Justice as constancy

Law and Philosophy

Volumn 16, Issue 6, 1997, Pages 561-580

  Kramer, Matthew H ^a  

^a CHURCHILL COLLEGE   (United Kingdom)

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[No Author keywords available]

Indexed keywords

EID: 0031506933     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3504924     Document Type: Article

References (17)

1. David Lyons, "On Formal Justice," Cornell Law Review 58 (1973), p. 833 [hereinafter cited as "Formal Justice"], republished in David Lyons, Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993) [hereinafter cited as Moral Aspects], 13. For two recent restatements of the view which Lyons assails, see Neil MacCormick, "Natural Law and the Separation of Law and Morals," in Robert George (ed.), Natural Law Theory (Oxford: Clarendon Press, 1992), pp. 105, 122-124; and Kent Greenawalt, "Too Thin and Too Rich: Distinguishing Features of Legal Positivism," in Robert George (ed.), The Autonomy of Law (Oxford: Clarendon Press, 1996), pp. 1,28 n. 28. Neither MacCormick nor Greenawalt takes account of Lyons's criticisms at all. I should note that, throughout this essay, I use the words "formal" and "procedural" interchangeably.
2. David Lyons, "On Formal Justice," Cornell Law Review 58 (1973), p. 833 [hereinafter cited as "Formal Justice"], republished in David Lyons, Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993) [hereinafter cited as Moral Aspects], 13. For two recent restatements of the view which Lyons assails, see Neil MacCormick, "Natural Law and the Separation of Law and Morals," in Robert George (ed.), Natural Law Theory (Oxford: Clarendon Press, 1992), pp. 105, 122-124; and Kent Greenawalt, "Too Thin and Too Rich: Distinguishing Features of Legal Positivism," in Robert George (ed.), The Autonomy of Law (Oxford: Clarendon Press, 1996), pp. 1,28 n. 28. Neither MacCormick nor Greenawalt takes account of Lyons's criticisms at all. I should note that, throughout this essay, I use the words "formal" and "procedural" interchangeably.
3. David Lyons, "On Formal Justice," Cornell Law Review 58 (1973), p. 833 [hereinafter cited as "Formal Justice"], republished in David Lyons, Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993) [hereinafter cited as Moral Aspects], 13. For two recent restatements of the view which Lyons assails, see Neil MacCormick, "Natural Law and the Separation of Law and Morals," in Robert George (ed.), Natural Law Theory (Oxford: Clarendon Press, 1992), pp. 105, 122-124; and Kent Greenawalt, "Too Thin and Too Rich: Distinguishing Features of Legal Positivism," in Robert George (ed.), The Autonomy of Law (Oxford: Clarendon Press, 1996), pp. 1,28 n. 28. Neither MacCormick nor Greenawalt takes account of Lyons's criticisms at all. I should note that, throughout this essay, I use the words "formal" and "procedural" interchangeably.
4. David Lyons, "On Formal Justice," Cornell Law Review 58 (1973), p. 833 [hereinafter cited as "Formal Justice"], republished in David Lyons, Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993) [hereinafter cited as Moral Aspects], 13. For two recent restatements of the view which Lyons assails, see Neil MacCormick, "Natural Law and the Separation of Law and Morals," in Robert George (ed.), Natural Law Theory (Oxford: Clarendon Press, 1992), pp. 105, 122-124; and Kent Greenawalt, "Too Thin and Too Rich: Distinguishing Features of Legal Positivism," in Robert George (ed.), The Autonomy of Law (Oxford: Clarendon Press, 1996), pp. 1,28 n. 28. Neither MacCormick nor Greenawalt takes account of Lyons's criticisms at all. I should note that, throughout this essay, I use the words "formal" and "procedural" interchangeably.
5. See David Lyons, "Formal Justice and Judicial Precedent," Vanderbilt Law Review 38 (1985), p. 495, reprinted in Moral Aspects, supra note 1, at 102; and David Lyons, "Derivability, Defensibility, and the Justification of Judicial Decisions," Monist 68 (1985), p. 325, reprinted in Moral Aspects, supra note 1, at 119.
6. See David Lyons, "Formal Justice and Judicial Precedent," Vanderbilt Law Review 38 (1985), p. 495, reprinted in Moral Aspects, supra note 1, at 102; and David Lyons, "Derivability, Defensibility, and the Justification of Judicial Decisions," Monist 68 (1985), p. 325, reprinted in Moral Aspects, supra note 1, at 119.
