Disputes between Law and Justice (original) (raw)

THE CONCEPT OF LAW AND JUSTICE

Prizren Social Science Journal, 2020

From the views and changes that have followed the dynamism of our society, undoubtedly, law and justice have played a crucial role as a very abstract term that has been consumed almost from the first beginnings of human society to our modern days. Beyond the events and circumstances that societies in the past have had and organized by defining and choosing the way of life, and often times the right has been personalized by a certain group of people, or by a military division that has given rights and has created justice, in certain interests and for personal and charismatic purposes it has been denied a certain part of society, and has often been deformed in scandalous ways by reflecting, on the fact that the giver of this right has often been pointed out to be the man, but this convulsion in no case has lasted long, and often this theory has remained unrealized, reflecting that right is something natural and that the individual gains at the moment of birth and enjoys it to death, this divergence and complexity of the way of perceiving the law has often resulted in wars and the acquisition of this vital right. Through this paper we will draw philosophical and legal paradigms, analyzing from a retrospective way of the application of law and the applicability of justice, as an important mechanism of regulation of social relations. Law and justice have a common path of development, one by regulating the way of life of the people, that is, by issuing norms and the other by giving justice to the relative complexity and cohesion of interpersonal relations.

The Concept of Law and Its Conceptions

Ratio Juris, 2006

In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking.

