SUBJECT: JURISPRUDENCE II

P R O J E C T TO P I C :
LAW AS ORDER AND JUSTICE

Submitted By
RICHA JOSHI
Roll no. 1225
rd th
3 Year , 6 Semester, B.B.A.LL.B(Hons.)

Submitted to
Dr. Manoranjan Kumar
Faculty of Jurisprudence II

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

MAY, 2016
 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide
Dr. Manoranjan Kumar for his exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The blessing, help and guidance
given by him time to time shall carry me a long way in the journey of life on which I am
about to embark.
I also take this opportunity to express a deep sense of gratitude to my seniors, the library
staff and my friends for their valuable information and guidance, which helped me in
completing this task through various stages.
I would also thank my institution and my faculty members without whom this project
would have been a distant reality. I also extend my heartfelt thanks to my family and well
wishers.

-RICHA JOSHI

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 RESEARCH METHODOLOGY

AIMS AND OBJECTIVE

The aims and objective of the research project is to understand the concept of Law as Order and
Justice. It even tries to elucidate on the work of various legal systems across the world in
providing for law and order for their societies.

HYPOTHESIS
The researcher has assumed that for any legal system to function law takes the role of both order
as well as justice.

METHODOLOGY
The research methodology for the project work is doctrinal i.e., library based. The researcher has
employed doctrinal research as it deals with what the law is on a particular issue. It is concerned
with analysis of the legal doctrine and how it has been developed and applied.

SOURCES OF DATA
For the purpose of project the student has relied on secondary sources to hunt for information
relating to the topic. Secondary sources include textbooks, encyclopaedias, dictionaries, law
reviews, etc.

STYLE OF WRITING

The researcher has adopted a descriptive and analytical style of writing for the purposes of this
research paper.

MODE OF CITATION
A uniform mode of citation has been followed throughout the course of this project.

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 CONTENTS

RESEARCH METHODOLOGY ............................................................................................. 3

1. Introduction ...................................................................................................................... 5

2. LAW ................................................................................................................................. 6

3. ORDER .......................................................................................................................... 13

LAW AS ORDER ............................................................................................................... 14

4. JUSTICE ........................................................................................................................ 16

JUSTICE AND CONTEMPORARY PHILOSOPHERS ................................................... 17

LAW AND JUSTICE ......................................................................................................... 19

COMPARISON OF LEGAL SYSTEMS ........................................................................... 19

5. CONCLUSION .............................................................................................................. 22

6. BIBLIOGRAPHY .......................................................................................................... 23

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 1. INTRODUCTION

The most basic question that every individual in the legal profession is interested in is what law
is on a particular issue. This is always a local question and answers to it are bound to differ
according to the specific jurisdiction in which they are asked. In contrast, philosophy of law is
interested in the general question: What is Law? This general question about the nature of law
presupposes that law is a unique social-political phenomenon, with more or less universal
characteristics that can be discerned through philosophical analysis. General jurisprudence, as
this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes
that law possesses certain features by its very nature whenever and wherever it happens to exist.
However, even if there are such universal characteristics of law the reasons for a philosophical
interest in elucidating them remain to be explained. First, there is the sheer intellectual interest in
understanding such a complex social phenomenon which is, after all, one of the most intricate
aspects of human culture.
Law, however, is also a normative social practice: it purports to guide human behavior, giving
rise to reasons for action. These two sources of interest in the nature of law are closely linked.
Law is not the only normative domain in our culture; morality, religion, social conventions,
etiquette, and so on, also guide human conduct in many ways which are similar to law.
Therefore, part of what is involved in the understanding of the nature of law consists in an
explanation of how law differs from these similar normative domains, how it interacts with them,
and whether its intelligibility depends on other normative orders, like morality or social
conventions.
Law ideally grows from social norms that create order. Consensus obligations are an important
type of social norms. People who say that they ought to do one thing may be punished for doing
something else. Contemporary legal theories define these two main interests in the nature of law
in the following terms. First, we need to understand the general conditions that would render any
putative norm legally valid. Second, there is the interest in the normative aspect of law. Two
important features of Law are are Order and Justice. While Order is an aggregate or a plurality of
general and individual norms of law that govern human behavior definition of law itself reflects
that Administration of Justice has to be done by the state on the basis of rules and principles
recognized.
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 2. LAW

One of the most uncertain and unsettled discourse about law is the definition of law itself. This
fact is captured aptly by the caveat of Iavolenus, Omnis definitio in jure civili periculosa est
meaning thereby that All definitions in law are precarious. To define is to state with an
acceptable degree of precision the sets of properties possessed by the phenomenon which is to be
defined, i.e., to determine essential qualities or characteristics1. This is however, something of an
elevated impossibility when it comes to what exactly law is. As a consequence what is merely
available in the body of legal literature is the definition of the word or concept law by various
philosophers and jurists whose perception of what law is, is greatly influenced by their
philosophical background or school of thought. Therefore, in order to come to shore with what
law is, the various definitions of law by different philosophers would be explored.

