The
concept of justice is based upon and is equated with moral rightness (ethics),
rationality, law, natural law, fairness, righteousness, equality, goodness, and
equity.
What constitutes justice vary from society to society,
person to person, from time to time and from place to place. It has thus been
subject to various philosophical, legal, and theological reflections and debate.
Forms and variations of the
concept of justice
1) Utilitarianism- is a form where
punishment is forward-looking
2) Retributive justice- administers
proportionate response to crime proven by lawful evidence, so that punishment
is justly imposed and considered as morally-correct and fully
deserved
3) The law of retaliation (lex talionis)-
this theory states that reciprocity should be equal to the wrong suffered (for
example a person who commits murder should pay with his own life)
4) Distributive justice- This is
directed at the appropriate allocation of things meaning equal distribution
among the equals. a just law in this case would be one which treats like
situations alike, and an unjust law would be one that allocates rights and
duties unequally without a plausible ground
5) Corrective justice –
corrective justice seeks to reinstate equality when this is disturbed. This
comes into play when a norm of distributive justice has been breached or
infringed by a member of a community. In such a situation, it becomes necessary
to make amends for a wrong or deprive a party of an unjustified gain. This type
of justice is generally administered by the court or other organ invested with
judicial or quasi-judicial power. Its major areas of application are contracts,
torts, and crimes.
Ancient philosophers
Ancient Indians, Greeks and Romans view of justice
includes the whole of morality. They viewed justice as an ideal standard
derived from God or based on Dharma (Indians)
Justice signifies a cluster of ideals and principles
for common good and welfare without the least hope or opportunity of injustice,
inequality or discrimination.
It is the notion of justice which directs our
attention to the fairness and reasonableness of the rules, principles, and
standards that are the ingredients of the normative structure.
CONTEMPORARY PHILOSOPHERS
Contemporary philosophers think of justice as an
important part of morality.
HLA HART
Hart discusses his concept of justice and morality by
indicating the relativity of the concept of justice. He indicates that justice
is far more complicated because of the shifting standard of relevant
resemblance between different cases incorporated in it ,it also varies with the
type of subject to which it is applied, and the fact that may often be open to
challenge even in relation to a single type of subject.
Hart defines law as the combination of rules, making
morality or justice as a necessary component of law through the rule of
recognition.
He asserts that in cases where existing laws are vague
or indeterminate, judicial discretion may be necessary in order to interpret
and spell out existing laws or to look outside the law for standards to guide
in supplementing old legal rules or creating new ones according to the
community’s ideal of morality or justice.
Hart analyzes the concept of justice into a general
principle with changeable criteria. He considers that administrative justice, one aspect of justice, has an essential
connection with law.
According to Hart, the general concept of justice is
connected with fairness. Evaluations using justice and injustice could use fair
and unfair instead[1][1][1].
The concept of justice applies to two primary
types of circumstances-one is the distribution of benefits or burden upon
individuals, and second is where wrongdoers compensate to the victims for the
injuries caused. Apart from these two situations, justice can also be applied
in trials and punishments.
Hart argues that the theory of treating like cases
alike is not very fundamentals for analyzing administrative justice. It may
cover the basics of impartiality because if decisions are guided solely by the
criteria in rules there may not be room for prejudice and bias
Hart adopts Aristotle’s analysis of justice. So, the
general precept of justice is that ‘Treat like cases alike and different cases
differently’. As recognized by Aristotle however, this precept has to be
supplemented by an account of relevant criteria for deciding whether the cases
are similar or different
Unfortunately, Hart does not provide a general
theory or set of principle for determining which characteristics are relevant[2][2][2].
To Aristotle, a rule of justice was ‘natural’ if it
had the same validity the world over. However, he did not take the stance that
all the rules of justice were of this character. In particular, those of
distributive justice depended, in his opinion, on shifting criteria of human
equality and inequality. For example, he points out that the standards of
equality are not the same in democratic, oligarchic, and aristocratic
societies.
St Thomas Aquinas viewed natural law as a set of
realistic barriers which the universal and ineradicable traits of human beings,
including their rational impulse of sociability, impose upon the powers of
lawmakers.
Hart concludes that the law must be held to embrace
all rules which are valid by virtue of the constitutional or statutory tests
established by the positive legal system, regardless of the intrinsic justice
of these rules
HANS KELSEN
According to Kelsen, justice means legality; happiness
guaranteed by social order. It is just for a general rule to be actually
applied in all cases which according to its content, this rule should apply. An
injustice would arise if a law is applied in one case and not in another
similar case. It seems unjust without regard to the value of the general rule
itself, the application of which is under consideration.