THE MEANING OF »LAW« IN COMPARING LAWS, OR THE COMPLEXITY OF WHAT THE OBJECT OF LEGAL COMPARISON IS

2014

Comparative jurisprudence as an extension of the scholarly cultivation of domestic laws, closed down within its respective national boundaries, is historically rooted in the realisation of how much the self-closing of continental laws, based upon their national codification throughout the 19th century, emptied their scholarly approach as well. In the pioneering age of comparison, the turn of the centuries, legal ideology was still marked by the predominance of statutory positivism, so the law’s comparative treatment—as a first step—could not target but its statutory form. Albeit there have been mentions by the classics of legal comparativism, emphasising the significance of the law’s sociological entourage and cultural embeddedness as well, neither the direction nor the methodology of research has changed to a transformative depth since. Albeit nothing is given as ready-made: our life is an uninterrupted sequence of materialisations from among an infinite range of potentialities. In events when a decision is made, it is something selected that gets actualised. Every moment contributing to a decision in law is ambivalent in itself: nothing is compelling by its mere existence. Therefore we have to know in advance what the law is, what we can do with it and exactly what we can achieve through the store of its instruments in a given culture so that we can successfully proceed on with it and within it. Or, there is necessarily a given auditoire faced with a real situation of life and, acting with this auditoire, the well-defined contextuality of a stage (together with the given social, ethical, economic and political implications in play) that form the framework within which the judicial establishment of facts and interpretation of norms can take place at all. That what is identifiable of law when no implementation or judicial actualisation is priorly made is a dynamei [potentiality to get actualised] at the most, which can exclusively become anything more through an instrumental operation by legal technique. Accordingly, law is made up of (1) a homogenised formal concentrate (2) operated—through its being referred to—by a practical action, the result of which will posteriorly be presented to the external world as law converted into reality. One may conclude therefrom that all that can be rationally and logically justified within the law is mostly also made available in the law. For in cases when socially weighty considerations prevail, society is in the position to mobilise the means of rational justification at an adequately high level of logical standards (passing from principles and rules via exceptions to exceptions thereto, and so on) so that the necessary and feasible effect can be reached. The formal logical claim for norms being made deducible from norms is not a readily given availability but a normative requirement, setting down the internal rule of legal games as canonised by the prevailing judicial ideology. However, games can only be played in given situations, micro- and macro-sociological as well, in defining meanings within which also the judge takes part with his entire personality. Consequently, subtle shifts of emphasis in the definition of meaning, perhaps indiscernible in themselves, may add up to turns of direction in the long run of the process. Therefrom it seems as if the human wish for homogenisation and unambiguity went hand in hand with both the incessantly renewed attempts at reaching this in practice and their necessary stumbling in new heterogeneities and ambiguities, generating a continuous tension between a strain in theory and attempts at finally resolving this in practice. It seems as if hyperbolic curves were indeed at stake: when fighting for definite aims, we also necessarily move somewhat away from them with detours made. The sphere of action of the judge is certainly limited, and the means by what and the ways how it is limited are also ambivalent. For the only path available for us to proceed on is to build artificial human constructs of mediation and filter them through a homogenising medium by applying its rules to the former. However, when they are made use of, we cannot entirely separate these constructions from their necessarily heterogeneous environments, and, therefore, in each moment of their operation, a definition by real situations of life will also be inevitably present. Sure, behind all considerations concerning the simultaneity of applicative and creative effects of law-applying processes, there is a stimulating strain that prevails between living language(-use) and the blind (and in itself empty) logicism of a system homogenised through a formalising filter. And the significance of legal technique and the inevitably magic transformation effectuated in any legal process may become comprehensible only in the moment when we realise that law is not simply made up of rules, as in themselves they are nothing but mere symbols of logical abstractions. For anyone wishing to reasonably communicate with others cannot but use categories already interpreted in communication with others. Thanks to its reserves, language offers paths and ways of how to proceed, although, if examined more closely, these are extremely uncertain signals, full of ambivalence themselves. This is a circumstance that is, of course, not especially striking in everyday usage, that is, speaking in terms of pure logic, after the gaps left by such signals are completely filled in through our everyday conventions and conventionalisations. Law conceived as a rule in the ontological reconstruction of linguistic mediation is just a medium being incessantly formed through a series of interactions, and legal technique serves as just a bridge helping the lawyer to reach a concrete and definite legal conclusion. Regarding the very logic of law, it is quite symptomatic that while the dominance of formal inference makes its way uncompromisingly, in any case it will turn out that all this may remain valid only for routine cases of the average. For as soon as feasibility to follow the routine of conceptual categorisation becomes questioned in a borderline case (classifiable or not into a given category), logic, too, becomes at once irrelevant, as it has no message whatsoever specific to borderlines that may transcend the bounds of everyday routine in practice. What is striking here is that the special parts of the codes usually call for a relentlessly logical application of the regulation broken down systematically from principles to rules and rules to exceptions—to the exclusion of only one single case, namely, when the issue of the applicability of such a general clause or principle emerges, from somewhere in the general part of the code (classically, the actor or his/her deed being dangerous to society, in criminal law, or abuse of the law, in private law). Then, all the stuff of the strict and minutely detailed regulation offered by the entire special part of the code at once becomes non-applicable as irrelevant, with the questioned case left to be judged in almost a legal vacuum, with the sole reference to one or another general principle laconically drafted in the general part. Legal technique is an almost omnipotent instrument, usable in any direction in view of achieving practically anything in principle. We may use it, however, only within the womb of one or another legal culture that delineates also the framework of tacit conventions actually limiting from what and to what we can conclude at all. We live in the same culture, with both vague clauses guiding us to nothing in any concrete situation and rules calling for strict application. And if, in the name of a law, either dysfunctionality, due to the law’s blind enforcement, or, despite the law’s formal assertion, practical negation, will arise, the reason is not necessarily to be sought for in the given technical procedure. For it is known to all of us that practical life, with the entire network of subsystems within it, is operated by the same human involvement and social activity, after all. In case political considerations would unduly overwhelm the law’s operation, they can just as well utilise any instrument they have access to, in order to subject the law to them. Accordingly, from the very beginning, comparison of laws, targeting laws proper, that is, ones enacted, shall be widened so far as to comprehend their practical implementation, as either officially enforced or at least tacitly acknowledged as the realisation thereof. And in order to understand the ways and manners of implementation, including both the handling of what will be established as facts and the canons of interpretation of what will be referred to as norms, comparison has to target and involve the patterns of judicial thought (argumentation and reasoning, i.e., lawyerly ideology as a specific species of professional deontology) as well. KEYWORDS: comparative law / comparison of legal cultures; law in books/action; legal policy, legal technique; formalism/anti-formalism in law; law as potentiality/actuality; constitutional adjudication, legal imaginability; linguistic mediation; legal dogmatics; principles/clauses

