In this episode, not daunted by their previous challenge to explain basic legal concepts clearly, the Two Steves take on the big one: What is Justice?
Most lawyers instinctively take a procedural approach to justice. If the rules have been followed and the judge is impartial, then the outcome is “just”. And yet every day we hear people say that a particular result is unjust, even though all the rules have been followed and all the boxes ticked. Their sense of justice is more substantive than procedural.
Many views about substantive justice can be put into one of three categories.
First, justice as equality prioritises results that treat people substantively equally, and perhaps even promote substantive equality.
Second, justice as rights prioritises results that protect and advance people’s rights, including perhaps their “natural” rights. These days, the promotion of “human” rights fits into this category.
Third, justice as deserts prioritises what is owing to people. Punishment should be deserving, neither less nor more. Injuries should be compensated to the extent of those injuries, and so on.
This is straightforward to understand when one critiques law from the outside in, helping us to adopt one or more of these approaches. On an operational basis, however, when a court has to decide a dispute, fair procedure has to rule the day. But occasionally, where there is a gap in the law or where a current law is clearly out of date with current sentiment, a more substantive view of justice can be used to fill it or change it.
To understand law at the margins, as well as at its centre, we need to know about and consciously adopt a substantive sense of what is justice.
TRANSCRIPT
Stephen Parker
So far in this podcast series we have side-stepped an important question: what is justice?
We did have an episode on Access to Justice, which was basically about access to impartial adjudication and perhaps to alternative forms of dispute resolution.
And next time we will finally confront the question: What is Law? But we are trying to build the suspense, and develop our listeners’ understanding layer upon layer.
So far we’ve taken a formalistic or procedural approach: if the law is constitutional, the judge is impartial, the rules of evidence are followed and the jury system works as it should, then the outcome is legally just.
And there are people who say that this kind of formal justice is the best we can aim for. Everything else is simply personal preference.
But almost every day we hear people talk about unjust decisions, even though the rules have been followed. They must be getting at a deeper sense of justice, something that lies behind formal procedures. A substantive idea of justice.
Stephen Parker
So in this episode we’ll have a go at disentangling some of the main ideas about justice, including schools of thought that go back centuries, but we do so from the legal perspective.
Non-legal schools of thought about justice do filter into our thinking about law, as we’ll hear, but form and procedure are our starting point.
Stephen Bottomley
Formal ideas of justice are captured by expressions such as “due process”, and they are very important to the functioning of a society.
There is plenty of research to show that when people know the rules have been applied in a fair way, with both sides having the opportunity to make their case to an impartial adjudicator, they will accept outcomes that they are nevertheless unhappy with.
This suggests that the ideas of justice and fairness are closely tied.
It is symbolised in the iconic statue of Justitia: a blindfolded woman holding a set of scales. The blindfold is meant to symbolise the impartiality of law – the scales can tip either way.
But the blindfold might also suggest that the law doesn’t see inequality.
Stephen Parker
Justitia is actually our podcast logo, but we’ve taken her blindfold off, similar to the equivalent Greek goddess Themis, to indicate our own uncertainty: and we’ve brought her up to date with headphones, in the hope she’s listening.
Stephen Bottomley
Fairness on its own can’t be sufficient, though. Starting a game with a coin toss is regarded as a fair process but there is no particular merit in one side of the coin over the other.
Historically, some legal disputes were decided by equivalent processes – the trial by ordeal is an example – but no one these days would regard that as rational, even though it is formal.
Stephen Parker
So for a formal procedure to be “just”, it does have to be relevant to its context: a coin toss for a game, yes, but rules of evidence and impartial judging for a dispute. This means there is still some substantive idea of relevance behind it; not just procedure for its own sake.
Stephen Bottomley
We can move on from fairness to look at three other overlapping approaches to substantive justice which help to organise some of the major ideas in this area.
The first is justice as equality.
The provision of legal aid is an example. Yes, someone who cannot afford legal representation can stand in court and say their piece, but if they don’t understand the law, are adrift with court procedure and are not articulate, they will be little match for an opponent who can afford a trained lawyer; especially in an adversarial system where the judge is supposed to be passive until the end.
Stephen Parker
The Castle was a funny movie, but that’s all it was. An unequal fight is not usually thought of as a just one.
