Study Notes on Law and Justice

From the earliest times, justice has been regarded as an ideal for any legal system.
Justice does not possess a fixed content or meaning; there exists a myriad of different perspectives on what justice entails.
- This complexity is a concept that humans have reflected on and philosophised about for centuries.
The Ancient Greek philosopher Aristotle distinguished between two forms of justice:
- Distributive Justice: This implies that there must be an equal distribution among equals.
- Corrective Justice: This aims at restoring inequalities that have arisen.
Equality is usually an essential element of justice.
Question posed: Does the law always embody justice?

Procedural law is comprised of the legal rules and processes by which a court reaches its decision or solution.

Substantive law consists of the material legal rules that define rights and responsibilities.

The legal process strives towards formal/procedural justice in the following respects:
- Principle of Equality: Like cases must be treated alike.
- System of Precedent: This judicial instrument ensures consistent application of law.
- Presumption of Innocence: In criminal procedure, an accused person is presumed innocent until proven guilty.
- Rights of the Accused: The process must ensure that both sides are heard, the accused must be presented before the court within a reasonable time, and that no force or undue influence may be used to induce a confession (as per Section 35 of the Constitution regarding criminal law).

The content of material law does not necessarily align with justice.
Example: The Group Areas Act 42 of 1950 is cited as an embodiment of social injustice, featuring a system of racial influx control that led to family disintegration and other social evils.
- The essence of justice and equality was negated through this legislation, adversely affecting certain sections of the community.

Central Question: Should the law embody justice to qualify as law?
Legal Positivism defines the law by reference to that which “is” rather than that which “ought to be.”
- According to this approach, it is irrelevant whether the law is fair or just; morality and law are considered distinctly separate.
- Law is encapsulated in statute books, rules, and court decisions.
- Only the rules endowed with the force of positive law by relevant authority can be recognized as law.
- Definition: Legal positivism signifies an approach where laws are valid if enacted by the sovereign, regardless of fairness or justice.

Under this framework, judges operate almost mechanically, adhering strictly to the application of existing laws:
- The phrase Ius dicere non facere translates to "judges speak the law; they do not create it."

In contrast to legal positivism is the Natural Law Approach.
Natural law encompasses a moral dimension, positing that the law is not only what is promulgated (positive law) but also encompasses what ought to be.
This suggests that there exists a moral code or set of principles that is independent of human interaction and positive law.
- Higher norms exist against which human positive law can be evaluated, and if positive law conflicts with these norms, it is deemed unjust.
Core Belief: An unjust law is no law at all.
The validation of legal rules by natural lawyers hinges upon their moral content.

Definition: An approach to law where laws are recognized as valid only if they comply with universal principles of morality and justice.
- The term ‘natural law’ denotes that these norms exist within the harmony and order of nature or human nature.
- The content of natural-law norms can be discerned through human reason and applies universally across all times and places.
- No legislative action is necessary to impose or give content to these norms.

Discussion point on whether a legal rule must be obeyed even if perceived as unfair or unjust: passive disobedience and civil disobedience are explored.