1. NATURAL LAW SCHOOL

Nature intends man to behave in certain ways and to do certain things and the consequence of
this is that nature does not intend man, or to be more accurate, nature forbids man to do certain
things or behave in certain ways2.This idea that nature intends man to do certain things or to
behave in certain ways and on the other hand, to refrain from doing certain things is the origin of
the idea of the Law of Nature3. The term law of nature is both prescriptive and descriptive in
meaning. In its prescriptive meaning, the law of nature is a universal precept or command
intended by nature to regulate human behavior. It is the universal law which enjoins all human
beings to do good and refrain from evil. The law of nature in this sense is synonymous to what
Immanuel Kant termed as Moral Law for in its prescriptive sense, the law of nature is a moral
law, the basic moral law, and it applies only to human beings. The law of nature in its descriptive
sense, is simply a formulation of the regularity with which certain things happen uniformly all
over the world under certain conditions, e.g. the law of gravity, the law of relativity, etc.

1 L.B. Curzon, Jurisprudence-Lecture Notes, Cavendish Publishing Ltd, 2nd ed., chapter 1, page 1.
2 Shellens, Aristotle on Natural Law.
3 John Finnis, Fundamentals of Ethics 80108 (1983).
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However, we are more concerned with the law of nature in its prescriptive sense and what it
meant to various philosophers of this school of thought, natural law.

2. HISTORICAL SCHOOL

Savigny, a German aristocrat, who played a prominent role in developing this theory believes,
and according to this theory, that law should be a formal restatement of the customs prevalent in
the society. This is because customs usually evolve over time through informal enforcement
processes until they become part of everyday life or folkways4. It is therefore difficult to change
the customs of the society except the generality of the people are in tune with the change. This
theory recognizes what is called the spirit of the people, volkgeist, which binds the people and
distinguishes them from any other people. In addition, this theory favours the evolution of law
over a period of time as opposed to the concept of fairness, goodness and justice, etc., as
espoused by the natural law school, which can lead to revolution.

3. THE COMMAND SCHOOL

A) Jeremy Bentham (1748-1832)

The Command school is a sub-school of Legal Positivism5.The father of legal positivism whose
master was William Blackstone, an exponent and advocate of natural law doctrine, was Jeremy
Bentham. To him, law is essentially a command issued by a sovereign to his subordinates or by a
superior to his inferiors, who owe him allegiance6. He says A law may be defined as an
assemblage of signs declarative of a volition conceived or adopted by the sovereign in a State,
concerning the conduct to be observed in a certain case by a certain person or class of persons,
who in the case in question are or are supposed to be subject to his power; such volition trusting
for its accomplishment to the expectation of certain events which it is intended such declaration
should, upon occasion, be a means of bringing to pass, and the prospect of which it is intended
should act as a motive upon those whose conduct is in question7. When Bentham made

4 ABIOLA S ANNI, INTRODUCTION TO N IGERIAN LEGAL METHOD, page 18.

5 Legal Positivism, a school of legal philosophy, is the strongest objection to the natural law doctrine and it denies
the existence or reality of the natural law and claims to be able to fully explain law (both in theory and in practice)
without any reference to the natural law. The word law means for this school, only the positive law and nothing
more.
6 J OSEPH OMOREGBE , AN INTRODUCTION TO P HILOSOPHICAL J URISPRUDENCE , page 129.
7 Ibid.
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reference to sovereign he meant any person or assemblage of persons to whose will a
whole political community owes loyalty and obedience. He saw law as essentially the command
of a sovereign, backed by sanction to act as coercive or alluring motives for compliance.
Benthams command theory was propagated by his disciple, John Austin.

B) John Austin (1790-1859)

Austin also conceives law essentially in terms of command backed by sanction, like Bentham his
master. Law, for Austin is the command of a sovereign enforced by sanction and the purpose of
sanction is to enforce obedience by the threat of evil consequences for disobedience8. Austin also
conceives sovereignty in a Hobbesian way as one who is obeyed by all while he owes obedience
to no one. The command of a sovereign is law and since law is essentially the command of a
sovereign, it follows that only positive law can be law. As a result, natural law, international law,
customary law and constitutional law are not commands of a sovereign, and so they are not,
according to Austins definition of law, laws in the proper sense of the word. Austin in saying
that law is essentially a command backed by sanction or the threat of punishment implies that
anybody who is able to issue a command and is able to back it up with force or the threat of
punishment has, ipso facto, made a law. Thus, even the command of an armed robber is law
according to this theory each time an armed robber gives a command at gun point, for his
command is law9.It has also been stated elsewhere that not every command is a source of law10.

