Law and Justice

for

a global World
A Philosophy of Law and Justice

Mark Schar Dr. iur.

From Mai 2000/2005 onwards: All rights, including copyrights: Mark Schar (Walter Markus Schar), Dr. jur., Attorney-at-law mxia@xmu.edu.cn

Law and Justice for a global World

A Philosophy of Law and Justice

by Mark Schar Dr. jur.

ISBN 2-88362-002-8

Alpha Grammata Editions

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General Table of Contents I Anticipation of the Result

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A Analysis
II Initial Qualifications and Instruments of Analysis III Two general Remarks IV Traditional Concepts of Law and Justice

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B Synthesis
V Justice VI The Axioms of Law and Justice VII Ethics VIII Laws IX A brief reference to Methodology X Conclusion Bibliography

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Special Table of Contents

I Anticipation of the Result

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A Analysis
II Initial Qualifications and Instruments of Analysis A) Philosophy and Law 1) From Mythos to Logos Philosophy 2) First Philosophy or so-called Metaphysics B) Positioning of Law in the framework of Science and Philosophy 1) A Social Science - but in a category by itself? 2) Metaphysical subject applying to Law a) Ontology b) Epistemology c) Logic d) Language C) A point of Psychology D) A Structural Aspect E) Another Epistemological/Logical/Linguistic Aspect F) An Intellectual Risk or a point of Culture G) Conclusion: Law, a matter of Science and Philosophy H) Consequence: The meaning of the notion Philosophy of Law III Two general Remarks A) A practical look at the subject B) A political look at the subject IV Traditional Concepts of Law and Justice

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B Synthesis
V Justice A) Justice, the notion as such B) Universality of the principle of Justice C) Another remark on Natural Law D) Main concepts used in the context of Law and Justice 1) The Concepts as such 2) Comparison and General Appreciaton E) The principle of Justice as such 1) The Nature of the Principle 2) Reach and Extent of the Principle 3) The Origin of the Principle 4) Justice the Guarantor of Freedom and its Corrective for its proper sake 5) The Purpose of Justice Order, Peace, Security 6) The Orientation of Justice the Highest Good Logos The Divine Life 7) Justice, an Ideal? 8) Justice, a Natural Order another view of the Origin 9) A Rational Order 10) A Relational Order 11) An Aesthetic Order? 12) A Personal Order 13) From a Personal to an Interpersonal Mental State 14) Justice, Right or Duty? 15) Justice, an Agreement? 16) Justice, a Public and Institutional Order 17) Justice, a Means a Principle of Action 18) Justice, an End an Outcome, a State, a Condition a Principle of Existence 19) A Means, an End but also an Endeavor a Specific Principle of Action 20) So-called Kinds of Justice a) Internal and external (outer) Justice b) On the subjective and objective aspect of Justice c) General versus Specific Justice d) Distributive and Corrective Justice e) Social and Political Justice 21) Justice and Reciprocity 22) Justice and Friendship 23) Justice and Solidarity

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24) Justice and Utilitarianism 174 25) Justice and the Principle of Due Process of the Law, i.e. Impartiality, Openness, Objectivity and Responsibility 175 26) Justice and Truth 176 27) Synonyms of the notion of Justice 177 a) Fairness 177 b) Equity 177 c) Modern Uses of the notion of Law 179 d) Comment 179 28) Relative Aspects of Justice 179 29) Justice the Contrary of Arbitrariness (Willkr) 180 30) On Enemies of Justice 181 31) The Ambit of Justice 182 32) Harmony 183 33) Justice, a Sentimental Order? 184 34) Justice the Source of Law 187 35) Legitimacy of Laws, of Justice? 188 VI Axioms of Law and Justice A) The Axioms of Law and Justice as such B) Universal Legal Concepts 1) Basic Individual Rights Universal Human Rights 2) General Legal Principles a) Institutional aa) The Rule of Law Legality bb) Judicial Review cc) Recorded and Reasoned Decision Making dd) Legal Certainty Capacity of Enforcement ee) Non Retroactivity of Laws, in particular in Penal Matters f f) Functional Specification of Public Duties and Capacities, e.g. Separation of Powers gg) Res Iudicata hh) Due Process i i) Presumption of Innocence b) Substantive ` aa) Equality bb) Proportionality cc) Functionality dd) Good Faith ee) Pacta Sunt Servanda f f) Clausula Rebus Sic Stantibus

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gg) The Prohibition of Venire Contra Factum Proprium, the Exclusion of the Arbitrary hh) Comment 3) Exceptions of these Legal Concepts 4) Evaluation VII Ethics VIII On Laws A) Customary Law B) Statutory Law C) Specific Applications of the Principle of Justice D) A Form of Statements E) On Is and Ought F) Legal Laws and Scientific Laws G) Human Preconditions required by Legal Rules The Image of Man in Law H) Factual, i.e. Formal and Substantive Preconditions required by and of Legal Rules and the Question of Validity their Rational Aspect I) On the Binding Force of Laws J) Again on the Institutional Aspect of Law and on some other Defining Aspects K) Some ofther remarks on the Term/Word/Concept of Law And further Elements of a Definition L) On the Normative and thus Imperative Character of Law M) On the Authoritative versus Conventional Nature of Laws N) On a specific type of the emergence of Legal Institutions O) Law or Virtue? P) Summary IX A brief Reference to Methodology X Conclusion Bibliography

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Motto

Quite simple is the word of Truth and, that of Justice is not demanding scintillating demonstrations either. It carries in itself the necessary weight. But the word injustice is of itself ill and does indeed require wisely chosen means.
Polynices in Phoinissai (lines 469-473) by Euripides (around 409 BC)1

Translation by the author from a French rendering of the original Greek text. In the following translations by the author are either indicated as such or accompanied by the translated sentence in brackets. Other citations are original.

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I) Anticipation of the Result

Because it is so as the above statement says we can at once sum up what has to follow here by saying that law and justice are a kind of culture, a way of life, a mentality, which is also called civilized and which is the contrary of the lazy, the dirty, the ignorant, the arbitrary, of which the rule by the merely stronger or richer is but one example. Therefore it is not to be spoken of e.g. democracy and the rule of law etc., but at best, of the rule of law and after that may be of democracy, namely then and only then, when there are people who are actually capable to achieve the rule of law through it, which does not necessarily happen by advertisements and incessant talking. Worse, the latter is ever since a strong indication that it is just then the contrary, which applies. Such a culture requires that the basic principles of Civilization, Justice and Law are widely understood and therefore organically applied by everybody in daily life. Prosperity in Justice is the purpose of any community or society that has a claim to civilization. Justice includes, as we shall see, order, peace and security. Particular forms of government are but means to this end or instruments, which are supposed to achieve that purpose. If they dont, they are of no use, whatever glorious names they might carry. It is obvious that such a culture requires well-qualified, well-informed and basically well-intentioned people. Those do not grow on trees. There is no quick fix. Shortcuts, and be they accompanied by hefty professions of goodness, lead quickly to deception. People of such a culture have to be made aware, instructed and confronted with a certain amount of experience in the field. Then they can serve as examples and extend these values throughout society. That is a demanding task. Yet it underlies the law if its exercise does not only exist of empty words and an exaggerated dance around the golden calf.2 That may sound idealist. Yet on a broader level it turns out to be of rather practical, i.e. very real quality as a look into the newspaper quickly shows. And that which we call practical in every day life shall be dealt with here too.
2

This happens since antiquity to be the symbol for money (as values were then expressed in terms of heads of cattle, early coins often showing the head of a cow or a calf, e.g. Rupia, the name of the Indian currency, meaning cattle.