Chapter 1 - The Concept of Law

Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021

This chapter addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, and by shifting its scrutiny towards the Western legal experience, it seeks to underscore the problematic nature of characterizing law as a universal concept. On the contrary, we intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine works dealing with "legal pluralism" and "legalism" to identify the reasons why the term 'law', its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a 'legalistic way of thinking' about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with 'Islamic law' and law in Muslim contexts to try to see what law can be at the margin, at what Herbert Hart nicely called its fringe of penumbra, but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar. We thus pave the way for a later examination of the historical ontology of the concept of law and for the ethnography of its practices. Uses and Abuses of the Concept of Law Let us start with concepts of law presented as alternatives to positivism. From the critique of several collections, we will review the notions of 'folk law', 'legal pluralism', and 'legalism', with the aim of tackling the conceptual issues they raise and the analytical dilution resulting from them. It will allow us to stress the contingency of the concept of law and the stalemate into which its extensive meanings lead us. Folk Law and Legal Pluralism Folk Law: Essays in the Theory and Practice of Lex Non Scripta is a kind of manifesto of the current of folk law and legal pluralism (Dundes Renteln & Dundes, 1994). It is emblematic of the stalemate into which the search for a universal concept of law leads us. While recognizing, as Gluckman does, that the term 'law' and its derivatives have various meanings (Gluckman, 1965: 227), most contributions are based on an implicit concept that allows us to describe the many historical and geographical experiences as instances of the same concept. In the same way, many contributions make the correct observation that the study of the constitutive elements of so-called 'primitive law' starts from the characteristic features of modern law and doctrine (Josselin de Jong, 1994: 111); or that the idea that the 'Common Law' is a set of rules constituting a system is closely associated with legal positivism and derives from the concept of any law in terms of the model of legislated law (Simpson, 1994: 122); or that the concept of law held by an English lawyer today is largely influenced by Austinian theory and its later positivist versions, like Kelsen's or Hart's, all of them tending to think of law as a system of rules emanating from a focal point at the top of a pyramidal structure (Hag Ali, 1994: 36). However, they do not draw the conclusions of this assessment, that is, that the very idea of a 'law' characterized as primitive, customary,

Two Concepts of the Rule of Law

Zbornik Znanstvenih Razprav, 2019

The rule of law is today one of the leading notions in international relations and an ob-ject of intense public debate in many countries. As a legal and political ideal, it is invoked to argue for greater recognition of law and legal institutions in modern society. This is happening even if there is no generally accepted understanding of what it actually is in either political or legal terms, and its meaning can differ considerably depending on the social and geographical environment. To facilitate the contemporary rule of law debate, this article proposes a primary distinction between what might be termed classical and institutional interpretations of this concept. It is suggested that under the classical view, the rule of law is understood as a constitutional principle, broadly expressing liberal doctrines on the proper relationship between law, the individual and the modern consti-tutional state. In the last few decades, however, we have also witnessed, especially in the internat...

JUSTICE AS THE END VALUE OF LAW

There has always been a great debate on what role law should fulfill in every society –while believers of the Natural Law on the one hand, insist that every law must appeal to good conscience in order to be recognizable, the Marxists are of the view that law is nothing but an instrument of oppression in the hands of the sovereign. The bottom-line of these arguments is that of a deep-seated yearn for justice. For instance, believers of the Marxist School of thought would have been more at peace if they have seen law as going to the greater extent of achieving and guaranteeing certain freedoms. While this is important, it is acutely imperative to draw out a benchmark –justice. Therefore using justice as the index of every law, has law served any purpose, at all, for every Tom, Dick and Harry of every society? This research sets out on a particular mission: that of first, understanding what law actually is, then attaching to it the value of justice in order to create out a phenomenon, and then proceeding to critically examine, compare and analyze the laws of some select societies (both indigenous and modern) using the index of justice as a guide. In the end, it is the hope of this researcher that, notwithstanding the variety in the laws that have existed and still exist during the different evolutionary stages of human societies, the common, universal language which they all reflect –that of justice – has been deduced.

Legal Theory and the Rule of Law

In "Legal Theory and the Rule of Law" Noel Reynolds maintains that the rule of law can be understood as a set of conditions that rational actors would impose on any authority they would create to act in their stead in creating and administering legally binding rules. The authority and obligation associated with law derive from this fundamental convention, and the principles of the rule of law are the conditions of that agreement, which become thereby governing principles to which legislatures, judges, and enforcement agencies can be held in their official actions. These generally recognized standards are inherent in this conventionalist concept of law in the sense that natural lawyers have wanted, but they arise from a social fact, not a background moral or political theory, thus bridging the persistent chasm that divides positivist and natural law theorists.