from philosophy as justice is a representation of a philosophical ideology. However, if the answer to the question is a negative one, as I would suggest, then it is clear that law is much more than simply an ethical representation, and indeed, as LW commented, law can be something less than justice! Law in practice may deviate from concepts not only of justice but also of morality and ethics. For this reason, if no other, there is a clear delineation between philosophy and law – the former must inform the latter, but cannot supplant it.
As we have seen, historically speaking law was considered the product of a higher authority and that is still true to a certain extent. In the past that authority was divine and law was the embodiment of divine rule and therefore unquestionable, almost sacred. People respected the law because it was divine and not man-made which meant that it could not be challenged or criticised without committing blasphemy at the same time. So law was traced back to a divine authority which legitimized law’s power.
In modern times something similar can be said. There is still this notion that law does not exist on its own, in a vacuum, but rather that there is a basis that validates its existence and gives it meaning and purpose. This basis is not divine anymore and it is not attributed to a person or individual either; rather it is more abstract and decentralized. It is ideology, values, ethics and morality that informs law today. Ideas like justice, truth and the greater good that law serves are what legitimize it and, in that sense, law becomes a representation of that ideological framework.
But interestingly enough, this framework derives from philosophy and is determined by how those values are defined, meaning that law is deeply connected to how those values change, where and under what circumstances. Law, therefore, is not insular—and should not be in any case—because it has an inherently secular role, it is meant for the people, to ensure their well-being and rights. It is driven by philosophy and morality as its claims to justice and truth prove and therefore is not merely a translation of an ethical system but a representation and embodiment of it.
During the last three days in Paris pursuing an intensive consideration about law and the role of humanities intrinsic to, hand in hand or extrinsic to it I have, possibly until now, developed no more than a limited, narrow understanding for the existence of law. I have not ascribed it virtues as a translator or as being a partner to promote any definition of justice.
‘Law can never have the last word’, writes Costas Douzinas. It has, he admits, a secret (and in agreement I have not allowed it the ability to have the last word) as it is an empty fictitious, linguistic construct embodied by ‘offices’ and in offices of lawyers and jurists. But I then give law some ethical value by admitting that it enables listening to arguments for and against justice and injustice according to the aggrieved person or legally constructed person. ‘The greatest injustice happens when the victim is not allowed to give evidence of her injury which leads to oppression’. The existence of law empowers listening (whether for altruistic reasons or financial reward) and accords a moment of justice.
I have re-read Costas Douzina’s article ‘A Humanities of Resistance’ and come across a very persuasive paragraph (which he describes as a little detour) about naturalism and its link with justice. My innately positivist or realist tendency has impoverished, even emptied the vessel of law and allowed it to be filled with economic and political possibility. Douzinas writes that ‘justice is cumulatively (as I argue has common law) the foundation, spirit and end of the law’ (end meaning reason). Justice is the ‘primitive’ (prime) or divine (god or sovereign) reason for the role of law. Douzinas then reminds me that just law is just one part of the whole concept of justice. The human-ness of justice must again include ethical philosophical, literary and (of particular contemporary consideration regarding the fundamental revisions of some beliefs) theological principles. Just law and the humanities must then be implemented justly: A further art of the law.
I acknowledge Costas Douzinas article ‘A Humanities of Resistance: Fragments for a Legal History of Humanity’ and Douzinas and Adam Geary’s book ‘Critical Jurisprudence: The Political Philosophy of Justice’.
As ML has pointed out above, by the medieval period justice was recognised as the supreme philosophical cornerstone and purpose of law: the two concepts were inextricably bound together. In this post I would like to explore some questions as to what we understand by ‘justice’ and whether the link between law and justice exists in the same way today.
Whilst it is relatively easy to see the value of the concept of justice it is more difficult to pin down exactly what we mean when we speak of justice or a ‘just’ outcome? Many theories of justice have been proposed, such as distributive justice, justice as equality and even theories that more problematically consider law and justice to be synonymous. Those who agree as to the worth of the concept of justice as a value may disagree as to the nature of its content due to their own political or moral beliefs. As Del Vecchio points out, the ‘universal virtue’ of justice does not prescribe any particular function or type of behaviour. It is difficult to avoid viewing this conception of justice as a relativistic concept or ‘empty vessel’ that can be filled and adapted to contemporary mores. However the open-textured nature of justice can be seen as a particular strength, enabling this concept to remain constant as the primary purpose of law despite social changes.
A second point relates to whether justice is still envisaged as the purpose of law, at least by those involved in the creation and practice of law. ML’s original post asks whether law is only the translation of justice or if it is something more? I would argue, using my own experience (in civil litigation in a solicitors’ firm) as an example, that in certain areas of legal practice it is something less than justice. In legal practice the law is used to pursue the interests of one’s client according to their instructions. Whilst there are rules of professional ethics to be adhered to, wider considerations of justice are unlikely to be considered relevant. The ‘right’ result for the practitioner is one that is considered most advantageous for their client, often although not always in economic terms, and not the one that most accords with principles of justice. Although this is but one example it may be somewhat indicative of contemporary legal practice and how it is distanced from wider legal philosophical concerns.
The idea that questions of law can be answered by the law itself without looking to alternative sources is the theory of legal formalism. Margaret Davies describes this in ‘Asking the Law Question’ as the idea that in order to determine legal issues one must recognise that the law is a ‘closed logical system’– ‘insular’ as you aptly chose to describe it. The answer to any question of law can be found simply by referring to the law. From this perspective, the methodology of the subject of law is scientific and this contributes to the modern description of law as a social science. Davies goes on to explain the notion of legal realism which is a reaction to formalism. This is described as the idea that law is not solely the application of endless rules but must also concern itself with the politics and philosophy that result in legal principles.
In my opinion, legal scholars should reject the theory of formalism and take into account other subjects such as philosophy, history, sociology and ethics. Recently I read the case of R (Nicklinson) v Ministry of Justice – a case concerning the right to receive assistance to commit suicide. All nine of the Justices of the Supreme Court made reference to religious and ethical principles such as the sanctity of life and autonomy whilst Lord Sumption referred to the works of Seneca the Roman Stoic philosopher. This case shows that as law concerns all aspects of our lives, from the beginning to the end, it is something more than just a system of rules used to subject individuals to control. In my opinion, law is a literature with a set of principles often expounded by lawyers and justices that have no origin in specific rules but in philosophy, morality and ethics. Whilst the work of the Glossators was vital in finding rules upon which to base the legal system, it was the work of the Post-Glossators that was truly valuable in the sense of exposing the philosophies and politics that are hidden behind the law.