4. THE NORMATIVE SCHOOL

A) Hans Kelsen (1881-1973)

Kelsen is of the view that legal studies should be freed or purified from all extra-legal
considerations (such as political, moral, psychological and metaphysical considerations) which
are not part of law and he aims at an objective science of law devoid of subjective and moral
elements, of approval or disapproval, justice or injustice11. Kelsens pure theory of law is only
concerned with positive law but he does not go along with Bentham and Austin in making
sanction an essential part of the concept of law for he maintains that sanction is itself stipulated

8 Ibid.
9 J OSEPH OMOREGBE , AN INTRODUCTION TO P HILOSOPHICAL J URISPRUDENCE , page VI.
10 Professor Akin Oyebode, Law and Nation-Building in Nigeria: selected essays, page 2.
11 Ibid.
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by law, which means that law is prior to sanction and can be separated from it. In other words, it
is something attached to the violation of law and is stipulated by law itself. In his words, law is
the primary norm which stipulates the sanction12. Kelsen sees law primarily in terms of norm,
not in terms of command like Bentham and Austin. In other words, law is a system of norms13.
By norm, what is meant is that something ought to be or ought to happen, especially that a
human being ought to behave in a specific way. In his words, norm is that meaning of an act by
which a certain behavior is commanded, permitted or authorized. He also distinguishes between
a moral norm and a legal norm and says that while a moral norm does not stipulate sanction, a
legal norm does stipulate sanction. He further said that a law is valid if it has been created by a
norm, which itself has been created by a higher norm within the legal order. The logical
connection of norms in this order will continue until we arrive at a non-law created entity which
is called the grund norm. He said that law is essentially a system of norms (or rules) in which one
norm derives from another and is justified by it. Thus the legal validity of one law derives from
another law within the same legal system. The entire legal system derives its validity from the
grund norm. This grund norm is outside the legal system itself, and it is the foundation of the
entire system. Thus, to account for the validity of a positive legal system Kelsen felt obliged to
go beyond the empirical realm into the metaphysical realm. He realized that the foundation and
ultimate justification of a legal system cannot be within the system itself and one has to go
beyond it14.

B) H.L.A. Hart
H.L.A. Hart Hart criticizes the command theory of law on the ground that it does not account for
all kinds of law, for not all laws are commands. He pointed further that there is no essential
difference between law as it is presented by the early legal positivists, Bentham and Austin, and
the threat of a gunman since both are commands backed by threats of evil consequences in case
of failure to comply. In his words, the only difference is that in the case of a legal system, the
gunman says it to a large number of people who are accustomed to the racket and habitually
surrenders to it15.

12 See Hans Kelsen, General Theory of Law and State, Harvard University Press, 1945, page 61.
13 ABIOLA S ANNI, INTRODUCTION TO N IGERIAN LEGAL METHOD, page 13.
14 J OSEPH OMOREGBE , AN INTRODUCTION TO P HILOSOPHICAL J URISPRUDENCE , page VI.
15 See Positivism and the Separation of Law from Morals, Harvard Law Review, vol. 71, No. 4, page 138.
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For Hart, law is essentially a system of rules, and a legal system is the union of primary and
secondary rules. Social rules grow out of habit while legal rules in turn grow out of social rules.
The process is described as there being first a social habit which is uniformity in behavior among
a social group (1st stage) and at this stage each member of the group simply behaves in
accordance with the habit in a rather unreflecting manner, without thinking that everybody in the
social group ought to behave that way. Failure to conform to the habit, at this stage, attracts no
criticism from the members of the social group. Gradually, the habit develops into a social rule
(2nd stage). This happens when the habit comes to be considered as a standard of behavior to
which all members of the group ought to conform, and failure to conform to it on the part of any
member of the group attracts criticism. At this stage there is a critical reflective attitude to certain
patterns of behavior as a common standard and this is accompanied by demands for conformity
which then expresses itself in criticism whenever any member of the group fails to conform.
Social rules then become legal rules when they become part of a legal system, and the group
passes from pre-legal society to legal society (3rd stage). It is at this stage that Hart believes one
has law in the proper sense of the word and a legal system is then the union of two kinds of rules,
to wit, primary rules (under these rules, human beings are required to do or abstain from certain
actions, whether they wish to or not; duties are imposed) and secondary rules (under these rules;
human beings may by doing or saying certain things introduce new rules of primary type or
determine their incidence or control their operations)16.

B) AMERICAN AND SCANDINAVIAN REALISM

Legal realism is a sub-school within legal positivism. This school takes a realist view of law and
insists on demythologizing or de-mystifying law17. The proponents of this school see law for
what it really is in terms of its practical function in society, for law is not an abstract entity in the
Platonic world of ideas. In a few words, this school believes in being realistic for there is nothing
mystical about law and should therefore not be shrouded in mystery. This school of thought is of
two types, to wit, American legal realism and Scandinavian legal realism due to the fact that this
school is particularly influential in America and Sweden respectively.