The pure theory of law insists upon a clear separation
of the concept of law from that of justice and renounces any justification of
positive law by any kind of super laws.
NATURAL LAW ON JUSTICE
Natural law theory has been influential in the
evolution of the human thought on the conception of justice for more than 2,500
years since its inception. Friedmann says, ‘the history of natural law is
a tale of the search of mankind for absolute justice and its failure’.
Justice, according to Ulpian is the constant and
perpetual will to render to everyone that to which he is entitled'.
Earlier, Cicero had described justice as the disposition of the human mind to
render to everyone his due. This emphasizes the subjective aspect of
justice but certain kinds of mental attitudes are not sufficient to capture all
possible aspects of justice. Acquinas, sought to improve on this
definition by describing justice as a habit whereby a man renders to each his
due by a constant and perpetual will. .
Plato identified justice with a harmonious relation
between the various parts of the social organization[3][3][3].
Aristotle made distinction between general and particular justice and
classified particular justice as distributive as well as corrective
justice. In a general sense, justice is a social virtue, while in the
particular sense it means some sort of equality. Distributive justice,
according to him, aims at an equal distribution of the social good among
persons equal before the law. Corrective justice, on the other hand, aims at
redressing an equality which has been interfered with. It is usually
administered by a court or other organs invested with judicial or
quasi-judicial powers. Distributive justice, in the view of Aristotle, is
principally the concern of the legislator.
The Christian Church injected the element of
Christianity into the concept of justice and defined it to mean justice as
ordained by the divine law. Aquinas combined Aristotelian reason with the
position of the church doctors, and defined justice to mean justice according
to divine reason. However, justice fell also within the measures of
reason.
Social contract theorists like Hobbes and Locke used
the concept of justice in the limited sense of contractual justice with Hobbes
emphasizing the need of keeping social contract but kept
silence on modes of redressing injustice perpetrated by a ruler, Locke held the
view that injustice was redressible by revolution if need be[4][4][4].
Justice is seen as an opposite to injustice, but both
are two different and distinct concepts. As McCoubrey and White put;
justice is an aspiration which may be more or less closely approached by given
societies but is unlikely ever to be perfectly attained in any human
endeavour. By contrast injustice is not directly associated with
aspiration, it is rather a definition of the point at which a social order
fails to attain or maintain a minimum acceptable standard and at which its
'legitimacy' is fundamentally called into question either in general or in some
particular respect.
According to Aristotle, the term unjust is held to
apply both to the person who breaks the law and the person who takes more than
his due, the unfair man. Therefore, a person who abides by the law and the
person who is fair are just men.
JOHN RAWLS
John Rawls perspective is a modern attempt to defend
principles of justice. His conception of justice demands[5][5][5];
The maximization of liberty, subject only to such
constraints as are essential for the protection of liberty itself,
Equality for all, both in the basic liberties of
social life and also in distribution of all other forms of social goods,
subject only to the exception that inequalities may be permitted if they produce
the greatest possible benefit for those least well off in a given scheme of
inequality (the difference principle),
‘Fair and equal opportunity’ and the elimination of
all inequalities of opportunity based on birth or wealth.
Rawl’s Four-Staged Sequence for the attainment of a
just society.
a) The enunciation of
the principles of justice from the original position.
b) A partial lifting of
the veil of ignorance so far as the general circumstances of the society but
not the individual circumstances of the actors, the devising of a
constitutional system dealing with the powers of the government and the rights
of citizens.
c) Having established a
constitutional legislation in accordance with the principles of justices as
well as the constitutional procedures. The legislators are intended to act in
the light of the general interest rather than to their personal advantage.
d) Application of the
laws and the rules by judges and administrators
amd their working in the
actions of people generally.
Criticizing Rawls theory of distributive justice, Hart
says that the ‘principle of common interests’ breaks down in some important
cases and that Rawls underestimates the difficulty of balancing conflicting
liberties
APPLICATION OF THE CONCEPTS OF JUSTICE IN KENYA
Article 1 recognises the sovereignty of the people
which may be exercised either directly or through democratically elected
representatives and delegated to the three arms of government both at the
national level and the county level, which qualifies hart’s concept of
distributive justice.
Article 160 of the constitution provides for the
constitution provides for the independence of the judiciary giving the judicial
officers discretion to dispensing justice as per hart’s concept of construing
vague laws.
