The more law, less justice

Laws are like sausages, it is better not to see them being made--Otto yon Bismarck

Justice Justice is a subject that interests most people, not just lawyers. Generally, however, it is lawyers who are responsible for the administration of justice. Unfortunately, many people who come into contact with the justice system come away from the encounter feeling bruised or defeated. There are many possible reasons for this. The same reasoning emerges in discussions about human rights. If a democratic society determines that it will treat an unpopular minority adversely, it is giving effect to exactly the same thinking: the strong do what they can and the weak suffer what they must. In a democracy the majority is, by definition, strong. Those whose human rights need protecting are hardly ever members of the majority: on the contrary, they are almost always members of unpopular minorities. Those with power can--and often do--define justice by reference to the will of the majority. This is the logic of the Athenians. Each person has an equal right to the most extensive scheme of equal basic liberties compatible with similar schemes for all In practice law and justice are not always synonymous: when the law dictates an unjust result, the justice system will deliver an unjust result. Judges are sworn to do justice according to law. They are neither required nor permitted to give voice to their idiosyncratic conceptions of justice: they are bound to apply the law as it is written. This has caused great personal difficulty for some Australian judges in recent years when confronted with peculiarly harsh laws regarding the treatment of asylum seekers. Every law, by necessity, is a generalization. You can't have a law that says it is OK to be unfair to Mr. Radu because he has more money than Mr. Andrei. In reality, however, that is very true. If the law says, for instance, that a person should be fined 10% of his income for a certain crime, what it really means is that you are allowing rich people to commit crimes. A person who earns $1,000 per month, may not be able to buy groceries for a week, if he has to pay a $100 fine but a person who earns $1 million per month could easily pay $100,000 and still keep his lifestyle unchanged. So, if there had not been a law saying that a person had to pay a fine, then the judge could have decided on a case-by-case basis, what to do, and been more fair to everyone. The only problem with that is, of course, that every judge is assumed to be fair and honest.