ANALYSIS
II Initial Qualifications and Instruments of Analysis
There are eight basic topics, which shall be mentioned before all else, as they position our subject in the fields of science and philosophy (A) and (B), as they have to do with its basic psychological (C) and analytical (D) aspects, as they refer to logical structures important for thinking about Law (E), and as they shed light on the intellectual risks surrounding the discussion of the present subject (F). Under (G) it is referred to a first conclusion and under (H) to its immediate consequence for the subject here. The present text concentrates on the question about the nature of law and justice in general, i.e. on their ontology. The aspect of the application of law and justice depends on that but remains a separate subject. A) Philosophy and Law The present considerations belong to the field alternatively called Legal Theory, Theory of Law or Philosophy of Law. The latter term allows us to qualify the Science of Law, as it is called in English. It carries also the name jurisprudence (Latin, for law and wisdom or science) and that is not always used synonymously with philosophy of law. While it may mean the equivalent of general theory of law it often relates but to the knowledge of legal clauses and the technique or method of their application. Our subject here requires something else, namely to take a step back of the former and to look at the general characteristics of Justice and the Law. That turns out to be not just thinking about the matter as a whole but to provide an ideal introduction into the subject of the Law and Justice and at the same time a summary of it. Thus if somebody asked for an utterly opportunistic reason for a look at that subject, it would be pretty obvious as many legal terms and concepts originated from here. How would e.g. a lawyer want to win a case if he did not know the origin and real sense of the terms and concepts used by him or by his adversaries?

1) From Mythos to Logos Philosophy We state here like a methodological motto that it shall be tried in all of the following not to pursue the rainbow of notions/concepts (Regenbogen der Begriffe, Nietzsche) nor the games with personified notions/concepts, e.g. as by German Idealism (Spiele mit personifizierten Begriffen, H. Arendt) but to stick to statements and concepts with as much empirical content (Peirce, Quine) as possible. Philosophy from Philo-sophia is ancient Greek and means literally love of wisdom or love of science. It is the search for knowledge. That means to ask in the most general and in the most special sense for explanations of beings, things and events in this world and of the world and to reconsider them from time to time and to ask for better explanations. Aristotle considered Thales (known popularly for the demonstration of the rectangular triangles in the Thales-circle) to be the first philosopher because Thales had refrained (ca. 2500 years ago) from mystical explanations of natural events and had started to ask for natural causes3. This development has been called from Mythos to Logos in younger times. 4 Mythos stands for songs, poetry, religion and story-telling. Logos stands for reason and science.5 We mention this expression, although it might seem a little pathetic as the philosophy of the generations after Kant became all of a sudden rather subjective and by that mythos was back, no more philosophy proper then. Since Plato and Aristotle fascination and astonishment have been considered to be at the root of philosophy.6 That leads to doubts and to the quest for reasons. Critical Thinking has therefore been considered an essential characteristic of philosophy.7 That critical approach has over a considerable time become more systematic and more methodical. It is
Aristotle, Metaphysics, book I (Alpha), 983b 20; There he said also that the Divine power should not be jealous of science as it were anyway also Divine, Metaphysics, op. cit. 983a; see also: Seneca, Questions about Nature, cited in: Waterfield Robin, The First Philosophers, Oxford University Press, 2000, p. 13 4 Nestle Wilhelm, Vom Mythos zum Logos, Nachdruck der 2. A., Krner, Stuttgart, 1975; see also R. Waterfields comment on Heraclitus in: The first Philosophers, subtitle: The Presocratics and the Sophists, Oxford Worlds Classics, Oxford/New York 2000, introduction, p. 20 seq. It is remarkable to see that the Occidental World has already seen this sequence twice: Mythos in Greece of old, Logos from Thales onwards, Mythos coming back into dominance in Rome with the 2nd century AD and again Logos in Europe from the Renaissance onwards. See Nestle W., op. cit. p.1ff. and e.g. p.19 5 That title was not meant as saying that religion had disappeared and science appeared but that scientific thinking grew and that the religious approach lost its appeal, particularly among the educated people, see: Nestle W., p.486 seq. 6 E.g. Aristotle, Metaphysics, 982b13 7 Russell Bertrand, The Problems of Philosophy, 1912, Oxford University Press, 2nd ed. 1998, reissued 2001, p.87
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such at the root of that which we call science. Critique for the own sake belongs not to its characteristics, wherefore so-called philosophical schools as the sceptics (e.g. Pyrrhon of Elis), the cynics (e.g. Diogenes of Sinope) or the nihilists (e.g. Nietzsche) tend to be considered exceptions, while methodical doubt of the style of Rene Descartes (the creator not only of the famous Discours de la Mthode but among other things also of Analytical Geometry), a controlled and disciplined doubt, is considered to be essentially of philosophical character, e.g. by Bertrand Russell.8 Despite two centuries and more of utter selfcriticism (e.g. by Pascal, Hegel, Nietzsche, Wittgenstein among others) it is obvious that such an approach of Philosophy is aimed at the increase and improvement of knowledge. But even if one chooses to doubt this, there is a wonderful explanation of its benefit. It is B. Russell who said (with F. Bacon and I. Kant): Philosophy may claim justly that it diminishes the risk of error, and that in some cases it renders the risk so small as to be practically negligible. 9 That seems not only to be true but that alone were worth the endeavor. Philosophy has developed considerably since Thales and blossomed into various special fields of science, many of which seem to have forgotten from where they came. It looks as if we could distinguish two stages in its development up to now, the turning point as mentioned being Kant. Up to Kant one looked mainly outwards, despite e.g. disciplines like ethics, i.e. one looked mainly at nature and asked What about the world? Kant in the succession of Locke, Hume and Rousseau did the same but closer to man by putting him into the center of the epistemological consideration. 10 Objectivity had been the main orientation during this first stage. After that one started to look more inwards and stressed all of a sudden the value of human existence and subjectivity.11 It was in particular Kirkegaard, the Danish theologian cum philosopher, who was bitterly
8 9

Russell, The Problems of Philosophy, op. cit. 87 Russell, The Problems of Philosophy, op. cit. 88; Francis Bacon had mentioned this aspect in the preface to his Instauratio Magna and Immanuel Kant has cited that as motto at the beginning of the second edition of his Critique of pure Reason (1787): Of myself I say nothing; but in behalf of the business which is in hand I entreat men to believe that it is not an opinion to be held, but a work to be done; and be well assured that I am laboring to lay the foundation, not of any sect of doctrine, but of human utility and power. Next I ask them to deal fairly by their own interests, and laying aside all emulations and prejudices in favor of this or that opinion, to join in consultation for the common good; and being now freed and guarded by the securities and helps which I offer from the errors and impediments of the old way, to come forward themselves and take part in that which remains to be done. See: The Philosophical Works of Francis Bacon, ed. J.M. Robertson, reprint of the translation by Ellis and Spedding, Rutledge, London 1905, p.247 10 i.e. by attributing to him, not to the matter observed, the central role (the famous comparison to a kopernikanische Wende, summed up in: Kant, Kritik der reinen Vernunft, Vorrede and Einleitung first and second edition 11 Not so new in fact even then, as Petrarca, who helped to start that which we call Renaissance, seems to have complained already that man inquired the whole world and the heavens but forgets to think of himself, of his own personality and soul.