Article 10 provides for the principles of governance
to include equality, social justice, democracy and the rule of law which is
binding on all state organs, state officers, public officers and all persons
who enact, interpret or applies the constitution, any law or implements public
policy decisions hence justifying Aristotle’s perspective on justice.
Article 27 provides for the equality of every person
before the law and equal protection and benefit of the law as per Aristotle’s
view on distributive justice, which according to him, aims at an equal
distribution of the social good among persons equal before the law.
Article 159 vests judicial authority on the judiciary
exercised by courts and tribunals who have the task of ensuring that justice is
done to all irrespective of status and justice shall not be delayed.
JURISPRUDENCE AND EQUITY
Equity is generally acknowledged to be impossible to
define completely. Almost everyone who has attempted to compose a definition of
this word has ended by capitulating to the general view that the term has too
many shades of meaning to be described definitively in one, or even several
sentences. Equity can be defined as justice and impartiality. It can also be
defined as the administration of law according to its spirit and not merely
according to its letter. Equity ties the law with fairness. It is quality of
being equal or fair; fairness in dealing.
Equity is that portion of the law which was developed
by the English and American courts of Chancery to remedy defects in the common
law. Second, and more important, it is that portion of the law which has been,
or may be, enunciated for the purpose of meliorating any harsh or otherwise
undesirable effects resulting from the strict application of any particular
rule of law.
The growth of Equity as a part of English law was
anticipated by a similar development of the same notions in Roman
Jurisprudence. There has been a close relationship between the Roman
jurisprudence and early English Common law. Equity is court developed law
through Judgements and opinions given by judges. English courts have
legislatively developed this branch of law and they continue to develop it.
The rules of Roman jurisprudence were based on
morality and rules of nature and thus they were deemed impartial and fair. The
principles guiding Roman jurisprudence based on natural law were introduced to
the Roman jurisprudence hence constituting equity. Following the introduction
of Christianity and after its influence had been felt throughout the then known
world the meaning of aequitas became enlarged and was then made to include our
modern of right, justice and morality.
Equity jurisprudence in the UK developed as a result
of the petitions that were been made to the king who would listen to them and
give his verdict. The petitions increased necessitating the creation of the
courts of Chancery to hear the petition on behalf of the King. These petitions
arose mainly as a result of the harshness of the common law and its
inflexibility. It is through these courts that the principles of Equity as
applicable today came about.
As the definition of equity suggests, equitable
justice is a jurisprudence of discretionary judgment and exceptional
situations. Historically, equity originated in the exercise of executive power
by the English Chancellor, an officer of the king. The common law courts which
developed in English jurisprudence by the end of the thirteenth century were
The King's Bench, the Court of Common Pleas, and The Exchequer. Although each
of these courts had jurisdiction over different subject matters, they were all
regarded as "common law" courts, that is, courts governed by strict
rules of law, a formalized procedure and bound by judicial precedent. At that
point in time, the common law courts had no equity jurisprudence, and the Court
of Chancery did not yet exist.
Beginning in the fourteenth century, the Chancellor,
who was the King's Secretary, was responsible for issuing legal writs to
complainants who wished to bring a legal action in one of the common law
courts. Gradually, the Chancellor began to take it upon himself to resolve
disputes for which no legal writ in a common law court was available. This was
done under the theory that the Chancellor (as the King's agent) reserved the
right to adjudicate cases which had not been expressly designated for one of
the common law courts. Thus, the development of special writs for handling
cases in the Chancellor's office (the Court of Chancery) became known as the
"extraordinary" jurisdiction of the Chancellor.
The amount of cases handled by the Chancellor
virtually exploded as more and more people sought these new writs as an
alternative to seeking redress in the common law courts.
Equity is a jurisprudence of discretion. The basis of equity is the administration of grace, or discretion, to do justice. For equitable purposes, though, "justice" does not mean carrying out the law in any strict sense, but to do what the judge thinks is fair, regardless of the law. Consequently, equity is largely a matter of personal moral conscience freed from the restraints of law.
Equity is a jurisprudence of discretion. The basis of equity is the administration of grace, or discretion, to do justice. For equitable purposes, though, "justice" does not mean carrying out the law in any strict sense, but to do what the judge thinks is fair, regardless of the law. Consequently, equity is largely a matter of personal moral conscience freed from the restraints of law.