16 Ibid at pg. 140.

17 Ibid at pg. 128.
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The founder and typical representative of American legal realism is Oliver Wendell Holmes
who was a judge of the Supreme Court of America and he disapproved of the confusion between
law and morality in jurisprudence for he believed this confusion obscures ones understanding of
law. In other to understand law, he insists on their separation. He thinks the best way to view law
is from the standpoint of an immoral man who cares only for the consequences which such
knowledge enables him to predict; which ultimately led him to see law only in terms of sanction.
Law to Holmes is essentially a systematized prediction, that is, a prediction as to what will
happen (in terms of punishment) to a person if he performs certain actions or does certain things.
In his bid to separate law from morality, he eliminates the notion of obligation from the concept
of law which then becomes nothing other than a system of prediction or prophecy as to what will
happen to a person if he does or fails to do certain things. To Holmes, there is nothing like
natural law, nor can there be any room for the concept of natural justice in his theory, for law in
his theory does not impose any obligation on man.
The typical representative of the Scandinavian legal realist school is Karl Olivecrona who sees
law not as a command coming from a sovereign (as Bentham and Austin see it) but as a system
of imperatives which stand on their own. He believed that law had a powerful grip on the minds
of people that it becomes a reality in their minds, for it is this psychological effect it has on the
minds of people that constitute the essence of law rather than the process by which it is passed or
the authority from which it emanates. Thus, Olivecrona keeps the Sovereign at the background
and sees law as essentially a psychological phenomenon. He also sees law in terms of cause and
effect, that is, the effect it has in the minds of the people once they internalize it after which it is
retained in their minds. At the beginning, sanction may be necessary to enforce compliance with
the new law, but as time goes on the idea of the action comes to stay (internalized) in the minds
of the people, marked by its prohibition; and it then comes to be seen by the people as a
prohibited (forbidden) action. At this stage sanction will no longer be necessary since the imprint
of prohibition now accompanies the idea of the action each time it appears in the minds of the
people. He further contends that this is the origin of the sense of morality, that is, that morality
originates from law or, in other words, it is the internalization of law that leads to the sense of
morality.

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 A) Plato (427-347)
Plato was one of the founders of the Philosophy of Law as well as the natural law
philosophy. He saw law as an expression of reason, and the ideal law as the law of
Reason18. For Plato, laws are necessary only when reason fails, for the law of reason is
the ideal law; and thus he is the originator of the natural law tradition which identifies
law of nature as a law of reason. To him, Positive laws are only expressions of the law of
reason, they are needed only because men are weak and cannot observe the law of reason
without the help of positive laws. So in an ideal situation where men are perfectly rational
and willingly submit to the rule of the law of reason, positive laws would be unnecessary.
In addition, he believes that the law of nature, which is the law of reason, is the absolute
norm of conduct and the absolute standard of justice which positive laws imperfectly
reflect.

B) Aristotle (384-322 B.C.)

Aristotle sees reason as the ideal law of human conduct .He believes that a virtuous man is a man
who is always guided by the rule of reason, which is the right rule19.He also distinguishes
between natural, legal or conventional justice. Whereas natural justice applies everywhere with
the same force, legal justice depends on the law or convention of the place in which it is being
applied. He believes that man is a rational being, hence, the law of nature as it applies to man is
the law of reason or the rule of reason. Aristotle, the biologist, obviously derived the
teleological view of nature from biology.

C) St. Thomas Aquinas (1224-1274)

Like Aristotle, Aquinas sees nature as teleological. Everything in it is basically oriented towards
certain ends to which it naturally tends. He distinguishes between four kinds of law, namely, the
eternal law, natural law, divine positive law and human positive law. He defines law as An
ordinance of reason, directed towards the common good, and promulgated by the one who has
the care of the community20.

