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Is Justice Rational? What do you think?

Posted by stnczyk • 7/09/09 • Subscribe to this Discussion [RSS] • Report This Topic
Topics: justice

In my most recent post I invite my readers to ponder the nature of Justice, and I would like to hear to opinion of everyone here at blogcatalog:

I came across this quotation from a leading legal positivist, and I can't help but find it deeply unsettling:

"Justice is an irrational idea. ... [T]hat only one of two orders is 'just' cannot be established by rational cognition. Such cognition can grasp only a positive order ... . This order is positive law... .It presents the law as it is, without defending it by calling is just, or condemning it to call it unjust." Kelsen, General Theory of Law and State 13 (1961).

The trouble is, however, is that is is very close to the mark. If you want to view justice as rational, then you must have a rational accounting of it. But are there not as many accounts of justice as there are people on the earth? What makes one account better than the other? And if none can be said to be objectively better than the other, does this not merely bring us back the cynical positivism? Karl Llewellyn has some interesting thoughts on the matter, on his view:

"Justice [is] not attainable or even describable substance, but a quest, as being an idea conditioned in the first instance by each quester's view of the Universe, and conditioned secondly (as Law-Government must always be) by the fact of scarcity. Whether within an organized group with firm legal-government traditions or within an emerging, half-chaotic world, the justified desires and demands have always exceeded the wherewithal to fulfill them, and they always will." -Karl Llewellyn

I'd like to hear your thoughts on the subject. All comments and perspectives are welcomed!

Please feel free to add your comments to this thread or here: respondeat.wordpress.com/2009/07/09/is-justice-rational-what-do-you-think/

User Comments

7/09/09

nothingprofound

What I think these writers are saying in their convoluted way is that justice is relative to the individual and the society in which that individual lives. No objective definition of justice is possible, since everybody is free to create and espouse their own.

To me, the problem is further complicated by the use of the word "rational." Coming up with a universally acceptable definition of "rational" would probably be just as difficult as defining justice. So you just end up going round and round in the labyrinth of language, with everybody fitfully exclaiming and disagreeing.

[reply]
1. 7/09/09
  
  diabolicomix
  
  Hmm... If justice is relational as your say NP, I wonder if that means it is necessarily subjective as you imply it is?
  
  Haven't you just provided an objective definition in saying that "justice is relative to the individual and the society in which that individual lives."?
2. 7/09/09
  
  stnczyk
  
  A profound point from nothingprofound! How ironic:)
3. 7/09/09
  
  nothingprofound
  
  Actually, that wasn't my definition, but the OP's. But like I said Diabolix-round and round in the labyrinth of language!
4. 7/09/09
  
  diabolicomix
  
  Touche. Makes me dizzy just thinking about it...
7/09/09

trailofpen

Yup, everyone has their own individual views of right and wrong. The victors of a war are never tried for warcrimes, yet they are just as guilty as the defeated. Justice, it's all objective.

[reply]
1. 7/09/09
  
  stnczyk
  
  Interesting point.
  
  I think you may be mistaken that victors are never tried for war crimes, however this is not my area, so I will refrain from further comment.
7/09/09

dcarroll

JC!

[reply]
1. 7/09/09
  
  stnczyk
  
  What does that stand for, dcarroll?
7/09/09

greencurmudgeon

Justice is a myth that holds society together. If we don't believe that the punishment fits the crime, that wrongdoers are punished, then society becomes a free-for-all in which people just grab what they can. Does perfect justice exist? No, there is corruption and mendacity with which to contend. However if we want to build a society where people are not tearing each other to pieces, it is a rational construct to have.

[reply]
1. 7/09/09
  
  stnczyk
  
  Is justice merely a myth?
  
  Consider the myths of Anansi, which contain valuable truths indeed.
  
  Is a myth merely a construct?
  
  It seems that there is more at play here than human artifice.
2. 7/09/09
  
  greencurmudgeon
  
  If you subscribe to Lacanian theory, then all desires are learned; the same goes for the desire for justice. Therefore there is no cosmic force outside of mankind's capacity to conceive of it that creates "justice". It is, as I say, a construct, which prevents mankind from descending into primordial chaos.
3. 7/09/09
  
  diabolicomix
  
  Wait a second, green. I don't even see a framework here. What is your definition of justice?
  
  If we use a typical definition --something like "the way things naturally ought to be" -- then the "primordial chaos" to which you refer is nothing less than justice itself.