disappointed by the lectures of Schelling he had heard in Berlin and the then omnipresent philosophy of Hegel, who was at that time dealt with as offering a rational system of the whole world. Kirkegaard concluded that there may be a logical system but not a rational system of all existence and that the subjective thinker is not a scientist but an artist.12 Carnap, the great logician, duly called all that in the 20th century a form of poetry. 13 Kirkegaard went on to stress the importance of the consideration of ones existence and influenced philosophy with that inward turn (e.g. up to Heidegger and also the newer French philosophy). One school of thought could not cope with that and remained dedicated to objectivity. That is the school which, following in the footsteps of the Pragmatists and the Empiricists, is now called Realism 14 and Analytical Philosophy, stressing today among others syntactic and semantic considerations oriented to a Philosophy of Science, thus picking just those subjects from First Philosophy i.e. Metaphysics (see above), which seem to fit with an objective approach.15 It is such vicissitudes of development that lead the off-springs forget from where they came. Science is Philosophy. It is even literally the same word (again just in two languages, one Latin, the other Greek) Wisdom/Science, and Philosophy is the one and same endeavor to an objective look at all there is, be it man or nature, i.e. as said from mythos to logos. In the case of the philosophical discipline of Ethics it might at the limit only mean as objective as possible. Philosophy does not stand beside the applied sciences nor is an exclusive philosophy of science 16 really to be sought after as e.g. Husserl, Russell, Carnap and many others thought. 17 Or, that would mean a total yet limited reformulation of the whole Philosophy/Science, an endeavor which becomes understandable if one takes into consideration that which seems to have become a totally muddled field in the 19th and 20th century. If it is meant as a specific philosophy of the Natural Sciences, the same applies, as all of them participate in
Kirkegaard, Sren, Gesammelte Werke, Diederichs, Dsseldorf/Kln; 1957,58, Abschliessende unwissenschaftlich Nachschrift zu den Philosophischen Brocken, Abteilung 16, Bd. 2, S. 55 13 Cited in Hannah Arendt, Vom Leben des Geistes (The Life of the Mind, Harcourt, NY, 1977), 2nd ed., Piper, Munich, 2002, p. 18. Yet he, Neurath, and the whole Wiener Kreis went on to search again for a unified system of all sciences just as much criticized Hegel had done, again in vain. See to that: Mormann, op. cit. p.83 seq. 14 That name Realism is the modern term used for that mainly Anglo-Saxon school of thinking related to empiricism. It is not to be confused with the old realism denoting one position in the struggle around universals (see below) and opposed to nominalism, that term still very much in use today in its original meaning 15 One can find other qualifications for that, e.g. Pragmatism (e.g. Peirce) and Neo-positivism (e.g. Carnap), see: Wiehl R., Geschichte der Philosophie in Text und Darstellung, Reclam, Stuttgart 1999, Introduction (Einfhrung) p. 20 16 Thus in fact, but not in the sense of the totally muddled meaning of the words philosophy of the time, philosophy of philosophy a so-called pleonasm 17 See e.g. T. Mormann, Rudolf Carnap, Beck, Munich, 2000, p. 38
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the endeavor started by Thales and Aristotle. Proof were the fundamental contributions to the core of First Philosophy e.g. by the science of newer physics (see below). Yet as understandable as that separation of a so-called Philosophy of Science may be, it bears a slight risk to become one-sided. It is quite clear and uncontested that Aristotles First Philosophy was the name he used for the search for the basic principles of scientific thinking. It is obvious that the science of Logic, which originated in its core is also at the very core of todays Philosophy of Science and it is more than clear that all of science needs to study, develop and forever adjust carefully its main principles and basic sets of tools (tool, Greek organon, the title of Artistotles basic work on First Philosophy). So that which calls itself Philosophy of Science and thinks to be something apart, might tend to show a lack of attention e.g. to the study of language, which goes beyond syntax and semantics, the basic tool of communication, inquiry and interaction in nearly every scientific field and e.g. to the study of interpretation of facts and texts, impossible to ignore in any inquiry interested in factual truth. Of what use could the careful collection of facts be if one were unable to properly understand, name and position them? That were then indeed no more Philosophy nor Science proper but a new rather awkward kind of Mysticism despite tons of technical stuff. Philosophy is taught at Universities as is Law or Medicine etc. and since natural science has developed also as Mathematics, Physics, Biology or Chemistry etc. At least since Immanuel Kant one asked therefore for its role and position as a prerequisite, an auxiliary or a neighbor to other sciences and since the considerable success of natural sciences and the growing self-confidence of its representatives even as a poor neighbor. The latter seems, to us at least (but with Kant), to be rather inadequate and it might show up in ignorance of prerequisites, in inadequacies of appreciation and in analytical shortcomings, i.e. in the quality of science. Neither systematically nor historically can it be doubted that that which we call Science is Philosophy. Science is mostly of the applied kind but all of a sudden and rather unexpectedly it may produce insights of the most profound kind. As said, an example is furnished by the far-reaching teachings of modern physics with the relativity principles and quantum mechanics for the field of ontology and epistemology. Today one could mention at least the increased attention of philosophers to questions raised and insights provided by younger cognitive science and neurological sciences and the latters renewed interest in the human self, the soul. Is it surprising that there are fundamentals of human philosophical and scientific activity and that all fields of them may contribute to a reconsideration or rearrangement to them? We think that to be utterly normal and desirable. Anything else would indeed provide a rather strange picture.

The philosophical question to be asked by any science is that about its place among other sciences, its specific prerequisites, its contributions to First Philosophy and how it compares to the basic principles of First Philosophy, an everlasting project, started by Aristotle, as is well known. That means e.g. circumspection, contemplation, analysis and synthesis. It is then but normal, that the mentioned modernist endeavor by the cited new development led in particular to the development of the branch of Logic and to the analysis of scientific methods, such contributing substantially to the everlasting project of a First Philosophy, i.e. the question after the prerequisites and elementary principles of all knowledge. Every single branch of science requires such considering that which was and is called first philosophy (i.e. metaphysics) either totally or in part. We shall exemplify that in the following. It remains the task of Philosophy (pure) to care for the fundamentals, i.e. for the first philosophy (metaphysics) in particular and for the whole in general, i.e. the endeavor to look through and to analyze the findings of the various fields of applied philosophy (science). As the body of knowledge in various sciences has become very complex it has turned out to be unavoidable that the special fields try themselves to contribute to their appraisal and reappraisal under the broader title. That is precisely what happens here with regard to the matter of Law and Justice. We do not philosophize as to talk about values but to become valuable men said the same Aristotle.18 That can in no way be questioned here as we find ourselves forced to underline it for all scientific disciplines but it puts the philosophical/scientific endeavor into perspective and hints at a particular quality of the philosophy of law. We shall come back to that.

