Justice, Law, and Social Order: A Deep Dive
Justice, Law, and Social Order
The Essence of Law
The law, in its purest form, seeks to ensure that each individual receives what is rightfully theirs. This principle, often expressed as “giving each his own,” forms the bedrock of justice. The right is the object of justice, and it is through rightful action that justice is served. The ideal of social harmony is achieved when everyone possesses what legitimately belongs to them, fostering a balance in the distribution of social productivity.
The Lawyer’s Role
The lawyer’s primary duty is to serve justice. Their function is to discern and declare the law, ensuring its fair application. A corrupt judge distorts this function, not by changing the role of the judge, but by corrupting its essence. While the outward appearance of a lawyer’s actions might sometimes seem entangled with wrongdoing, their true purpose remains rooted in the pursuit of justice.
Law as Legal Obligation
The law, in its practical application, concerns the lawyer not in isolation, but in relation to specific cases. These cases often involve disputes over things or facts allocated to individuals as a result of social productivity, which are subject to actual or potential interference. The fundamental principle is the relationship between the holder and the thing held. This “relationship of belonging” is paramount in the order of justice. The thing is due to the owner because it is theirs, and the foundation of this “duty” is precisely the ownership of the thing.
Property Law and Its Imperative Nature
The term “mandatory” is more fitting for property law than “imperative,” as it stems from a power inherent in ownership. The essential characteristic of property right is its mandatory nature. This requirement arises from the “belongingness” of the thing. This exclusive domain, assigned to the owner, is rooted in their status as a “person.” A person governs their own being and extends their domain to their environment, establishing tangible and intangible relationships. This domain excludes interference by others, generating the need to respect this non-interference or to restore it in case of violation. Ultimately, the debt or obligation is based on the distribution of proceeds from social cooperation, allocating assets, functions, and services, establishing areas of ownership and attribution. This distribution, in turn, is based on the human person’s capacity to appropriate and dominate.
Title and Ownership
Since rightful action involves giving each individual what is due to them, it is evident that the right belongs to the creditor. The thing and the right are essentially the same. While the law is “due” because it is predicated of “thing,” things are distributed. It is the creditor who holds the right as their due, as the holder. The law is the thing “owned” by the creditor. The debtor also has a relationship with the thing, but not as a right, but as a correlative duty.
Defining Title
The “title” of the law is the certificate of right, signifying that the right belongs to its owner (the creditor). Examples include sale or donation in the case of property, or deposit or loan for the return of a thing. The title is linked to the thing as the “right thing” for each individual. It is the basis upon which the thing is due to the creditor. The title can be anything capable of producing the allocation of things, representing a power or control in action. Broadly, titles include contracts, laws, customs, acts of government, and human nature.
Types of Titles
- Human nature: The human person governs their own being and masters their environment. This mastery implies that their being is their own right, encompassing the natural rights of the human person, whose title is human nature itself.
- Contract: A manifestation of human control, often involving unilateral or bilateral acts of transfer or exchange, establishing the allocation of goods and thus the title of right.
- Law and acts of government: Distribute goods, assign roles and responsibilities, acting as a title of law.
- Custom: Holds the force of law and acts as a title.
The Extent of the Law
Declaring the existence of a right involves determining not only the title but also its “extent.” This includes characterizing and delimiting the intrinsic and extrinsic aspects of the law, defining the “thing” itself (quantity, quality, nature), the manner of ownership (owner, lessee, user), the legal powers of the owner, and the requirements and application of the law. The lawyer’s role is to identify and define the “thing” that constitutes the right, which can sometimes be complex, as in cases of inheritance division or unfair contract provisions.
Aspects of the Extent of Law
The extent of the law also encompasses the “how” – the kind or type of right (ownership, use, lease) and the way to satisfy it (e.g., in cash or kind), as well as the time period within which the thing must be given. In short, the extent of the law includes the definition of the right and the requirements and conditions for both its fulfillment and its use and exercise. The lawyer’s role is to determine and declare both the title and the extent of the law.