Equity spells out that law should be just. Justice in
civil judgment requires that judges not apply the law in a partial way. That
is, justice imposes a duty on every judge not to be a "respecter of
persons. Naturalists believe that law is divine meaning it comes from God. God
is not a respecter of persons, which means that His law applies uniformly to
all people. This is also the standard for human laws. Accordingly, uniformity
in the application of legal rules is a necessary element of justice. A law that
is not uniform is not just.
APPLICATION OF EQUITY IN THE KENYAN LEGAL SYSTEM
Section 3(1) (c) of the
judicature Act of Kenya states as follows: The Jurisdiction of the High
Court, Court of Appeal and the subordinate courts shall be exercised in
conformity with:
subject thereto and so far as those written laws do not extend or apply, the
substance of the common law, the doctrines of equity and the statutes of
general application in force in England on the 12th August, 1897, and the
procedure and practice observed in courts of justice in England at that date; but
the common law, doctrines of equity and statutes of general application shall
apply so far only as the circumstances of Kenya and its inhabitants permit and
subject to such qualifications as those circumstances may render necessary.
Article 2(5) of the constitution of Kenya 2010
provides for the application of general principles of international law as part
of the laws of Kenya. Doctrines of equity are widely practiced in many
jurisdictions and thus can qualify as general principles of international law.
Article 10(2) (b) of the constitution of Kenya also
provide for the application of Equity among other principles and values of
national governance. These national principles and values shall bind all
persons and state organs. Article 20(4) (a) provides that the courts shall
apply equity in interpreting the bill of rights which all persons are entitled
to enjoy to the fullest.
Article 47 of the constitution of Kenya 2010 provides
that every person has a right to fair administrative action. Article 48
provides that every person has unlimited right to fair trial. These two
provisions are in the spirit of fairness which is a constituting characteristic
of equity. Article 159(2) (d) provides that courts shall strive to deliver
justice without undue regard to procedural technicalities. One of the harshness
of common law which equity came to cure was the rigidity of the law and its
procedures. It follows then that article 159(2) (d) is in the spirit of
doctrines of equity.
JURISPRUDENCE AND MORALITY
INTRODUCTION
The place and function of morals in the law has always
been a focal concern of legal and political philosophers. As a result most of
today's jurisprudence is centred on the question of morality and the law. The
schools of thoughts in jurisprudence which bring out the full extent of the
disagreements are legal positivists who seek to maintain a conceptual
difference between law and morality and natural lawyers who reject the idea of
a separation between law and morality as examined below:
Natural law school of thought
Most scholars in this school of thought have asserted
that legal obligation is more in the nature of a command depending not on
reason but on authority. In this respect, law resembles religion more closely
than ethics for religion also appeals to authority in the sense of what is
decreed by God.
Most natural law thinkers have reduced morals to a
series of imperatives comparable to rules of law but these have often involved
a close interconnection between religion and moral obligation.
Natural law thinking has therefore afforded a moral
justification for existing social and economic systems and their legal systems.
They have argued that what is the law is based on a higher law dictated by
reason from an authority and so it is also what the law ought to be, positive
law acquires a sanctity that puts it beyond question.
Natural law thinking at its core tries to provide a
distinction between what is law and what ought to be law. Its principal claim
is that what naturally is, ought to be. Some natural law thinkers and their
views on morality are discussed below:
PLATO
The basis of ethics and other knowledge is in absolute
values to which things could appropriate. Among the absolute values he
identified include justice. From Plato's teachings, justice is an absolute
value at which law should aim and law which can be bought with wealth is not
thereby just.
For Plato ideas like justice, virtue and beauty were
ideals but had greater ethical value than even the customs of particular
regions. He located ethics in universal values which transcend the
particularity of local practices and thus offered the prospect of a common
ethics among different communities.
ARISTOTLE
He sought to identify values through the use of reason
but unlike Plato he found that the values are glimpsed outside of this world
(metaphysical) and not within the world.
Sources of values lie in nature that is human nature
which has elements of change as well as stability.
He posited that man is a social being who needs social
groups in order to flourish but that he was also a political animal who could
participate in politics. Politics however is only possible within a city state
or polis where one can find political debate. Thus for Aristotle, creation of
polis allowed man to fulfil a potential which remained unfilled whilst he lived
in small family groups.
He concluded that polis was not a threat to the small
community but essential for the fulfilment of man's purpose. This reasoning led
him to conclusions about the law appropriate to a polis for example man being a
social animal must have laws appropriate for the rearing and education of the
young. Aristotle regards natural justice as a species of political justice.
