Law and Justice: what’s the difference?
Jonathan Chaplin reviews The End of Law: How Law’s Claims Relate to Law’s Aims, which looks at the relationship between law and justice.
If you were asked to complete, without hesitation, the phrase ‘law and…’, probably the first thing that would come to mind is ‘…order’. ‘Law and order’ trips off the tongue so easily because it is standard fare in political debate, frequently invoked as a central purpose of government — and not only by those on the political right.
And rightly so: without a law-governed framework of public order, society would risk descending into chaos and violence. Law-governed order establishes clear behavioural norms and expectations and so makes social life predictable and thus more or less manageable for citizens, institutions and governments.
But as soon as we probe what ‘law and order’ actually means, we quickly realise it doesn’t tell us anything like enough about what governments ought to do. After all, many repugnant laws are imposed by governments in order to create ‘order’ in society. China’s notorious former ‘one-child’ policy certainly imposed ‘order’ on Chinese family life (parents know how many children they were allowed) but did so in a profoundly oppressive way. Current British tax laws certainly establish a framework of fiscal ‘order’ (it tells us who must file returns, when and how), while permitting massive tax avoidance on the part of wealthy individuals with access to tax havens, or of global tech companies like Amazon and Google able to exploit outdated residency rules. ‘Order’ itself can never be an adequate statement of the purpose of law.
David McIlroy’s new book, The End of Law: How Law’s Claims Relate to Law’s Aims, presents a forceful argument, drawing on Augustine’s political theology, that any discussion of ‘law and order’ presupposes a more fundamental one about ‘law and justice’. It engages with many leading contemporary legal and political thinkers, while developing a clear and compelling thesis of its own. The author’s accessible, non-technical style means that the book could be read with profit by non-specialists (and non-Augustinians) and by legal practitioners and law students, while also informing and challenging those already well-versed in legal theory.
McIlroy’s core argument is that ‘justice is the end of law…the ultimate purpose of law’ (p.2). His project is to develop an account of law that is ‘realistic but not cynical about law’s relationship to justice and to violence, that can diagnose ways in which law becomes deformed and pathological, and that indicates that law is a necessary but insufficient instrument for the pursuit of justice’ (p.2). His point is not that law is one thing which must be related to some other thing, an external principle called ‘justice’. Rather, it is the more interesting and controversial idea that law cannot even be rendered intelligible without reference to justice. Justice is essential to the very definition of law. Whether we recognise it or not, justice is already at work ‘inside’ law, functioning as a substantive guide to its content, a norm by which it is justified to those subject to it, or an indictment of its deficiencies.
The author buttresses his argument with the use of two original and illuminating sets of distinctions. The first set seeks to define what law is. Laws necessarily ‘refer to’ justice: their authority depends on an implied claim to serve justice; laws necessarily ‘defer to’ justice: they implicitly acknowledge that they only partially realise it; and laws necessarily ‘differ from’ justice: the constraints of governing via general rules means that that it is impossible for laws to do justice in all individual cases’ (p.2).
The second set specifies what ‘justice’ is. ‘Shallow justice is justice according to law, occurring when a legal system lives up to its own claims… Deep justice is justice behind the law: it is made up of those expectations of right behaviour and just action that are held within a community. True justice is justice beyond the law: it is that form of justice that, if it exists, judges all our actions of shallow justice and all our conceptions of deep justice’ (p.32).
While it can’t be said that these are immediate implications of an ‘Augustinian’ starting point, they do shed new light on what is at stake in the debate over law and justice, offering a helpful language through which that debate could be better conducted. This debate is largely framed by what is still the most influential legal theory taught in most law schools — legal positivism. This theory advances the view that while law may in fact be placed in service of substantive moral or social objectives like justice — and legal positivists argue that it’s the task of democratic politics to make those decisions — an adequate account of law can still be given without mentioning any of them. In essence, law is a morally neutral instrument of social control.
McIlroy offers a robust critique of this view, arguing that even its most sophisticated defenders still evade the central challenge that no account of the actual functioning of law as a social institution can be adequate without reference to justice. Justice is not simply a moral ideal that an account of law can take or leave. Rather, justice is essential to a satisfactory empirical explanation of law. For example, it’s crucial to explaining why rulers don’t just issue bare commands, or merely defend a law in terms of its procedural propriety. Rather, rulers typically appeal to the justice of their laws in order to induce voluntary obedience to them and so minimise the need for coercion (a claim unpacked in chapter 5). ‘Law’, McIlroy claims, ‘is not merely a practice of issuing rules backed by force; it is a practice of issuing rules that carry with them reasoning explaining their justification….rules that claim to be just’ (p.15). Or, as he puts it more pointedly, officials in a legal system ‘must…act as if “legal positivism is false”’ (p.63).
McIlroy offers instead an appealing ‘critical natural law’ account of law (spelled out most fully in chapter 7). This account makes clear that, contrary to a widespread misconception, natural law theory is not inherently conservative but has critical bite. While most contemporary natural lawyers build on medieval thinkers like Thomas Aquinas, McIlroy reaches back to Augustine, rightly claiming that he was ‘more provocative and critical’ than Aquinas (p.1). He opens the book by noting that it was Augustine who posed the sceptical, ‘deconstructive’ question: ‘what is the difference between a kingdom and a band of robbers?’
Although Augustine had much less to say about law than Aquinas did, he had a great deal to say about the limits and possibilities of a common political life in a profoundly fallen world in which humans nevertheless yearn for both ‘order’ and ‘justice’, however imperfectly these may be realised in ‘this age’. For some reason Augustine is only introduced in chapter 6, so readers keen to view the building’s foundations before they start to climb the stairs might wish to begin there.
McIlroy develops his Augustinian account further in his final two chapters (9 and 10) where he presses home the case he has been constructing cumulatively throughout the book — that justice is fundamentally a critical benchmark against which the necessity, possibilities, limits and failures of law must be tested. He concludes by posing the question of whether a plausible account of ‘true’ justice could be mounted without appeal to God as the source of justice. While he acknowledges that much of what he claims about shallow and deep justice would stand whatever answer is given to that question, his own answer is in the negative:
‘It is by acknowledging the possibility of a real true justice, beyond the horizon of the present world, that, after all, we may find the greatest resources both for understanding the social institution of law and for embarking upon a critique of its achievements and failings’ (p.180).
The End of Law is a commendably dissenting intervention into the debate about how to shore up the foundations of law at a time of deepening uncertainty about what law is for and whether it is anything more than the outcome of a power contest. It’s thus also a timely one, at a moment when a legitimate moral pluralism threatens to collapse into a dangerous cultural and political fragmentation that places democracy and the rule of law in serious jeopardy.
Jonathan Chaplin is Research Associate for Theos Think Tank and co-editor of In Search of Good Energy Policy (Cambridge University Press 2019)
David McIlroy’s The End of Law: How Law’s Claims Relate to Law’s Aims is published by Edward Elgar (2019). £63.00