18 Ibid.
19 F. Copleston, A History of Philosophy, London, Doubleday, vol 3, part II, 1963, p.203.
20 R HOOKER , T HE LAWS OF E CCLESIASTICAL P OLITY, 12.
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 3. ORDER
According to Kelsen, Order is an aggregate or a plurality of general and individual norms that
govern human behavior, that prescribe, in other words, how one ought to behave. That behavior
is prescribed in a norm or, what amounts to the same thing, is the content of a norm means that
one ought to behave in a certain way. The concept of the norm and the concept of the "ought"
coincide. To prescribe in a norm how one ought to behave is understood here not only as a
command but also as a positive permission or an authorization. A plurality of norms is an order if
the norms constitute a unity, and they constitute a unity if they have the same basis of validity. If
the law is positive law, the norms of a legal order are "posited" or "created" through human acts.
To say that a norm prescribing how one ought to behave is "posited" or "created" through an act
is a metaphorical way of saying that the norm is the subjective meaning of the act. Acts through
which the norms of a legal order are posited or created comprise legislative acts, acts constituting
legally binding custom torn, judicial acts, administrative acts, and private law transactions, in
particular contracts. These acts are characterized here as legal acts, and the individuals
authorized by the legal order to perform such acts are characterized as legal officials.
There has not been a lot of discussion about the meaning of an order but only of its essential
qualities and characteristics.
It is said that true order supposes cohesion, yet not a cohesion obtains by the presence of exterior
causes, but an intimate and spontaneous cohesion which you with all your restrictions inevitably
inhabit. In other words, the attainment of order by man in the society is not attributed to exterior
causes like laws or rules, but to the fact that such order arises from ones innermost self as a result
of something unavoidable.
In his Theory of Legal Science, Huntington Cairns is yet more explicit and detailed on the point
of order:
Order is omnipresent, so far as appears to us, in nature and human thought, order is a necessary
is a necessary condition of human social life, and it is impossible to imagine a society in which
order of some sort does not exist. Law is primarily a system of order, a system of purposefully

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controlled human conduct. The rules of law which obtain in any society operate to establish a
system of order in that society21.
Order can also be described as a place for everything, and everything in its place. Other existing
descriptions of what Order is have a much more inclination towards nature. Like Alexander Pope
said that Order is heavens first law. However, our concern is not on order according to nature
but according to laws which are devised by man for man. So according to law, order can be
described as given under.

LAW AS ORDER

In everyday life, the sequence of people's political desires is well defined. First of all, people
desire order. Without order, life is chaotic and people die. Next comes law, so people can predict
what will happen. Law is not necessarily just. The key is that it provides enough predictability
for people to survive22. It has been said that the classical function of government is to maintain
law and order, protect lives and properties within its territory and ward off external aggression;
and this could be described as the foremost justification for modern government23.The act of
protecting lives and properties and also warding external aggression are also forms of
maintaining order for where there is habitual loss of lives and properties and foreign invasion, it
would inevitably lead to anarchy and chaos which is the opposite of order. Order in most modern
societies cannot be attained except through law. When there is order in a country it results in
favourable situations such as economic growth and development, for foreign investors would
avoid investing in a country where there is constant political and social unrest as this endangers
their investments, mostly in the form of assets, in various ways.
According to Edmund Burke, Good order is the foundation of all good things24. According to
Professor Akin Oyebode, law is a technique for social ordering, and in borrowing the words of
William Twining, law is doing things with rules25. This ultimately implies that in order to
condition peoples behavior or attain order in the society, the most guaranteed way is to do this
through the instrumentality of the law. For since law is imperative in nature and imposes on the
individual irrespective of whether that individual is happy with the law or not, he or she is

21 Cairns, Theory of Legal Science, pp. 14, 15, 55, 135.

22 Supra at 13.
23 DR. ABIOLA S ANNI, INTRODUCTION TO N IGERIAN LEGAL METHOD, pg. 31.
24 Reflections on the Revolution in France.
25 AKIN OYEBODE, LAW AND N ATION -B UILDING IN N IGERIA, chapter 1, page 2.
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nevertheless obliged to behave or act in that prescribed way (modus operandi) for law even
instills order in the way people live (modus vivendi).
State law builds upon pre-existing social norms -- hence the phrase, law from order. The social
order determines the best law to make. Most business practices would not benefit from state
enforcement, because of the latters rigidity and high transaction costs. Consequently, the state
should not enforce many social norms, such as the promise to be home by dinner time. For other
norms, however, state enforcement increases the ability of parties to cooperate, such as the
promise to deliver coal to a steel mill. The state should raise such norms to the level of law and
enforce them.
Man is essentially social being. If social intercourse is a requirement of mans nature, order of
some kind is a necessary condition of social intercourse. It is evident that laws take their place
among the rules of conduct which ensure social order and intercourse26.

26 Paul Vinogradoff, Common Sense in Law (New York Henry Holt, 1914), pp. 12-13.
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 4. JUSTICE