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Aristotle, Nicomachean Ethics, book II.2.1

2) First Philosophy or so-called Metaphysics Since Aristotle Philosophy is divided into a so-called First Philosophy and its applications. He was the first not only to systematically develop different philosophical fields, which have become sciences since, i.e. beyond common sense,19 but also to see that there are fundamental considerations to them all.20 He called that First Philosophy destined to study basic principles and causes which were presupposed in applied sciences and no more being dealt with there. He thus pursued a project that had been begun by other Greek philosophers before him, i.e. to find most general notions/concepts, to which all the others could be reduced. Thus he wanted to study the being of being as such and the nature and essence of things and events.21 That became Metaphysics, ancient Greek: ta meta ta physika i.e. that, which is behind nature due to a historical accident as it was positioned behind his work on physics, when Aristotles works were reissued in about 500 AD.22 It may have been so named because the meaning that which is behind nature appealed to people, not in an Aristotelian sense but in a more mystical, i.e. less philosophical, one. That is therefore to be distinguished clearly. It is uncontested that First Philosophy asks generally for the first reasons and causes of all being, nature and and existence. While this seems to point foremost to ontology it has long been common understanding that Metaphysics includes traditionally mainly the following four fields: Ontology, which inquires into the matter of being itself. Psychology and Anthropology etc., i.e. all that which inquires into the human person and soul Theology, which inquires into a divine being. It is usually added here that this means rational theology and not that kind of theology, which deals with revelations and the irrational. That concerns the proper study of theology, which includes also aspects of rational dealings with the irrational Cosmology, which looks at all that in context

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Aristotle, Metaphysics, 981b; One is invited to ponder the thought about the relativity of the notion common sense. Is it the one of the schoolboy or the one of the professional? How many things are to be understood intuitively? 20 Aristotle, Metaphysics, 981b, IV book, 1003a 21 seq. 21 See e.g.: Aristotle, Metaphysics, 1003a (book IV) 22 Kunzmann/Burkard,/Wiedemann, DTV-Atlas der Philosophie, a condensed yet highly valuable Encyclopaedia of Philosophy, 10th ed., Wuerzburg 2002,13, cited in the following as KBW, p. 49

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This is complemented by the field of Logic, which deals with methodical, consistent and conclusive thinking and includes the so-called Elementary Theory about concepts, judgments and conclusions and the so-called Theory of Methods dealing with methods of inquiry and procedures of proof. 23 Yet Methodology does not properly deal with Logic but appears often somehow as an application of it. Thus it represents a field in itself. Neither Ontology nor Logic can be separated from the field of Epistemology (which is the Theory of Knowledge) or from the Theory of Language either. They are closely intertwined. And, here opens a new aspect. Epistemology has been the subject of human study since Socrates, Plato and Aristotle. How do we observe the world? How can we acquire knowledge about it and about ourselves? Naturally Descartes, Locke, Hume and Kant come to mind in this context and Russell in younger times. Aristotle also opened the subject of understanding and interpretation, i.e. hermeneutics. How should knowledge come about without understanding? That seems impossible. Immediately we see that this aspect of understanding and interpretation belongs prominently besides the title of epistemology if not under the same. While Aristotle considered in his Psychology (psyche i.e. the soul) all souls, of humans, animals and plants, it appears as an omission in the above fundamentals today not to mention the field that studies all living beings, animals, plants, the living environment of man, i.e. Biology in the broadest sense. The same applies to the basic study of inanimate matter, Physics. Their findings are fundamental as they find application in many other sciences. That applies in particular also to Mathematics including Geometry. They may be more fundamental than other sciences but they also appear as applications of the fundamental fields mentioned above which all happen to be human-centered, in fact like the old trivium (i.e. threeway, the basic set of mainly 3 initial courses of the old universities) to be language and thinking centered.24 Sometimes the so-called Theory of Science is linked with Epistemology. In fact more than one branch of First Philosophy/Metaphysics has to do with that, in particular Logic, Ontology and the Theory of Language. It is sometimes regarded as a subject in itself (see above). Ethics was considered fundamental by Aristotle, as we saw above. In one strand of thinking it is linked with Theology, as we shall see below.

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KBW, op. cit. p. 49 Including Grammar, Logic and Rhetoric; the following Quadrivium (four-way) of old, comprising the disciplines of Astronomy, Arithmetic, Geometry and Music, all four were on the contrary understood as being figure and counting-related.

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A properly adjusted list of the fundamentals making up the First Philosophy today includes: Ontology Psychology /Anthropology Theology / Ethics Cosmology Logic Epistemology including Hermeneutics/Interpretation Theory of language Theory of methods Theory of Science may be mentioned in that list too but as it happens it seems to be a modern and probably temporary parallel endeavor (see above)25 One can take whatever science there is and there will show one or several of these fields to apply in an important way. The whole can obviously be regarded as a fundamental theory of science as it concerns the fundamentals of philosophy, i.e. the first philosophy, and science the branching out of it. Yet as said Philosophy of Science is today often used in a narrower sense referring only to natural sciences and studying things like laws of nature, induction etc.26 B) Positioning of Law in the framework of Science and Philosophy The science of Law and Justice is now to be positioned in the above framework. But before we can do that we first have to consider that subject matter a little closer.

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It shall not be omitted here that the widely learned John Locke suggested a threefold order of all knowledge. The first concerned physica, i.e. philosophy of nature or ontology namely of all things physical and spiritual, the second practica, i.e. methodology and ethics and the third semeiotike i.e. semiotics and logic, see: John Locke, An Essay concerning Human Understanding, ed. Woolhouse, Penguin Classics, London 1997, Book IV, chapter XXI, p. 634 seq. 26 See e.g. Bird A., Philosophy of Science, London 1998

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1) A Social Science - but in a category by itself? The three new disciplines, which originated mainly during the 18th and 19th century, Sociology, Political Science and Economics, are destined to consider only empirical facts. They are in newer classifications of sciences called Social Sciences. The science of the Law however is older. Law was studied already at least by the ancient Indian, Greek and Roman cultures and together with theology, philosophy and medicine it formed the classical program of universities during the Middle Ages. It studies also empirical facts but it has to qualify them and to make specific conclusions from such qualifications and further layers of qualifications and decisions may come on top of that. The aspect of correct reasoning is also here as important as the appraisal of empirical facts. As we shall see, one school of thinking does however treat law in the sense of a social science, others dont. As there is not much law necessary if there was only one being one can say that law deals indeed with social facts. It concerns human relationships and it concerns matter, events and living existences, positions and interests under the aspect of human relationships. While directed at even relations it has also to care for troubled relations as well. Therefore it cares for the avoidance and the resolution of human conflicts. It is usually based on a common consent (agreement) among people in a state, the instrument of rules being in the foreground. Such it deals with rather specific facts, situations and events, namely those, which involve (at least in the end) humans and rules among humans (see above). And, it deals with the specific nature, consideration, development and application of these rules. There is no shortcut to the law as there is none to mathematics. The complexity of the practical aspects of systems of rules applying to a multitude of facts happens just to be too great. It is also a fact that the aspect of quantification has become prominent in sociology, political science and economics. Mathematics and in particular statistics are applied to them. While law concerns all facts, which may be considered relevant under its purposes, quantification does not apply to it in the same way. Law has always studied the effects and the preconditions of rules, i.e. political science, and continues to do so, sometimes with the help of the new discipline. Economical questions and insights show up in and around its elaboration and application ever since.

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Law, a term, which includes that of Justice, as we shall see, is an academic discipline, as it collects, analyses, qualifies and orders all knowledge related to its main subject on a rational (systematic and methodological) and verifiable basis. It is therefore a science. It is however not an exact science. It seems to be closer to the cultural sciences according to the classification of Windelband 27 and Radbruch 28 , traditionally called humanities (Geisteswissenschaften), also by Dilthey29 or E. Cassirer30. But Dilthey said: Nature has to be explained (referring to sciences), mind and soul have to be understood (referring to humanities). (Die Natur erklren wir, das Seelenleben verstehen wir).31 Law has to understand, but then it has also to explain as it has to evaluate in an ascertainable and objective manner. Such it straddles these two categories. Noll calls it a science of action (Handlungswissenschaft) because it refers not only to facts but to the evaluation of facts in the light of other facts, legal rules and norms 32 . Still Windelband makes another distinction: natural sciences search for general rules and laws and others like the humanities search for facts, mostly historical ones.33 According to such a distinction law would belong to the first group but it concerns not descriptive laws as in natural science but prescriptive ones, which refer to an ought (see below). Not only does it deal with a specific form of rules but it deals also with a specific, often institutionalized form of the application of rules to specified classes of facts. It has developed its own rational and verifiable methods. At its core it concerns dealing with value judgments. All this implies language in a qualified manner, i.e. in its instrumental, methodical and one could say technical application. Its use and understanding, its interpretation, play a qualified role. Yet Law interprets not only language but all relevant behavior, actions and events. There is a list of criteria of science, which mentions the following four points: 1) orientation to truth, 2) duty to understand and to explain 3) duty to supply reasons 4) duty to establish inter-subjectivity.34 W. V. O. Quine even said: Logic, like any science, has as its business the pursuit of truth.35 Law is naturally committed to understanding, explaining and to reasoning. While the last point should probably better read objectivity, which is not necessarily the same as inter-subjectivity,
27