External Legal Relations and Social Projection
Rightful action operates within the social or interpersonal realm. A key characteristic of things that are right is their externality, meaning they exist outside the individual. While tangible things easily fall under this category, intangible things like positions or functions also qualify as external due to their social projection and impact on social communication and interaction. The external nature of a thing implies its susceptibility to interference by others, necessitating respect for non-interference or its restoration in case of violation. Things that are not subject to social communication and interaction, such as inner thoughts and emotions, cannot be considered rights.
Externality and the Limits of Social Dimension
The incommunicable aspects of a person do not fall under the purview of law, even though they belong to the individual. Totalitarian regimes err in attempting to reduce the entire person to their social dimension, neglecting the essential aspect of individual privacy.
Externality and Rightful Action
Externality also applies to rightful action itself, requiring effective non-interference or the restoration of a just situation. Unlike other virtues, the righteousness of justice is measured by the just situation itself, aiming for social harmony. Intention alone is not sufficient; effective action is required. This focus on the external situation has led some to argue for the amorality of law, claiming that rightful action without righteous intention can satisfy legal requirements.
Alterity and Intersubjectivity
Another essential feature of law is alterity or intersubjectivity, highlighting the relational nature of rights. Law is not solely tied to a single subject but requires two or more subjects: the right holder and the subject(s) against whom the right is held. This intersubjectivity signifies a duty towards the rights of others. Unlike moral duties, legal duties are linked to a power to require by its destination. The debtor has a duty to the creditor, who holds the right that creates the duty. This relationship is both oppositional and complementary, involving opposing legal positions (right and duty) that converge in the allocation of the thing.
Law as Relationship
A central theoretical problem is the entity of law. While the right is the “right thing,” the thing itself is not inherently right. Legality arises from the relationship between the thing and the holder, and the proper relationship that consequently belongs. This latter relationship formally constitutes legality. The relationship of belonging can exist without alterity, as in the case of Robinson Crusoe, who exercised control over his property without enjoying rights in a legal sense.
Legal Relationship vs. Constitutive Relationship
It’s important to distinguish between the constitutive relationship of law and the legal relationship. The legal relationship is between two or more subjects, based on the right thing. The constitutive relationship of law is between the thing and the person, with the objective of allocating the thing to its owner based on a legal title.
The Basis of Law
The basis of law precedes the title. It is the foundation upon which the holder can possess the title. It is not the cause of the title, but the reason why the subject can have the title. For example, the basis of a constitutional monarchy is membership in the Royal Family, while the title is the Constitution itself. The basis of ownership is human nature, which establishes the power to have dominion. The basis of law is not to be confused with capacity, which is a consequence of the foundation. A person can have the basis for property without having the capacity, such as a minor who cannot legally own property.
Obligation, Necessity, and Coercion
The obligation of law is necessary and unavoidable because it entails a system of sanctions and social control. This necessity is the essential feature of law, while coercion is a consequence, not always possible. The necessity of legal obligation means that society has resources to enforce the law in case of breach. These resources include enforcement, sanctions, coercion, preventive measures, compensation, and suspension or termination of legal relationships. All these are consequences of the necessity of legal obligation, aimed at enforcing it and defending its inevitability. However, not all involve physical force or coercion.
The Need for a Legal System and Coercion
The legal system and its coercive element arise from social necessity. Human society requires that each individual has their own for its development and preservation, resulting in social harmony essential for survival. This need is the foundation of the effective legal system and coercion. Giving each their due is not a convenience but a necessity for social peace.
Distinguishing between Right and Coercion
It’s crucial to distinguish between right and coercion. The legal system is a set of resources to ensure the effectiveness of law. The essential feature of law is necessity, while coercion is a consequence. The courts, law enforcement, and other elements of the legal system are not the law itself, but resources to guarantee it. This distinction is reflected in the concepts of validity and effectiveness of law. A law can be valid without being effective if the system lacks the resources to enforce it. The term “coercive” is more appropriate than “constraint” to describe this aspect of law.
Subjective Rights
A complete understanding of law requires addressing the relationship between law and subjective rights. Subjective rights are moral authorities or powers of the person in relation to something or someone, such as the powers inherent in property or fundamental freedoms. These powers can be reduced to three: the power to do (facultas agendi), the power to have (facultas possidendi), and the power to require (facultas exigendi). The power to require is seen as inherent in all rights, as the right holder is entitled to demand what is due to them.
