In Shakespeare’s Henry VI, a rebel alarmingly named Dick the Butcher says: “The first thing we do, let’s kill all the lawyers.” But wait—don’t we need lawyers to safeguard the rule of law and uphold justice? In his essays on justice, the philosopher Chaim Perelman set out to “analyze scientifically the concept of justice.” His aim was “to distinguish the variety of its meanings and uses,” revealing the ambiguity and conceptual confusion that pervades the quest for justice. He observed that, despite belief in justice under the law, lawyers traditionally saw justice simply as “conformity to the law.” In their view, “not violating the law is the accepted way of implementing justice.”
But what if the law itself is unjust? Philosophers concerned with justice therefore doubted the ability of lawyers to answer such “higher” abstract questions. Perelman observes that, although both sides of a legal dispute may genuinely want to see justice done, often “the opposing camps simply do not have the same conception of justice.” He explains,
…it is an undeniable fact that justice has many facets, depending on the theses of the contending parties. For thousands of years, in public conflicts and in private ones, in wars and in revolutions, in lawsuits and in clashes of interest, antagonists have declared and attempted to prove that justice was on their side. And so the notion seems inextricably confused.
Perelman’s point is well made. For that very reason, common law courts avoided referring to amorphous notions of “justice” when resolving disputes. The law was to be found in legislation or by studying previous cases, not by philosophizing on what may seem “just” to an observer. To jurists in the classical liberal tradition, suffice it that legal rules are clear and predictable so that people can organize their lives accordingly. Should disputes arise, the role of the judge is to apply the rules correctly to ensure the right outcome as between the parties to the specific dispute.
For classical liberals who follow Friedrich von Hayek’s theory of the rule of law, mere legality does not suffice. Justice under the rule of law requires the maximization of liberty, or the minimization of coercion. Thus, Hayek objected to arbitrary and capricious rules because they are incompatible with individual liberty. But, even in this sense, where it is acknowledged that law must be subject to a “higher” principle of safeguarding individual liberty, justice is still little more than shorthand for, or coterminous with, the rule of law. It simply means like cases are treated alike and are governed by the same clear and predictable rules.
Perelman refers to this notion of justice as “the juridical model.” The juridical model does not attempt to formulate theoretical or philosophical principles of justice. Hence Perelman observes that philosophers considered the juridical model inadequate in conceptualizing the meaning of justice: “philosophers, at least the rationalists, traditionally did not hesitate to express their scorn for law, its techniques and practitioners.” Historically, common law judges did not deem it appropriate to express their personal opinions on whether the legal rules are “just” or not. The goal of this juridical model was simply to ascertain the relevant legal rules and correctly apply them. The juridical model takes seriously the distinction drawn by Hayek between “what is actually valid law and what ought to be the law.” Thus, judges aim to resolve disputes according to the law, not by embarking on a judicial voyage to envision what the law “ought to be.” In that model, as long as the rules are clear and well-founded, there would be very little need for laws and even less need for lawyers. Perelman explains,
…in all the utopian cities, which are supposedly rational, no place is reserved for the practitioners of law, even when these cities are the creations of jurists… In utopian countries there are only a few laws; simple and clear, they are immediately accessible to everyone and do not need to be interpreted in order to be understood: “No lawyers from now on. Far from viewing them as instruments of justice, the Utopians regarded professional pleaders as men intent on twisting the meaning of the law and living by chicanery.”
In recent decades, the analytical distinctions between the juridical model of “the rule of law” and political theories of justice have become blurred. The law school curriculum is devoted to learning what the law “ought to be.” The impetus to blur the distinctions between positive and normative law has come largely from those who—perennially afraid of rogue lawmakers—see the role of judges as primarily that of deciding which legal rules are “just.”
The activist judge, with “justice” as his guiding light, will ensure that justice is done and will not let the law stand in his way. Fiat justitia, pereat mundus! cry the defenders of justice. Those who favor a politically understood notion of justice do not trouble to distinguish between the positive and the normative, the juridical and the political. They frequently use the phrase “that is illegal” to mean that in their opinion “that ought not to be the law” as it would lead to unjust outcomes.
As Perelman argues, such a shift between “is” and “ought” is not necessarily irrational in cases where the “ought” reflects social conventions. In such cases, “it is as it should be” because the “ought” reflects “behavior that is customary, or [reflects] a situation that is traditional.” The “is” and the “ought” are not in conflict. An example would be to say that women “ought” to have designated private spaces—a convention that long predates the law. Matters are rather different where the “ought” is revolutionary, where the “ought” seeks to break from established conventions. In this case the argument would run that men who identify as women “ought” to be allowed in women’s bathrooms. It is no wonder that defenders of both these “ought” propositions claim that their position “is” the law. They both read the law prohibiting sex discrimination in conformity with what they believe the law “ought” to say. Hence, the bathroom wars, which have become so fraught, and in some cases even violent, that Shakespeare’s Dick the Butcher may well have seen this as a situation where lawyers on both sides—far from safeguarding justice—only stand in the way of liberty.
As that example illustrates, the notion of “justice” often expresses a revolutionary political or ideological opinion on social reform. The sex discrimination law that now serves as a platform for gender-wars between “sex-based feminists” and “gender-inclusive feminists” started out to achieve “justice” for women. Feminists argued that it is “unjust” that men and women have different life experiences. “Justice” requires that men and women have equal opportunities to forge a career and equal pay for their efforts. We now have laws prohibiting discrimination based on sex, and the meaning of these laws—predictably—reflects the different opinions on what the law “ought to be.” Each warring faction is determined to see “justice” done. Is this “justice,” or is this merely a case where legal force is given to the opinions of social engineers, fueled by the “professional pleaders as men intent on twisting the meaning of the law and living by chicanery” cited by Perelman? He puts the question as follows:
Are the values and norms presupposed in the establishment of justice expressions of reason, or are they no more than the expressions of our passions and our interests?
Readers will be aware that Murray Rothbard sees justice as a moral and ethical concept, derived from the philosophy of natural law. Justice is not about ideological warfare, fighting to see whose politics will win in the public arena, where the winner is usually the faction with the deepest pockets to fund endless lawfare. Instead, justice is rooted in the defense of self-ownership, private property, and the non-aggression principle. Rothbard’s theory of justice is simple enough to enable us to stand down the armies of lawyers who drive the engines of lawfare:
In short, there exists another alternative for law in society, an alternative not only to administrative decree or statutory legislation, but even to judge-made law. That alternative is the libertarian law, based on the criterion that violence may only be used against those who initiate violence, and based therefore on the inviolability of the person and property of every individual from “invasion” by violence. In practice, this means taking the largely libertarian common law, and correcting it by the use of man’s reason, before enshrining it as a permanently fixed libertarian code or constitution.