Windelband W., Geschichte und Naturwissenschaft, Rede zum Antritt des Rektorats der Kaiser-Wilhelm-Universitt, Strassburg, in: Wilhelm Windelband, Prludien, vol.1, Mohr Tbingen 1924, p. 136-160 28 Radbruch Gustav, Einfhrung in die Rechtswissenschaft, ed. Zweigest, 13.A., Stuttgart, 1980, p. 15, 23. 29 Steenblock V., commenting Dilthey W., Das geschichtliche Bewusstsein und die Weltanschauung, in: Philosophische Meisterstcke, Reclam, Stuttgart 1998/2004, p.134 30 Cassirer Ernst., Zur Logik der Kulturwissenschaften, 6.ed Darmstadt 1994, p.22, 56 et seq. 31 Steenblock zu Dilthey. op. cit., p.134 32 Noll, Peter, Gesetzgebungslehre, Hamburg 1973, p.20/21 33 Windelband, op. cit. 34 Sandkuehler Hg/Ed, Enzyklopaedie Philosophie, Meiner, Hamburg, 1999, under: Wissenschaft 35 Quine, W.V., Methods of Logic, 4th ed., 1982, p.1

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in particular not with respect to science (see below), it is related to the first point referring to truth. The science of Law is also committed to both inter-subjectivity and objectivity and to truth. But its end is Justice, and the persecution of truth is but a means to that end. That may be the clearest distinction compared to all other sciences. It not only combines elements of both cultural and natural sciences but its end is different of both. Thus it is a science apart. By that the aspect of qualification shows always up, less often the aspect of quantification. It is the qualification of facts not only in the light of other facts, but also in the light of such rules and often again of those in the light of other rules, which are specific to the science of law. An example: The fact of a non-delivery of goods has to be seen in the light of all the facts surrounding a contract of delivery, those have to be seen in the light of the clauses of the contract. If questions of its interpretation occur, these may have to be seen in the light of the articles of the law of contracts, and if questions of their interpretation occur those articles may have to be seen in the light of the whole law of contract and, those in the light of the constitution, sometimes also of international law. It is clear that constant training in this respect tends to qualify also rather well for the qualification of facts in general. And the study of the Law and its application teach in an exemplary way the risks and risk-structure of our rule-based societies and economies. At least three of all these characteristics we do not see applying in other sciences to the same extent. Law is therefore an independent discipline, i.e. one in its own category. That is not only due to its long history, but also due to the specificity of its subject and methods. Yet it is worth repeating that law deals with human relationships. These are social facts. Law is besides the science of History not only the oldest but by far the most developed and empirically confirmed science in that field.

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2) Metaphysical subjects applying to Law If we ask now which of the above subjects apply to the study of Law and Justice it shows at once that it has a link to Ethics and that it requires the knowledge of all of them but in particular those of: Ontology Psychology Logic Epistemology including the theory of Interpretation (Hermeneutics) Language Theory Theory of Methods Methodology is of utmost importance in the matter of law. Yet it concerns mainly specific methods and methodological steps which are part of specific studies. There are myriad of them in all sciences and we have not yet seen a convincing summary or generalization of them all. There are also many different ones to be found in specific legal subjects. The methods of communication, reasoning and of legal interpretation are of particular interest. They go beyond the theory of language and are to be mentioned here below. Psychology is a special field. We shall deal with it in one preliminary consideration and under the title the image of man in Law Logic, which is naturally of fundamental consideration in the Law, does not appear here in its pure form, i.e. as mathematical logic, but more in applied forms. We shall deal with it here but mostly intertwined with considerations on language. Furthermore we leave open for the time being the dealing with Ethics and its link to rational Theology but we shall come back to that later.

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a) Ontology Ancient India said that there is only one fundamental cosmological principle, the all-enclosing Brahman, which includes also Atman, the individual soul, which is part of it (ca. 2500 BC, recorded in the Upanishads ca. 800 BC, explained again e.g. by Shankara ca. 800 AD)36. Most essential traces of that can be found in the West, i.e. in the whole philosophy of Greece and particularly e.g. in Parmenides37, and in the East.38 Heraclitus (ca. 550-480 BC) saw the movement and the contrary in and of all things, i.e. contrary to Parmenides, who held all to be one and therefore unmoved and unchangeable, and spoke of a Logos as a law and a principle of process directing the change and dynamic in the above wholeness.39 Plato built that out by saying (in his Simile of the Sun): That which gives the objects of knowledge their truth and to the observers mind the power of knowing is the eidos (idea, form, universal, principle, plan, design) of the Highest Good.40 Such we shifted from oneness (mono monism) to two-ness (duo dualism).

Radhakrishnan S., Indian Philosophy, 2nd ed. London/New York 1954, vol. I, 163 seq. 169 seq., vol. II, 445 seq., 533 seq., 595 seq., see also: Sandvoss, Ernst R., Geschichte der Philosophie, 2 vols., DTV, M[nchen, 1989, vol. 1, p. 77 seq. 37 G.S. Kirk, J.E. Raven, The Presocratic Philosophers, Cambridge University Press 1957, 272282; but see also e.g. Heraclitus, Plato etc. 38 e.g. reflected in Taoism 39 See e.g. J. Barnes, The Presocratic Philosophers, Rutledge 1979, reprint 2002, 58/59; Hussey E., Heraclitus, in: The Cambridge Companion to early Greek Philosophy, Cambridge University Press, ed. A. Long, 1999, 91-93 R. Waterfields comment on Heraclitus, op. cit., p.36/37; KBW, 33 It is easy to see the Old Indian ideas in Thales and Parmenides, yet Heraclitus sayings might reflect the same as the Indians spoke of Atman (the human soul) being Brahman and vice versa, using sometimes an embodiment (i.e. a Lotos) in their explanations enclosing Atman, which was said to be directing the world (see e.g. Chandogya-Upanishad 8.1.1-5 and Bhagavad-Gita 4.4.24). Heraclitus was probably not aware that Parmenides thinking referred mostly to the idea of Brahman, while his thinking referred to the observable world of movement within it (e.g. embodied by that Lotos), thus entirely corresponding to the specific structure of old Indian thinking including Dharma. 40 Slightly amended translation by the author, from D. Lees second translation of the text Politeia, usually cited as The Republic, Penguin Classics, London 1974, reissued 2003, 508e

36

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There are by that in fact four aspects to be distinguished: - The one and all-including Whole - Logos (the highest Good or Divinity) - The recognizable World of movement - Man the individual Soul41 the Observer That has been the framework of thought within which man and philosophy have acted ever since. Kant came up (in the 1780ies) with the first view again but combined it with a highest Good, the latter not for epistemological reasons but for ethical ones.42 He said: The conditions of the possibility of our experience correspond to the possibility of the objects of our experience. 43 That corresponds in its general meaning to the conditions to gain knowledge correspond to the conditions of the objects of observation. When under the aspect of gaining knowledge the observer and the object of observation are subject to the same conditions, it is fair to conclude that observer and object are of some same set and that is monism again. So we have a cosmological view where we can speak of oneness, two- and three- or four-ness. Then we have an epistemological view where we distinguish observer and object and a life-science-view where we can distinguish mind and body (monism and dualism, in one or the other respect). We leave out here the consideration of distinctions between mind and soul and so on, much discussed in the past. It should not be given too much consideration to the flaring up time and again of discussions of and critiques at these distinctions. They have to do with the situation and the context of the observer. As man set out (during the Renaissance via Descartes up to the Enlightenment) to study the functioning of the human body it made certainly sense to distinguish mind and body. If one has to deal with wellness or mental illness and the likes, it seems to make sense to view both of them (body and soul) together again, which means to become monist again. Ontological or epistemological fights across these lines make thus no sense.