The concept of justice is based upon and is equated with moral rightness, rationality, law, natural
law, fairness, righteousness, equality, goodness, and equity.
What constitutes justice vary from society to society, person to person, from time to time and
from place to place. It has thus been subject to various philosophical, legal,
and theological reflections and debate.
Justice is depicted as equipped with three symbols: a sword symbolizing the court's coercive
power; a human scale weighing competing claims in each hand; and a blindfold indicating
impartiality27. Justice is an accepted limitation on the arbitrary rights of a ruler; Injustice means
that a ruler `has the right to swing his fist' anywhere; Justice means that the ruler's right to swing
his fist `stops at the end of the subject's nose'28.As the concept of justice means different things to
different people, there are variations of justice.
Utilitarianism: which is a form of consequentialism, where punishment is forward-looking
justified by the ability to achieve future social benefits resulting in crime reduction. The moral
worth of an action is determined by its outcome.
Retributive justice: which basically regulates proportionate response to crime proven by lawful
evidence, so that punishment is justly imposed and considered as morally correct and fully
deserved.
Law of retaliation: a military theory of retributive justice, which says that reciprocity should be
equal to the wrong suffered; "life for life, wound for wound, stripe for stripe29."
Restorative justice: which is with making the victim whole and reintegrating the offender into
society. This approach frequently brings an offender and a victim together, so that the offender
can better understand the effect his/her offence had on the victim.
Distributive justice: which is directed at the proper allocation of things wealth, power,
reward, respect among different people.
Corrective justice: corrective justice seeks to reinstate equality when this is disturbed. This
comes into play when a norm of distributive justice has been breached or infringed by a member
of a community. In such a situation, it becomes necessary to make amends for a wrong or

27 LUBAN, LAWS B LINDFOLD, 23.

28 Clayton M. Christensen and Michael E. Raynor,The innovators Solution: Creating and Sustaining Successful
Growth, 2003, Harvard Business School Press, pg. 144.
29 Exodus 21, verses 23 25.
16
deprive a party of an unjustified gain. This type of justice is generally administered by the court
or other organ invested with judicial or quasi-judicial power. Its major areas of application are
contracts, torts, and crimes.
Ancient Indians, Greeks and Romans view of justice includes the whole of morality. They
viewed justice as an ideal standard derived from God or based on Dharma (Indians)
Justice signifies a cluster of ideals and principles for common good and welfare without the least
hope or opportunity of injustice, inequality or discrimination.
It is the notion of justice which directs our attention to the fairness and reasonableness of the
rules, principles, and standards that are the ingredients of the normative structure.
Injustice on the other hand according to Thomas Hobbes is the non-performance of ones
covenant and whatsoever is not unjust is just30. This is so as he stated that where no covenant
hath preceded, there hath no right been transferred, and every man has right to everything and
consequently, no action can be unjust. Aristotle defined justice to be of general justice and
particular justice. Aristotles general justice is a form of universal justice that can only exist in a
perfect society; while particular justice is where punishment is given out for a particular crime or
act of injustice.

JUSTICE AND CONTEMPORARY PHILOSOPHERS

A) HLA HART

Hart discusses his concept of justice and morality by indicating the relativity of the concept of
justice. He indicates that justice is far more complicated because of the shifting standard of
relevant resemblance between different cases incorporated in it ,it also varies with the type of
subject to which it is applied, and the fact that may often be open to challenge even in relation to
a single type of subject. Hart defines law as the combination of rules, making morality or justice
as a necessary component of law through the rule of recognition.
He asserts that in cases where existing laws are vague or indeterminate, judicial discretion may
be necessary in order to interpret and spell out existing laws or to look outside the law for
standards to guide in supplementing old legal rules or creating new ones according to the
communitys ideal of morality or justice. Hart analyzes the concept of justice into a general
principle with changeable criteria. He considers that administrative justice, one aspect of justice,

30 T HOMAS HOBBES, LEVIATHAN, O F OTHER LAWS OF N ATURE , chapter 15.

17
has an essential connection with law. According to Hart, the general concept of justice is
connected with fairness31. The concept of justice applies to two primary types of circumstances-
one is the distribution of benefits or burden upon individuals, and second is where wrongdoers
compensate to the victims for the injuries caused. Apart from these two situations, justice can
also be applied in trials and punishments.
Hart argues that the theory of treating like cases alike is not very fundamentals for analyzing
administrative justice. It may cover the basics of impartiality because if decisions are guided
solely by the criteria in rules there may not be room for prejudice and bias
Hart adopts Aristotles analysis of justice. So, the general precept of justice is that Treat like
cases alike and different cases differently. As recognized by Aristotle however, this precept has
to be supplemented by an account of relevant criteria for deciding whether the cases are similar
or different. Unfortunately, Hart does not provide a general theory or set of principle for
determining which characteristics are relevant32.

B) JOHN RAWLS

John Rawls perspective is a modern attempt to defend principles of justice. His conception of
justice demands33;
1. The maximization of liberty, subject only to such constraints as are essential for the
protection of liberty itself,
2. Equality for all, both in the basic liberties of social life and also in distribution of all other
forms of social goods, subject only to the exception that inequalities may be permitted if
they produce the greatest possible benefit for those least well off in a given scheme of
inequality (the difference principle),
3. Fair and equal opportunity and the elimination of all inequalities of opportunity based
on birth or wealth.

