Is Justice Rational? What do you think?
July 9, 2009
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.
I’d like to hear your thoughts on the subject. All comments and perspectives are welcomed!