41

When we say soul here we use in the modern sense of the self (selbst) or the me (Ego, ich) but also in the sense of the ancients, i.e. Latin anima from animus (wind) or Greek psyche (breath). 42 Kant, Critique of pure Reason, (2nd ed.1787, called B), B 832 B 847 43 Kant, Critique of pure Reason, (1st ed. 1781, called A), A 111

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We see immediately that ontology and epistemology are directly linked. We anticipate here a thought with belongs to the latter: It is not so that the distinction between the object (the thing in itself) and the image we get from it was false. But the assumption that we may know more of the latter than of the former seems questionable. As long as we talk of sensedata (B. Russell), i.e. signals received from the object, may we really know more about the signal than about the object? Signals seem as external as the things from which they are reflected. As soon as we talk about the intellectual processing of the signals by our mind, we talk about something totally different, that is, of our given and acquired abilities to deal with such signals (sense-data). If we think that we create time and space that turns out to be true to a certain extent, as these sensations and the distinction between them seem to be utterly human, but if we think to create this in fact one ultimate reality ontologically, we are wrong, as Einsteins special theory of relativity strongly suggests. There is however to be added one aspect, which refers to the facts of consciousness and to the mind. If an object of observation does have an inner life, not only like electrons circling around a nucleus of neutrons and protons but more like e.g. a mind, we partly understand it as in the case of e.g. an animal such as a dog, but never fully. The same applies to the minds of our fellow humans (And what about our own? one would be tempted to ask.). So there is an aspect of the thing in itself, which may remain hidden to us. We remember Leibniz, who thought (with many Ancients, e.g. Thales, Giordano Bruno) the whole world to be living, to be made up of myriad of little minds called monads. In that sense such inner aspect of the whole would remain indeed hidden for us. As said, Ancient India considered one elementary cause/basis to be the immutable essence of the world and our soul to be part of it. The manifold empirical sensations, e.g. physical objects, were often exuberantly considered to be but illusions (a view called Avidya) 44 . The same showed later up in ancient Greece, i.e. in the teachings of Parmenides.45 Plato still followed to some extent a similar line, insofar as he considered an immutable realm of eidos (ideas/forms), yet independent of us, at which the observable things of this world only participate. Such an ontological approach is called objective Idealism, idealists in philosophy being considered those, who think that it takes the participation of man to constitute the world. All facts are subjective. Realists hold that the world exists also without man, i.e. that there are objective facts. Aristotle, Platos student, esteemed his teacher highly but found nevertheless the theory of ideas not helpful to gain insight into the physical world.46 He saw the
44 45

Radhakrishnan, vol. II, 561-590 Kirk/Raven, op. cit., 278 seq. 46 Compare in this context Aristotles famous discussion of Platos reality of ideas, which goes throughout his Metaphysics, e.g. 988a, 1081a) seq., in particular 1086b and 1087a.

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essence or substance of things (ousia) to be found within them and created the well-known distinction between matter (Gr. hyle, Lat. materia) of a thing and its form (morphe/eidos, i.e. eidos, Greek, meaning in fact originally design, blue-print, plan; Latin forma). 47 , 48 Furthermore he distinguished between the substance and its accidentals (symbebekota), as e.g. the color of a table (which happens e.g. to be blue but could also be red, the table still being there).49 Platos view subsisted up to Descartes and Leibniz, both of whom were also called Rationalists. Today and particularly in the Anglo-Saxon world it is Realism that dominates. It has to be admitted that an Idealism, as described can indeed not be maintained. While it seems that e.g. something like colors are produced by our brain, not being a property of the objects under consideration, other facts like the moon or a mountain seem not to require our senses nor our brain for their existence. The world is also there without man. It is then the business of each observer to perceive them as he can and wants. While the Great Theory of the old Indian Risis (Sages) survives to this day, their solution to treat the observable empirical facts and events (the world of movement) as illusions does not seem required by it. Could they not have seen that also these are part of the whole and appear as expressions of it, yet maybe somehow secondary to souls? They did according to Radhakrishnan, by distinguishing different degrees of reality.50 Such empirical facts need not at all be explained away. But all that does not mean that man were not necessary to receive, record, understand and interpret may be even to generate these sensations (sensedata) reflected by the empirical world, its existences, things and events. So there is in this sense 1) the empirical world of Matter and 2) the spiritual world of our Minds. But philosophers like Bertrand Russell and also e.g. Karl R. Popper still agree with Plato that there exists a third world, 3), which Russell does not call the world of eidos (ideas or forms etc., as Plato) but the world of Universals. Lets look briefly at Russells theory: He interestingly enough for us establishes it with the example of the concept of Justice. We shall come back to that below but here we take a simpler example. I am in my room is a statement that may make sense. Russell says that we perfectly know that I exist and that my room exists. But does in exist? It denotes a relation, which holds between me and my room. It does not exist in the same sense as I and my room. But the relation in is something real as well, which we can understand. If we would not, we could not understand the sentence I am in my room. Yet that relation does
Aristotle, Metaphysics, book VII, 1033b 1034a See: Hannah Arendt, Vom Leben des Geistes Das Denken (The life of the mind. Thinking, Harcourt New York, 1977), Piper, 2nd. Ed. Mnchen, p. 109; ; that could make the reading of the famous distinction Substance and Form changing its sense into Substance and Design, where the subsequent distinction Substance and Form could still make sense, as e.g. in a view that compares Design to the approach, Substance to the actuality and Form to the consequence 49 Aristotle, Metaphysics, 1025a 31-36 50 Radhakrishnan, vol. I, 199
48 47

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not exist in the world of matter. It has nothing physical. It is between physical tings but in a more abstract sense. But does it exist in the mental world? Russell finds that this is not the case. In fact it seems to follow from the Realism described above, that the relation in holds without one single human mind thinking of it, or being able to conceive it.51 But by changing the example to an apple is in a room, one could reply that neither room nor apple care about the relation in. But would they care if man were there observing it? The answer is, no. But one could also say that in is a word of our language with its particular sense and meaning as all the other words of our language. It is us men, who invented these words for the meanings which we, men, conceive. We do not have to isolate that word in. It belongs to all the others in the same sense. Language is said to belong to the realm of the mind. Seen under this aspect also that word in belongs to it. It follows that a stone may still be considered to be there without man, but universals like relations, may be made by us, as human ideas. They would as sense in the human mind not exist without man. We try to demonstrate, why the latter seems true: Occidental Philosophy quarreled abundantly about universalia. Plato had opened that problem. His example is bed. He claims that a) God made a bed, i.e. a bed in itself in nature, the b) Carpenter made a bed, and c) the Painter made a bed in his picture (see to all that: Politeia, 597b). Plato then goes on to state explicitly: God then created only one real bed in itself in nature (Politeia, 597c). The latter is a mere assertion, a hypothesis, not supported by reasons. That shows that Plato has capitulated from the start before the difficulty of the question he had asked. It is grossly misleading and it has bewitched occidental thought ever since. That bed, which is made by God according to Plato is in his view an eidos (idea, form) or as said a universal.

