Sunday, June 10, 2012

law and justice

Irrespective of the Law’s origin – that is, whether Law was, however improbably, agreed upon by a democratically-minded number of parties to some sort of social contract or treaty, or whether it was imposed by means of force is not altogether relevant to those born into a society of laws – one is born into a pre-existing arrangement in which, in the case of a few, some degree of participation is encouraged and, for the rest, little more than an ultimatum is provided: cooperate or go to prison; indeed, often one is not even afforded the option of cooperating.

Those societies identifying themselves as Democratic enjoy the privilege of casting into irrelevance these questions of origin for the simple reason that Democracy subsumes within its inclusive robes each of the just mentioned extremes: If there were some original consent then, well, you see, it is democratic after all. On the other hand, if the law was imposed by brute force, well, the formula ‘might makes right,’ the democrat consoles herself, at least approximates a democratic eidos insofar as that formula is roughly equivalent to majority rule – that it is a majority of force over a majority of good sense, or of any other criteria for that matter, simply does not factor into the democratic equation.

The question of the law’s origin and basis is, however, relevant when it comes to the issue of the law’s reproduction, as well as, what amounts to the same thing, the reproduction and perpetuation of the society determined by that law.

While Law’s advocates define its contents in manifold manners, they do often agree upon a term to designate their intended rationale for the existence of law: Justice. To be sure, although it is often mistakenly confused for justice, law has always been secondary, ancillary, and merely supportive of the just. And, as such, must yield to this lest law obstruct its very basis of legitimacy.

While its elucidation remains contentious, justice, the etymology of which means ‘sacred formula’, is not altogether absent from the world of observable phenomenon. Law, on the other hand, where it is not nakedly serving the interests of those in power, serves at best as markers of the just - indicating the point, or points, justice reached before its manifestation disappeared from view. Of course, this is only one notion of justice - that is, justice as corrective. A more critical conceptualization of justice sees it not as a correction of harms after the fact, but as an arrangement preclusive of foreseeable harms in the first place.

When one reflects on how such an arrangement might be cobbled together, and then considers the etymology of justice as 'sacred formula,' it calls to mind the deceptively simple legal maxim salus populi suprema lex esto – the health of the people is the supreme law. Though construed in multiple and diametrically opposed ways throughout the millennia, an expansive interpretation reveals that, beneath its plaque and crusts, the maxim contains within it an emancipatory notion of justice that seems to be not only the actual content of the democratic form, but is, as well, the only truth of law.

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