Ethos of Jurisprudence - The Morality of Justice [Part One]

Temitope, my well-tutored brother from Ijebu-Ode, has been a constant pain in my legal backside of late but I love him so. His simple comment that 'there is no just society' sent me on a rather long academic research trip through philosophy, religion, and jurisprudence. I am still wondering and pondering upon the statement even as I write now. I have heard it several times in the past but have always dismissed it as a cliche. This time, it seemed stuck in my medulla oblonganta and only a shared analysis with others may dislodge it.

My first thought was that if one says that 'there is no just society' then that is tantamount to saying there is no justice. Or is this a personification of society, thus reasoning that since society is largely characterised by injustice much more than scanty justice, then society as an entity is unjust? Somehow, I think the statement runs deeper and calls for a deeper examination.

Everyday, we hear different negative assertions; people are bad, the world is bad, politics is evil, money is evil, society is unjust, etc. Now my question is this, if we say the world is bad, does that mean we have to continue to contribute to making it worse or try our own best to make it good even if not better? If we say money is generally evil, do we now resort to trading by barter alone? If we say the society is unjust, must we then compulsorily let it remain so? Must we deliberately add to the injustice? Must we continue to wallow in sin that grace may abound?

An objective test of validity shows the statement 'there is no just society' to be both true and untrue in equal measure! It depends on how one looks at it and it depends on how one would normally look at other things. In short, it depends on one and one's perspectives!. The word 'just' is a derivative of justice. Justice itself is a subjective term. What is justice to one person may well be injustice to another. Take for instance, a man who catches his wife kissing another man passionately and slaps her. Some will see justice done only if the man were convicted of assault(battery), while to others, any such conviction would be the height of injustice.

Justice is not an absolute term and it has a measurable standard. That standard is dually rooted in moralism and realism.
Those who support the conviction of the irate husband in the example above are likely to be realists while those against are most likely to be moralists. Realists believe that law does not need a moral basis. If the law says 'Do not sneeze' and you sneeze, you ought to be punished. To them it does not matter whether the law is justifiable or not. In fact, legal realists see law as superior to the society and would therefore treat the society as a sort of vassal unto 'sovereign' law. To them law is unquestionable.

Moralists hold a different view. They perenially question the purpose of law. Why is law necessary at all in the first place? Some philosophers say it is to protect man from man. Others go on to say that law is necessary to ensure harmony in the society and thereby aid our right and ability to pursue individual happiness without any unnecessary hindrance and without posing any risk to each other. All agree that law is there to regulate human conduct in relation to one another, deter crime, and penalise misconduct. The state acts as the Law-giver on behalf of the people.

Dele Okenla
22nd May 2011

Morality of Justice [Preamble]

It is not appropriate that law should be enacted without an underlying ethical basis or moral justification. There is a serious risk that any such law, even when valid, would almost invariably amount to tyranny and oppression by the state. An offence should amount to a crime only if and when the property and/or well-being of another is either compromised or put in jeopardy.

Dele Okenla
20th May 2011