Law-Linked Justice and Existence-Linked Justice

Author: VAN SCHILFGAARDE, PETER

Source: Ratio Juris, Volume 21, Number 1, March 2008 , pp. 125-149(25)

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Abstract:

Justice as a manifestation of “the just” is an evasive concept. On the one hand there is the law, an operation run by professionals. On the other hand there are the citizens the law is meant for. Generally speaking the law strives for justice. But the law has to protect many different interests and must work through legal devices. Therefore the justice that emerges from it is necessarily a legal compromise. For the citizens the legal rules are a given reality. Generally they will agree that the law is there to achieve justice but legal arguments that justify a rule or decision cannot have the same value for them. In cases that affect them personally, justice will be a personal, existential experience, which may be incompatible with legal justice. It is hard to keep these two forms of justice under one roof. In order to make this easier this paper proposes a conceptual split between “law-linked justice” and “existence-linked justice.” It is argued that the law cannot in truth to its rational origin ignore the citizens' experience of justice, out of the ordinary as they may be.

Document Type: Research article

DOI: http://dx.doi.org/10.1111/j.1467-9337.2007.00382.x

Affiliations: 1: Prinsevinkenpark 352585 HM The HagueNetherlands, Email: peter.vanschilfgaarde@planet.nl

Publication date: 2008-03-01