51

Russell, The problems of Philosophy, p. 50/51, 52 seq.

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That view triggered the famous Middle-Age discussion, along the questions raised by Porphyrios (ca. 300 BC, referred to by Boethius, 480 524 AD): (a) Do universals only exist in thoughts? (b) Or, do universals really exist? (c) If the answer to b) is yes, are they tangible? (d) If the answer to b) is yes, are they intangible? William of Champeau (10701121) answered: Universale est corpus (universals are bodies), answering a) with No, and b) and d) by Yes. He became called a Realist because he held universals to be real.52 John Roscellinus (10501124) said Universale est vox (universals are sounds), answering a) with yes and b) with no. He was called a Nominalist because he held universals to be but names.53 Peter Abaelard (1079 1142) said that universals refer to features of real things grasped by abstraction by the human mind in a concept (German: Begriff) in particular in its meaning (Latin sermo) or signification. That he held to be universal, saying universale est sermo (universals are meanings), thus a matter of the mind. He answered a) by Yes, b) by a conditional No and d) by a conditional Yes as he held the meaning of the words to have a universal but abstract reality. He was called a Conceptualist. He exemplified the distinction between the significant and the denominative aspect of a word with the word rose. If there are no roses one cannot call or denominate anything such. But a sentence like There are no roses makes sense as long as somebody is there, able to understand this meaning, its significance, i.e. in their minds.54 Platos example with the word bed happens to resolve the matter. The function and the main sense of the word/concept/name bed, refers undoubtedly to an installation for the purpose of sleep. Neither in Platos Gods bed, nor in the Painters bed, can one sleep. One can in the Carpenters. The latter is thus the only bed in the full sense of the word. The Painters bed is purely representative, i.e. aesthetic. Platos Gods bed refers to the meaning (signification) of the word bed alone. It is universal as long as there are humans who know what a bed is. A universal is thus a fact and product of the human mind, which was considered divine by Plato. Plato has to be reviewed in that point. His eidos bed is not real and it is not in nature. Nobody can sleep in it. It is in the human mind. Only the meaning in the mind/s can be called real in the sense of some inter-subjective mental reality. One could call such a view transcendental Realism.
52 53

Not to be confused with the modern use of that same term realism, see above See to that the theory of the Stoa below which allows a judgment of both. 54 KBW 75; Knowles D., The Evolution of Medieval Thought, London, 1962, 107 - 115

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b) Epistemology or Theory of Knowledge The Chinese Taoist Zhuang Zi (4th century BC) said: I by the name of Zhuang Zhou once dreamt that I was a butterfly, a butterfly fluttering happily here and there. I was so pleased that I forgot that I was Zhuang Zhou. When I suddenly woke up I was astonished to find that I was as a matter of fact Zhuang Zhou. Did Zhuang Zhou dream of the butterfly or did the butterfly dream of Zhuang Zhou? Between Zhuang Zhou and the butterfly there must be some distinction.55 Episteme (ancient Greek) is knowledge, Epistemology literally, the the science of knowledge. We said and saw above that Epistemology has a direct link with Ontology. The same applies to Logic and to the Theory of Language (linguistics). We mention it before Logic and language theory as it contains some constitutive terms of them. The term knowledge opens the link to hermeneutics and to the aspect of communication and interaction. We do not only acquire knowledge by considering the world outside our own mind, but also by communicating with other living beings and important here, with other humans. Observing the world is communicating and in fact interacting with the world. Observing humans and interacting with them is communication with human beings. The term communication reminds that of a theory of communication a title which blossoms today in many fields. One theory in the vicinity of law is the sociological theory of communication.56 It happens to cover a rather broad field of cultural and historical observations but also of psychological and ethical ones, as it also makes statements about how a communication should be conducted.57 If we look at it under the aspect of law and justice we might be interested in its methodolocical aspects of which it deals with the one of factual and intentional truth and with the aspect of understanding, intelligibility and agreement.58 Yet it cannot be the purpose here to delve further into that matter. Just a few basic characteristics shall quite informally be mentioned as they tend to be

55

See: Zhuangzi, Library of Chinese Classics, Chinese/English, ed. Hunan Publishing House , Changsha 1999, vol. I, p 39f; see also: Hansen Ch., A Daoist Theory of Chinese Thought, New York, 1992, 296 56 Several other disciplines and fields happen today to deal with a theory of communication, one of them being Linguistics, including Semiotics, as suggested or developed by Ch. S. Peirce, F. de Saussure, Ch. W. Morris, others are psychology, anthropology etc. 57 See e.g. Habermas Jrgen, Theorie des kommunikativen Handels, 2 vols., Suhrkamp, Frankfurt a.M., 1985 58 See: Habermas as cited, vol.1, p.413

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encountered by anyone who wants to be understood. 59 A communication of some substance should consider being: (a) (b) (c) (d) (e) (f) (g) (h) - clear and consistent (i.e. indubitable, without contradiction, determinate) - concise yet complete - distinct, understandable and intelligible (in principle out of itself) - purpose oriented and conclusive - true, - based on correct facts and/or rules and referring to them - supported by reasons and references - identified with regard to the sender and to the recipient

These criteria require not much comment. They speak for themselves. One might however find that e.g. complete and intelligible seem to be included in conclusive. Yet it is the practice which shows that e.g. a documents content can appear as conclusive but turns out neither to be fully intelligible nor to be complete. The aspect of understanding (a communication) involves the science of socalled hermeneutics (Greek hermeneuein = to understand, to comprehend). That field not only deals with the question of understanding facts, events, documents etc. but it deals also with the additional question that sometimes the mere observation or reading is not sufficient but that an interpretation turns out to be necessary. There is hardly another field that has more often to do with interpretation than that of the law. There are many clear and distinct methods in this regard, which belong to specific legal fields. Here we mention just some of the most prominent aspects: First to be mentioned are the four well known interpretative criteria which have been shaped by legal practice ever since: (1) (2) (3) (4) - grammatical, - systematic - historical/genetic - teleological

59

These aspects are not alien to legal methodology around formal matters of communication such as legal documents, judgments, briefs, decrees etc.

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The grammatical aspect refers to the understanding of the language of a text, e.g. a rule and one could also say to the prime characteristic, shape or texture of a fact. The systematic aspect broadens the field of consideration and points to the context of the fact under consideration, e.g. further facts or a rule, such as a law, further laws, a constitution, etc. It could also be called to refer to the context in its space. These two criteria lead most often to an appropriate understanding. Yet sometimes no answer can be derived from them and one has to ask further: What did the originators of a text, e.g. an author, a parliament, have in mind? as to elucidate a meaning, i.e. to ask what the origin or history of a fact looks like. That is the historical/genetic aspect. It could also be called to refer to the context in time. Underlying these three aspects is the one referring to the question after the purpose or function of e.g. a rule, which is the teleological aspect (Greek telos = purpose, aim). Quite often that is clear from the beginning but sometimes it is hidden and has to be searched for. All these aspects help to open the necessary logical space which allows seeing the essential characteristics of a fact. As a methodological rule it is useful to look always at all these 4 aspects as it can happen that one might think to understand perfectly yet in the end it might turn out that nothing was further from the truth than that. In legal matters also the result oriented aspect shows up. Often it is the first one to come to mind. It shall not be dominating an interpretation. Yet it is but natural that one is aware where one is going and considers the e.g. effect of a decision before it is taken. It is also a necessity e.g. under the aspect of the principle of proportionality. The general principle (5) of a hermeneutic circle encompasses the above four aspects. It means that a specific fact or event has to be interpreted in regard of the totality or entirety of facts/events surrounding it (applying to it) and that from this totality one has to go back again and to consider the special fact, events. I.e. one has to consider the fact under consideration in the light of its entire context and vice versa, that is, one in the light of the other. As to gain understanding one look at a matter is never sufficient. It takes at least two or more often very many, i.e. more than one (or many "loops" of) consideration. That means once or many times from the special to the general and vice versa. That does however not mean that a context could arbitrarily be put together. There has to be a reasoned link to every contextual element cited. The principle of the hermeneutic circle shows thus up in the above four criteria. They happen to be written-document centered but they can in a general way also serve when one deals with other facts. One cannot look properly at a dynamic world without having at least those interpretative aspects in mind. In matters of philosophy these criteria are of a similar importance as in law. Not only can it be the language of a text that poses problems but quite often a critique of a text requires the consideration of the appropriate context, factual, historical or teleological, as we shall see below.