31 H.L.A. Hart, The Concept of law, Oxford University press, 1961.

32 Ibid.

33 Prof. Charles D Kay, Justice as Fairness, Wofford College Review, 2006.

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LAW AND JUSTICE

In order to understand the concept of law and justice, various questions need to be answered.
Beginning with being synonymous to whether justice is to be achieved through law, there is
always difficulty in forging a consensus in matters like justice for they are by nature,
particularistic or relativistic34. Also, the concept of justice is controversial and recurring as every
or judicial pronouncement of positive law does not foreclose further debate about the merits of
the provision in question and the legal rules through which justice is administered at any given
time35. Even the idea of justice changes from time to time as the justice of a particular case
might not be the same justice of another case based on similar facts.
However, in situations whereby there are just laws, justice and law could be said to be
synonymous in ordinary parlance where justice was begotten from the correct application of such
a law as opposed to arbitrariness. It was indeed noted by some writers that compliance with the
law leads to justice.65 Most writers however believe that law is remarkably different from justice
since law consists in the positive structures that make up judicial systems while justice, cannot be
bound to a system36. Laws function is to calculate between competing clams: it weighs and
measures, and gives judgment, for the law is a coded system and the law can calculate correctly
that according to a rule/law a person deserves a certain punishment or reward (which however
does not mean that it is just); while justice on the other hand is not a mere for it would not
recognise the impossibility of making a perfect decision here and now37.They also noted that
law is a call to order while justice is a call to action and that while the former deals more with
duty, the latter deals with responsibility.

COMPARISON OF LEGAL SYSTEMS

Most Nigerian judges perceive their role as applying justice according to law rather than law
according to justice. Accordingly, they are not stricto sensu sensitized to the needs and
conditions of the litigants before them. Whether the substantive law is fair, just or equitable is
not for them to decide so long as the demands of formal or procedural justice have been met.

34 Akin Oyebode, Law and Nation-Building in Nigeria: Selected essays, page 41.
35 Geoffrey Hazard, Law and Justice In The Twenty First Century, Fordham Law Review, Vol. 70 Pg. 1739.
36 YVONNE M ALAN & P AUL C ILLIERS, DECONSTRUCTION AND THE D IFFERENCE BETWEEN LAW AND J USTICE,
pg. 224.
37 Ibid.
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An example is the issue of locus standi in environmental litigation in which the judiciary has
intervened by making the Fundamental Rights (Enforcement Procedure) Rules 2009governs the
powers of the Chief Justice of Nigeria in section 46(3) of the 1999 Constitution.
Accordingly, Order 1 Rule 2 provides that the Constitution, especially Chapter IV, as well as the
African Charter, must be expansively and purposively interpreted and applied.
Order 1 Rule 2(3)(e) provides that the Court must pro-actively pursue enhanced access to justice
for all classes of litigant, especially the poor, the illiterate, the uninformed, the vulnerable, the
incarcerated, and the unrepresented.
Order 1 Rule 2(3)(f) provides that the Court must encourage and welcome public interest70
litigation in the human rights field, and no human rights case may be dismissed or struck out for
want of locus standi.
Order 1 Rule 2(3)(g) provides that the Court must, in an agile manner calculated to advance
Nigerian democracy, good governance and human rights civilisation, pursue the speedy and.
efficient enforcement -and realisation of human rights.
Order 1 Rule 2(3)(h) provides that under no circumstances shall the Court allow procedural
formulae or arid legalism to hamper, hinder, impede, inhibit, obstruct or stall human rights
enforcement or advancement.
However, in this area of justice according to law or law according to justice most
commentators and jurists choose the former for the major reason that justice according to law
would be more predictable and certain instead of according to the whims and caprices of judges
or tribunals.

INDIAN LEGAL SYSTEM

The Indian Judiciary administers a common law system of legal jurisdiction, in which customs,
precedents and legislation, all codify the law of the land. The legal system in India follows the
common law model prevalent in the countries which were at one time under British Rule or were
part of the British Commonwealth. The jurisprudence followed in India is almost the same as the
one prevalent in England, though it has been cross-fertilized by typical Indian values. The
Constitution of India has set up three branches of the State: 1. the executive, 2. the judiciary, and
3. the legislature. These are demarcated by their respective areas of jurisdiction.

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India follows the adversary system of legal procedure. This means that the judge acts as a neutral
arbiter upholding the balance between the contending rivals without actively taking part in the
forensic debate in the court. Although, the model of legal administration in India is closely akin
to the Common Law model, the Indian courts must keep the Constitutional values in mind while
administering justice. The signature theme of the constitution, as pointed out by the Indian
Supreme Court, is social justice, and that is uppermost in the minds of the courts administering
justice38. Judicial Independence is one of the basic features of the Indian Constitution and the
courts jealously guard it. The Doctrine of Judicial Review of legislative and executive acts is
another immutable value of the Indian legal system. It goes hand in hand with the doctrine of
Independence of the Judiciary.