7. See David Lyons, "Formal Justice and Judicial Precedent," Vanderbilt Law Review 38 (1985), p. 495, reprinted in Moral Aspects, supra note 1, at 102; and David Lyons, "Derivability, Defensibility, and the Justification of Judicial Decisions," Monist 68 (1985), p. 325, reprinted in Moral Aspects, supra note 1, at 119.
8. See David Lyons, "Formal Justice and Judicial Precedent," Vanderbilt Law Review 38 (1985), p. 495, reprinted in Moral Aspects, supra note 1, at 102; and David Lyons, "Derivability, Defensibility, and the Justification of Judicial Decisions," Monist 68 (1985), p. 325, reprinted in Moral Aspects, supra note 1, at 119.
9. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) [hereinafter cited as Hart, Concept], pp. 155-157; H. L. A. Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958), pp. 593, 623- 624, reprinted in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), pp. 49, 81.
10. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) [hereinafter cited as Hart, Concept], pp. 155-157; H. L. A. Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958), pp. 593, 623-624, reprinted in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), pp. 49, 81.
11. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) [hereinafter cited as Hart, Concept], pp. 155-157; H. L. A. Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958), pp. 593, 623- 624, reprinted in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), pp. 49, 81.
12. See H. L. A. Hart, "Introduction," in Essays in Jurisprudence and Philosophy, supra note 3, at 1, 18, where Hart avouched that he was uncertain about the sustainability of his claim concerning formal justice and was "clear that my claim requires considerable modification."
13. The importance of this qualification should not be underestimated. Throughout this essay, my concern is with fairness rather than with consequences such as enhanced security or prosperity; nonetheless, I certainly do not mean to suggest that those consequences are of little significance for an overall theory of the relationship between law and morality. Although my cabined focus is appropriate for the task of parrying Lyons's arguments, it plainly does not yield a comprehensive analysis of the possible justifications for the strict enforcement of evil laws.
14. Worth noting here is that a law can be wicked not only if it authorizes heavy-handed repression but also if it extends grossly insufficient protection to the members of certain groups. Consider, for example, the former statute in Texas that deemed any man's slaying of his wife's paramour to be justifiable homicide; for an interesting discussion, see Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 102-103.
15. Many of the technical requirements within sundry areas of law - such as electoral or commercial law - may in themselves have no obvious moral bearing, either positive or negative. Such norms I designate as "neutral." (For a discussion that casts light on this point, see John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 284-286, 295.) I also classify as "neutral" the myriad legal norms which are flawed in certain respects but which plainly fall short of being evil. Exactly where the realm of neutrality ends and the realm of wickedness begins is a substantive moral question that will not be addressed here. (It also undoubtedly is a variant of the ancient sorites problem, which is ably discussed in R. M. Sainsbury, Paradoxes (Cambridge: Cambridge University Press, 1988), ch. 2.)
16. This presupposition also underlies the following passage from Kent Greenawalt, supra note 1, at 12-13: "Many positivists accept the principle that . . . 'rule of law' standards have moral significance. H. L. A. Hart, for example, acknowledges in The Concept of Law that 'a minimum of justice is necessar[il]y realized whenever human behavior is controlled by general rules publicly announced and judicially applied' and that 'principles of legality' of the kind Fuller discusses are 'requirements of justice'. Thus, the thesis that 'principles of legality' have moral content does not separate many positivists from natural lawyers." (Footnote deleted.)
17. My approach to Hart's comments on impartiality has been slightly different from that of Lyons, primarily because Lyons's approach relies to some extent on claims (about procedural justice) which I have already rejected.