The central problem in jurisprudence is whether law should be according to justice or justice according to law. Lawyers are of the view that justice ought to be according to law as this would make the law certain and predictable. This view is in consonance with the view of the positivist school of thought about law. For instance, professor Hart, a core positivist is of the opinion that law is law whether good or bad so far as it has been validly enacted. He said that it is erroneous to declare a law as valid merely because it is vested on a structure of evil resulting in manifest injustice, to him; a validly promulgated law ought to be the basis of justice. Before Hart, Bentham and Austin had expressed similar sentiments.
Jurists argue that law ought to be according to justice and not the other way round. They hinged their arguments on the fact that what is justice in one place may not be considered as justice in another place. This is even so because justice unlike law focuses on the peculiarity and uniqueness of the individual cases and does not impose a one-off standard for the resolution of disputes. This view tallies with the ARISTOTELIAN notion of cumulative justice which is limited by time and place. Aristotle said that what is justice in Rome may not be justice in Athens. Furthermore, jurists say that a man who wins a case will say justice has been done while the man who lost the same case will likely bemoan his fate and say that there had been a miscarriage of justice. Little wonder, BLACKBURN J. declared in R V.RAND that justice must not only be done but must manifestly and undoubtedly be seen to be done. Similarly, ADEMOLA, CJN (as was then) unequivocally stated in MOHAMMED V. KANO NATIVE AUTHORITY that the measurement of justice is that of the common man present at the trial whether in his sight justice has been done or seen to be done. Also, jurists contend that law must be according to justice because some laws are totally immoral, evil and unjust. This coincides with the opinion of Professor LON FULLER who argued that for a law to be valid and command respect, it must contain certain characteristics which he tagged “the eight desiderata of law” encapsulated in the inner morality of law. He said that a law which is immoral and unjust such that it produces injustice is no law.
Notwithstanding, while it is generally acknowledged that justice can exist without law which is evidence in the concept of justice as an extra-legal standard which encapsulated in natural law, discretion, permissible relaxation rule and equity/good conscience, the question is can law exist without justice?
Generally, the society wants people to get they deserve. Thus, if a person commits an offence, the society expect that people should be sanctioned by the law and where a person has done no wrong, he ought to be left alone. Accordingly, the society is outraged when a person who commits a crime goes Scot free because of the message such would pass to would be wrong doers. Conversely, where a person who hasn't breached the law is incarcerated, the society is outraged because he has done no wrong and ought not be incarcerated. The foregoing finds clear explanation in the dubious concept of plea bargain under SECTION 14(2) of the Economic and Financial Crimes Commission (EFCC ACT) Act which the sitting Chief Justice of Nigeria (CJN) recently said to be foreign to our jurisprudence and should be abolished. Why will a corrupt politician who has fleeced the common wealth of the society end up with a minimal sanction as consideration for returning a fraction of his loot, while the common man who stole a mere handkerchief is incarcerated for years? Needless to say, this is injustice. However, it must be noted that the law often sees it fit to do something else sometimes with good reason and at other times without any good reason. Notwithstanding, if the purpose of the law is to attain justice and the same law provides for rules and principles which are adverse to the notion of justice, it suffice to say that the purpose of the law is been blatantly defeated.
In conclusion, while justice can safely exist without law, the same cannot be said of the law; since the law aims to achieve justice it cannot do without justice. Consequently, law without justice is a meaningless concept indeed.
Jurists argue that law ought to be according to justice and not the other way round. They hinged their arguments on the fact that what is justice in one place may not be considered as justice in another place. This is even so because justice unlike law focuses on the peculiarity and uniqueness of the individual cases and does not impose a one-off standard for the resolution of disputes. This view tallies with the ARISTOTELIAN notion of cumulative justice which is limited by time and place. Aristotle said that what is justice in Rome may not be justice in Athens. Furthermore, jurists say that a man who wins a case will say justice has been done while the man who lost the same case will likely bemoan his fate and say that there had been a miscarriage of justice. Little wonder, BLACKBURN J. declared in R V.RAND that justice must not only be done but must manifestly and undoubtedly be seen to be done. Similarly, ADEMOLA, CJN (as was then) unequivocally stated in MOHAMMED V. KANO NATIVE AUTHORITY that the measurement of justice is that of the common man present at the trial whether in his sight justice has been done or seen to be done. Also, jurists contend that law must be according to justice because some laws are totally immoral, evil and unjust. This coincides with the opinion of Professor LON FULLER who argued that for a law to be valid and command respect, it must contain certain characteristics which he tagged “the eight desiderata of law” encapsulated in the inner morality of law. He said that a law which is immoral and unjust such that it produces injustice is no law.
Notwithstanding, while it is generally acknowledged that justice can exist without law which is evidence in the concept of justice as an extra-legal standard which encapsulated in natural law, discretion, permissible relaxation rule and equity/good conscience, the question is can law exist without justice?
Generally, the society wants people to get they deserve. Thus, if a person commits an offence, the society expect that people should be sanctioned by the law and where a person has done no wrong, he ought to be left alone. Accordingly, the society is outraged when a person who commits a crime goes Scot free because of the message such would pass to would be wrong doers. Conversely, where a person who hasn't breached the law is incarcerated, the society is outraged because he has done no wrong and ought not be incarcerated. The foregoing finds clear explanation in the dubious concept of plea bargain under SECTION 14(2) of the Economic and Financial Crimes Commission (EFCC ACT) Act which the sitting Chief Justice of Nigeria (CJN) recently said to be foreign to our jurisprudence and should be abolished. Why will a corrupt politician who has fleeced the common wealth of the society end up with a minimal sanction as consideration for returning a fraction of his loot, while the common man who stole a mere handkerchief is incarcerated for years? Needless to say, this is injustice. However, it must be noted that the law often sees it fit to do something else sometimes with good reason and at other times without any good reason. Notwithstanding, if the purpose of the law is to attain justice and the same law provides for rules and principles which are adverse to the notion of justice, it suffice to say that the purpose of the law is been blatantly defeated.
In conclusion, while justice can safely exist without law, the same cannot be said of the law; since the law aims to achieve justice it cannot do without justice. Consequently, law without justice is a meaningless concept indeed.
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