In seminars four and five we asked whether law and humanities offers an alternative means of articulating and achieving justice. Ulllman states that the Commentators developed justice into an idea “manifesting itself in all things legal”. He goes on to demonstrate that justice was the central tenet of the medieval theory of law that permeated the practical interpretation and application of law. We can contrast this with the current legal education whereby justice, at least in my experience, is somewhat forgotten. As Ross states, it seems as though in contemporary legal education appeals to justice are seen as having the same force as banging one’s fist on a table! Justice is perhaps seen as a principle advocated by the feeble minded and emotional (Douzinas).
I am in agreement with Sarat when he states that a simple recuperation of the humanities is insufficient. Vecchio defines justice as the requirement that “that shall happen which ought (ethically) to happen. The obvious problem with this is that people will naturally have opposing views as to what should happen. Justice has instrumental value and can be used as a means to justify certain ends. I would certainly question whether a historical humanities approach can achieve justice or whether such an approach then turns law into a tool for the majority.
In contrast, I would argue that the Tamils cases explored by Douzinas show that the current scientific, formalistic approach to law offers a certain type of justice – a commitment to procedure and treating like cases alike. I wonder whether the social sciences is offering jurists an articulation of justice but by a different name: ‘the rule of law’. This principle appears to me to occupy the space once governed by justice – both conceptually and in terms of the value ascribed to it by scholars. Perhaps the reason for the popularity of this term is that the word ‘rule’ is more agreeable to a discipline aspiring to the rationality and neutrality of the sciences.
So what do we think? Do we attempt to articulate justice using the humanities and if so do others share my concerns of doing so? Or do we follow the approach taken by the social sciences to produce a procedural, ‘thin’ type of justice? If so, is this sufficient for us or should we seek greater utility from justice as the medieval jurists did?