ENGLISH LEGAL SYSTEM

The legal systems within the United Kingdom were based largely on judge-made law39 (or case-
law) until around the seventeenth century. Each jurisdiction developed its own forms of common
law, with Scotland being especially distinct from the rest. Legislation has become the
commonest source of new laws or of law reform since around the Seventeenth
century. Comparing legislation with common law, statutes generally have the power to change
the established common law, but the common law cannot overrule or change statues. A statute
can only be overrruled or amended by another, later statute. This relationship reflects the legal
and political doctrine known as Parliamentary Sovereignty - the recognition and acceptance
that Parliament is the supreme law-making authority in the land. However, that authority may not
be absolute - it has been limited by the relationship with the European Union, and the importance
of principles such as the recognition of individual freedoms, democracy and governmental
accountability may place further limits on its exercise. Nevertheless, save for these possible
limits in extreme circumstances, the judges must normally apply statutes, even if they are
contrary to established common law. The task of the judge is to interpret and apply the statute -
they cannot disregard it or declare it to be "unconstitutional". Thus, the English legal system is
based on Precedent commonly known as the common law.

38 B. N. Srikrishna, The Indian Legal System, International Journal of Legal Information, 2009, pg. 242.
39 Law developed through decisions by judges necessary to decide cases brought before them , also called "common
law".

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 5. CONCLUSION

The law affects every aspect of our lives; it governs our conduct from the cradle to the grave and
its influence even extends from before our birth to after our death. We live in a society which has
developed a complex body of rules to control the activities of its members. A legal order which
is an aggregate of norms laid out by law constitute a unity if they have the same basis of validity.
If the law is positive law, the norms of a legal order are posited or created through human acts.
To say that a legal norm is "valid," that it has "validity," or, what comes to the same thing, is
binding is to say that the subjective meaning of the act through which the norm is posited is also
interpreted as its objective meaning. The subjective meaning of an individual's act intentionally
directed to certain behavior of another individual is not always also interpreted as the objective
meaning of the act. Justice on the other hand is based on the social order and the prevalent law.
Probably the most influential argument for thinking that legal theory is inherently evaluative
proceeds from the idea that legal theory is an interpretive endeavor. To say that legal theory is an
interpretive project is to claim that fully understanding what the law is requires construing it as
the best instance it can be of the type of thing that it is. Moreover, one might think that in order
to construe legal practice as the best instance of the kind of thing that it is requires making thick
evaluative claims about the law.
One might attempt to respond to this argument in two ways. A natural, though ultimately
unsuccessful, reply is that construing something as the best instance of its kind that it can be does
not require taking that kind to be good. As a result, saying that the law must be thus-and-so in
order to be a good instance of its kind does not commit one to any thick evaluative claims. Thus,
offering an interpretation of legal practice would require taking a stand on which of the available
ways of construing that practice is morally better than the others. Of course, this does not
necessarily require asserting that the law, on any particular construal, is goodfull stop. But it
does seem to require at least saying that some construals of legal practice are morally better than
other construals would be. This looks to be a thick evaluative claim, albeit a comparative one.
Moreover, one cannot make such comparative judgments without having a view about what
would make one construal of legal practice morally better than another.

22
 6. BIBLIOGRAPHY
Dictionary
1. Oxford English Dictionary, (New Delhi: Universal Publications, 2nd Ed., 1989)

Articles
1. R.R. Hare, Structure of Indian Legal System, International Journal of Law and Legal
Studies,
2. Robert D. Cooter, Law From Order: Economic Development and the Jurisprudence of
Social Norms, Berkley Law Journal, 1997.
3. C. K. Advocates Library, Jurisprudence And Justice, 2014.

4. B.N. Srikrishna, The Indian Legal System, International Journal of Legal Information,
Issue 2, Vol. 36, 2009.

5. Geoffrey Hazard, Law and Justice In The Twenty First Century, Fordham Law Review,
Vol. 70 Pg. 1739.

Books-
1. The Concept of Legal Order, Hans Kelsen.
2. Shellens, Aristotle on Natural law, 2010.
3. H.L.A. Hart, The Concept of law, Oxford University press, 1961.
4. Thomas Hobbes, Leviathan, Of other Laws of Nature.

Websites
1. http://wwwhttp://www.enotes.com/topics/theory-justice.htm
2. http:// http://www.scu.edu/ethics/practicing/decision/justice.
3. http:// http://gadfly.igc.org/Rawls/4-RDP.PDF
4. http://www.usgovinfo.about.com/library/weekly/aa030601a
5. http://plato.stanford.edu/entries/rawls/
6. http://www.beyondintractability.org/essay/principles-of-justice
7. http://www.iep.utm.edu/rawls/
8. http://www.utilitarianism.com/mill1.htm
9. http://www.qcc.cuny.edu/SocialSciences/ppecorino/INTRO_TEXT/Chapter%208%20Et
hics/Justice_as_Fairness.htm

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