Putting justice in its place: Three essays on law and justice.

摘要

Even if you do not agree with John Rawls that justice is the first virtue of social institutions, you might still agree that it is the first virtue of the law. After all, we call our judges justices , the administration of law the administration of justice , etc. My dissertation examines a cluster of views that give justice fundamental priority in the explanation and justification of the law and concludes that, despite important differences in the conceptions of justice these views employ and the areas of law they target, they all greatly exaggerate the role justice plays in the law. Under no plausible interpretation is justice the first virtue of the law, private law, or criminal law. Or so I argue.; The other side of putting justice in its place is accurately identifying the salutary role justice does play in the law, a role the law and justice theories I criticize tend to blur. My discussion places considerable importance on the distinction between primary legal duties, which presuppose no other legal duties, and secondary legal duties, which only apply in response to, or anticipation of, a breach of some primary legal duty. After introducing and explaining a conception of justice in which justice is concerned with the requital of sanctions for wrongs, I argue that secondary legal duties are duties of requitative justice. I also argue that, given the special relation between secondary legal duties and the law courts, requitative justice is the first virtue of the court system.; This conclusion seems to raise an objection to my claim that justice is not the first virtue of the law. The courts are often thought of as the very foundation of the legal system, and it is reasonable to assume that if justice is the first virtue of the foundation of the legal system, it is also the first virtue of the legal system itself. I argue that law-making institutions are at least as essential to the legal system as the courts. Hence the priority justice enjoys in the court system does not transmit to the law as a whole.