THOMAS AQUINAS
He deployed Aristotle's philosophy in an effort
to reconcile secular and Christian authority at a time when the Pope's
authority was being undermined by want of a theological stance in respect of
the exercise of secular power.
For Aquinas natural law is merely one element of
divine providence: a participation in the eternal law which orders all
creation. Its contents comprise principles of practical rationality by which
human action is to be judged as reasonable or unreasonable.
According to him we are guided towards tenets of
natural law by nature, they point us towards good as well as certain specific
goods. At the heart of his interpretation of natural law is the basic notion
that good is done and evil avoided and therefore we ought to pursue some
specific good.
According to Aquinas, laws which conflict with the
requirements of natural law lose their power to bind morally. Therefore a
government which abuses its authority by enacting laws which are against the
common good forfeits its right to be obeyed as it lacks moral authority.
JOHN FINNIS
He asserts that anyone who tries to explain law makes
assumptions willingly about what is good.
In his book, Natural Law and Natural Rights, Finnis
points out that the development of modern jurisprudence suggests that a
theorist cannot give a theoretical description and analysis of social facts,
unless he also participates in the work of evaluation, of understanding what is
really good for human persons and what is really required by practical
reasonableness.
LEGAL POSITIVISTS THEORIES
Legal positivists endeavour to combine the view that
we can know things only through observation and rationalism. The fundamental
principle in this school is the antagonism towards metaphysics. Legal
positivism is concerned with the law as is and therefore attempts to identify
the key features of the legal system that are posited by legislators, judges
etc. Legal positivists therefore argue that there should be a distinction
between law and morality.
A valuable starting point is discussing positivism is
the summary of five main views associated with legal positivism provided by
Professor H. L. A Hart in his essay 'Positivism and the Separation of Law and
Morals'
1) That laws are
commands of human beings
2) That there is no
necessary connection between law and morals
3) That the analysis of
legal concepts is worth pursuing distinct from sociological and historical
enquiries and critical evaluation
4) That a legal system
is a closed logical system in which correct decisions may be deduced from
predetermined legal rules by logical means alone
5) Those moral judgments
cannot be established as statements of facts can by rational argument,
evidence, or proof.
Positivists share the view that the most effective
method of analysing and understanding law and the legal system involves
suspending moral judgment until it is established what it is we are seeking to
explain.
SOCIOLOGICAL SCHOOL OF THOUGHT
Being cognizant of the definition of morality as the
distinction between good or bad, one can determine or conclude that the
sociological school of thought denies that morality and the law go hand in
hand.
The sociological school of jurisprudence studies law
in its socio-historic context. It is based on what society needs and desires in
contemporary social conditions and concerned with the actual sources, effects
and functions of law upon attitudes, behaviors, organization and powers
involved in the maintenance of a particular society.
This school is therefore concerned with the law as is
in a given society at a given time.
The origin of law according to the thinkers in this
school lies in sociological factors, human conduct and social conditions
obtaining in society.
VON JHERING
He states that the origin and ultimate purpose of the
law is social control and therefore law is an instrument for serving society.
He asserts that although law has a coercive character
it also has the binding character of social conventions and customs.
Law therefore has a social background and each society
must find a law which best suits its purposes and aims. Law which is divorced
from social realities and conditions is inadequate and incomplete therefore
refute the idea that there is such a thing as eternal law.
ROSCOE POUND
He asserts that law must serve a particular function
in society and the ultimate purpose of the law is social control. Law is not
merely a set of law or legal order but it is a process of balancing conflicting
social interests.
He posits that law's function is to adapt to the needs
of a particular generation or period since the law is not based on any absolute
ideals but on the views and attitudes of a particular society at a given period
and time.
MORAL LAW IN THE CONSTITUTION OF KENYA 2010
Under the preamble of Kenya’s Constitution, the people
of Kenya acknowledge the supremacy of the almighty God who is the creator of
all things. The constitution therefore recognises the existence of a higher law
than human made law. This is the eternal law of God. It therefore recognises
the existence of higher moral principles which have validity and authority
independent of human made law.
Article 10 of the Constitution lists the national
values and principles of governance to include inter alia, human dignity,
equity, social justice, equality, human rights, non discrimination and
protection of the marginalised. These values and principles of governance have
a moral force in the constitution and can be termed as moral law
The Bill of Rights under chapter four of the
constitution is the fountain of moral law in Kenya’s legal system. It
recognises and seeks to protect human rights and fundamental freedoms of
individuals, groups and communities. For instance, the bill of rights
recognises the right to life under article 26, freedom from slavery, servitude
and forced labour.
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