The Shift from Objective to Subjective Right
The notion of “right” as a subjective right entered legal doctrine, replacing the realistic concept of law as the “right thing.” This shift, primarily attributed to William of Ockham, led to the substitution of one concept for another. In Ockham’s view, the right thing became the object of the subjective right. For example, property is no longer the house itself, but the right to the house. This shift raises the question of whether the objective and subjective notions of right are incompatible.
Reconciling Objective and Subjective Right
The objective and subjective notions of right are not necessarily incompatible. Intangible things, such as functions and powers, can be right things. In this sense, the subjective right is not separate from the legal right, but a specific case of it. Subjective rights are not a separate element of the legal order, but either a right itself or a manifestation of it. All rights, as something due, grant the holder the power to require their fulfillment. Therefore, subjective rights are not independent of law, but one of its manifestations.
The Legal System as a System of Duties
The legal system is not primarily a system of demands, as it might appear when subjective rights are placed at the center. Law is essentially what is owed by others. Social life, as postulated by justice, is primarily about fulfilling duties. The power to demand is a secondary dimension, arising when the demands of justice are not met spontaneously. Social life in accordance with justice is not focused on individual claims but on ensuring that each has their own, fostering solidarity and respect for human dignity.
Legal Relationship
The right, with its note of otherness, is a relationship between two or more subjects: the legal relationship. Since rightful action involves giving each their due, it implies two related subjects: the right holder and the duty holder. This creditor-debtor relationship is one of opposition and complementarity. The legal relationship is often understood holistically, encompassing the subjects, the basis of the relationship (the right thing), the legal bond, the content (rights, duties, powers), and the organizing principle or purpose of the relationship. It can be defined as a sector of society organized and structured for its purposes as a relation.
Equity
Equity is the art of harmonizing the implementation of law with other virtues governing human relationships. Justice cannot be isolated from the broader context of human relations and the common good. While justice demands giving each their due, other virtues like solidarity, benevolence, and moderation also entail duties. Equity harmonizes these demands, tempering justice with other virtues. This tempering might involve lessening or forgiving penalties, or delaying the fulfillment of obligations, based on considerations of benignity, solidarity, or moderation.
Equity and Accommodation
Another aspect of equity is accommodation. When it’s impossible to fully satisfy a right, equity seeks to compensate the right holder fairly, reducing their prejudice. This involves substituting strict justice with a fair compromise. The example of the 17 camels illustrates this principle, where an equitable solution is found to satisfy the will of the father despite the impossibility of strict adherence to his instructions.
Equity and Positivist Conceptions of Law
Positivist conceptions of law often consider equity essential. This apparent inconsistency arises from the separation of the thing and the subjective right, which allows for the conception of law as a mere formality. This formalistic approach, exemplified by systems of formal rights and freedoms, contrasts with legal realism, which emphasizes the actual possession of goods and the real exercise of freedoms. The historical injustices arising from legal formalism demonstrate the distortions introduced by separating the thing and the right.
William of Ockham and the Franciscan Dispute
William of Ockham’s notion of law as faculty or power arose from the dispute about Franciscan poverty. The Spiritual Franciscans argued for the use of things without any right of ownership. This claim is incompatible with the realist conception of law, where any fair use of a thing implies a right to it. To defend their position, Ockham separated the thing and the right, defining the right as an authority or power. He distinguished between ius poli (power under right reason) and ius fori (power to vindicate in court). The former, akin to natural law, was considered moral right, while the latter, akin to positive law, was considered true law. This separation paved the way for positivist theories of law, where law is seen as a system of rules enforced by the state.
The Legacy of Ockham’s Theory
Ockham’s notion of subjective right influenced subsequent thinkers, eventually leading to the complete replacement of the objective notion of right with the subjective one by Suarez. This shift gave rise to the concept of law as a mere formality, leading to systems of formal rights and freedoms detached from the actual possession of goods. This formalistic approach contrasts with legal realism, which emphasizes the actual enjoyment of rights and freedoms. The historical consequences of Ockham’s theory demonstrate the distortions introduced by separating the thing and the right, highlighting the importance of the realist conception of law as the “right thing.”