10. What is Justice?

Law in Context

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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 substantive views about 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 But occasionally, where there is a gap in the law or where a current law is clearly out of date with current sentiment, a more substantive view of justice can be used to fill it or change it.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.

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