So concerns to promote access to justice can be seen as stemming from the notion of that equality is at least a component part of justice.
However, the equality movement has motivated feminist and other critical approaches to law, way beyond access to justice questions. It has pushed the common law into changing. It helps explain why the High Court in the case of Mabo managed to find that Australia’s First Nations people may be entitled to particular forms of land rights when in earlier years no court would go that far.
Stephen Bottomley
A second substantive approach to justice is justice as desert. This is sometimes called retributive justice; you should get what you deserve, what is due to you, what you have merited.
In criminal law, for example, sentences should be proportionate to the crime. So, people will complain if they think the sentence was too lenient – the defendant didn’t get what they deserved – or too severe – they didn’t deserve what they got.
A deserts theory underpins contract law, to give another example. If you have given something in return (what the law calls “consideration”), you deserve to have the bargain enforced.
And it underpins the law of torts. If someone has caused you harm by their negligence, you deserve to be compensated.
Stephen Parker
A third substantive approach to justice is justice as entitlement, or justice as rights. A just legal system protects people’s rights, and if it fails to live up to what someone regards as a right, they may say it is unjust.
Although this kind of thinking goes back centuries, in particular to the idea that there are natural rights, it received a major boost in the mid-20th century with the flowering of the idea of human rights. A law that does not protect, or perhaps even promote, human rights, is “unjust” from this perspective.
Stephen Bottomley
Drawing these distinctions between equality, deserts and rights might help us put particular thinkers into their separate piles, but the problem is that it is all attractive in some way. We want fair procedure. We do think that at some level people are equal. We do want deserving outcomes. And rights should be respected.
Stephen Parker
It is easy to look backwards to see how the law has developed in its higgledy-piggledy way – to use a technical legal expression – buffeted by these competing ideas of justice.
But looking forwards, when you have a dispute to decide in the here and now, you couldn’t have a legal system where it is always open slather; where a judge’s own preferred substantive idea of justice is what will win the day. At least, not if you value the rule of law.
In common law systems, you have to treat like cases alike – a procedural notion. And in inquisitorial systems you have to apply to the legal code in a good faith manner.
When faced with an every-day dispute to handle, it is the procedural approach to justice that has to keep us all on the rails.
Stephen Bottomley
Having said this, substantive ideas of justice help us critique the law and advocate for change, for example to parliamentarians.
And in those moments where there are gaps in the law, where an appeal court could go either way, the more substantive theories of justice can guide a decision-maker to an outcome, which nudges the law along.
In the next episode, on What is Law?, we’ll see that the legal philosopher Ronald Dworkin argues that this is how morality becomes part of law.
Stephen Parker
We said earlier that we would stay on the legal end of philosophy, but there is one thinker who offers a mechanism to order our thoughts.
John Rawls wrote a hugely influential book called A Theory of Justice where he asked how you could design a fair society.
If we were all behind “a veil of ignorance”, as he called it, so we didn’t know how we were placed, how lucky we were, how privileged we were and so on, how would we design a just society?
He said that we would go for two principles. First, we would protect basic liberty to the extent compatible with the liberty of others. Second, we would only allow inequalities if they result in compensating benefits for everyone.
Stephen Bottomley
Perhaps, then, we should push for law reform that applies these two principles, promoting basic liberty to the extent compatible with curbing inequality, because behind our imaginary veil of ignorance we cannot know when we will need them.
But on a day to day basis you have to apply established procedures, otherwise you are stepping outside the sphere of law.
Stephen Parker
My personal view is that no universal theory of justice could possibly handle every issue; how wealth should be distributed in society, how to decide reparation after war, whether the descendants of slave owners should compensate the descendants of slaves, and so on.
Courts themselves usually take this view, and only take on cases that are said to be “justiciable”; meaning capable of being tried in a court of law.
Stephen Bottomley
I can go along with that.
Further Reading
Stephen Bottomley and Simon Bronitt, Law in Context, 5th edition, Federation Press, 2024, pp 25-29.
Tom Campbell, Justice, 3rd edition, Bloomsbury Publishing, 2010.
E Allen Lind and Tom Tyler, The Social Psychology of Procedural Justice, Springer New York, 1988.
John Rawls, A Theory of Justice, Belknap Press, 1971.