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The mentioned four kinds or criteria of interpretation are not the only ones developed under the aspect of hermeneutics, yet others refer mostly to the interpretation of works of poetry and art. The ones cited here are those which have abundantly proven to be of use in practical matters and they happen to matter most generally. The principle of the hermeneutic circle is more theoretical, yet still of methodological use. Here is a didactic rule of the same kind as Occams razor about the economy of concepts and theories (pluralitas non est ponenda sine necessitate; i.e. one should not state more than necessary) 60 , which has directly to do with understanding: In dealing with fundamentals it is strongly advisable to use terms and concepts that can be understood at once or out of the text itself. It can be expected of nobody to manufacture at each instance afresh the necessary instruments of analysis, i.e. terms, concepts etc. Our language is rich enough to specify most of the interesting concepts. Moreover it can be a safety device against analytical errors in complex circumstances. This rule goes back to Albert Einsteins word: Science should be made as simple as possible adding, tongue in cheek, but not simpler. Lets call it Einsteins razor. Under the title of a theory of knowledge one asks what can be known and how it can be known. Plato dealt with that question in his Politeia. His approach underlies all later discussions up to the present, many of our actual concepts and it shows an exemplary manner and level of thinking. In his famous Simile of the Sun (Politeia, 507a) 509c) he considers: (1) That we qualify many single objects as beautiful or good etc. and then move from such a qualification of a multitude of objects to a unique quality as we then speak of beauty or goodness. The latter he calls eidos (idea or form), for which the Middle-Ages and then B. Russell in our time used the term universal and which appear to us as principles. Yet as said, etymologically it seems to go back to plan, design.61 (2) Plato then adds that particular objects are considered to be objects of sight but not of intelligence, while eidos (ideas/forms/universals) are considered objects of intelligence but not of sight.

60 61

KBW, op. cit., p.87 Hannah Arendt, op. cit. p. 109

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(3) He goes on to asking with what part of ourselves we do see what we see, and hear what we hear and answers: with the senses. (4) Having distinguished the aspects: particulars, universals (eidos) and sight and intelligence and addressed the senses, he then moves the consideration to the relationships between them and he mentions a designer of our senses (507 c), who gave us (a) the faculty of sight and (b) who made the objects visible. He such arrives at another distinction. This step shows that he anticipated the following. (5) He then asks the question if the visible and the sight need a third element to see or to be seen. The answer is yes, they need that what one calls light. (6) Where does it come from? It is clear that it is provided by the Sun. (7) The Sun, Plato concludes further, is not the sight. It is more precious, the cause of sight. (8) From here Plato moves to the reconsideration of the objects of intelligence and concludes per analogy that precisely as the observer (and the visible objects, so to speak) needs the Sun as an originator for the senses to function, the objects of intelligence and their observer (the mind) need also an originator. (9) He finds it in the highest good: Then what gives the objects of knowledge their truth and the knowers mind the power of knowing is the eidos of the good. (Politeia, 508e) (10) That good is more splendid and ranking higher than knowledge and truth as it is the cause of them. The good therefore may be said to be the source not only of the intelligibility of the objects of knowledge but also of their being and reality; yet it is not itself that reality, but it is beyond it, and superior to it in dignity and power. (Politeia, 509b)

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We might add that if we consider that the highest good is superior to the Sun and compare it to the mentioned term Designer of our senses and to Heraklits Logos, familiar to Plato, it corresponds, particularly in the language of the Ancients, to a Divinity or God. 62 We might add further that if a rational explanation of a Divinity were required, the above seems to be more adequate than many a reasoning by e.g. Descartes, Leibniz, Newton or others. Kant excluded a rational explanation in that matter.63 Plato seems to have supplied a thought-worthy counter-argument long before. This exemplary sequence of thought is referred here for the above reasons and because it is the cornerstone of Platos epistemological thinking, which we can approach via three other, surrounding similes. We find the exposition of his epistemology in the so-called simile of the Divided Line (Politeia 509d) 511e): Therein he distinguishes two worlds I) the world of knowing and II) the world of becoming. I) is the world of thinking i.e. intelligence, knowledge and (real) reality; II) is the world of the visible and of opinions. Both worlds know two subsections: I) is divided in A) pure thought and B) reason. A) deals with first principles (eidos, ideas, forms). Its type of thought is analytic, which follows from dialectic (careful circumspect discussion) and is again intelligence. It is the field of the philosopher. B) deals with images, assumptions and conclusions. Its type of thought is synthetic, which follows from science and is again reason. It is the field of the scientist, of the user of things, of the one knowing the functioning of things. It is a precondition to move to the realm of A). II) is divided in C) belief and D) illusion. C) deals with clear images. It is the field of the craftsman. D) deals with unclear images. It is the field of the artist, the painter, the poet. They know the least of reality according to Plato. By allocating a specific type of man to each section of his epistemological spectrum, Plato already supplied an exemplification. But he has more of that, which comes in the famous Simile of the Cave (Politeia, 514a) 521b). It compares the man of D) to a tied prisoner in a cave, the one of C) to a freed prisoner in a cave, the one in B) to a free man outside the cave, looking at shadows and reflections of reality and, the one of A) to the free man, looking at the Sun, i.e. into the eye of reality and switching to another level getting there the vision of the eidos of the good. The already mentioned Simile of the Sun (Politeia, 507a) 508c) supplies an explanation of the above: There is a Highest Good, a Logos, a Maker of reality as man needs a) the Sun to have matter existing as reality and to give visibility to the objects of sense, b) as to be able to recognize that. Furthermore, man
62 63

See Barnes J. cited above, 58/59, 123 seq. Kant, Critique of Pure Reason, B , op. cit., p. 620 seq.

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needs the Highest Good (the good in itself), c) as to get intelligibility of objects of thought and d) as to get the power of knowing of the mind. Having asked from where man gets his knowledge of things like e.g. Goodness, Beauty and Justice, Plato adds a poetic picture, i.e. an illustration, in his Galactic Simile64 (Phaedrus, 247d,e): Zeus with his horses leading a procession of the individual (immortal) souls, each compared to a team of a driver with two horses (one being appetite, the other courage, the driver reason), high up into the heavens to view the realm of the eidos, i.e. the real Reality and Truth, which is considered outside the heavens. There the soul turns around and contemplates them. From there it sees what Justice is and that it means self-control (see to that more below). Of these views the soul retains some recollections, which are awakened by its perceptions when it is embedded in life. Plato adds (Politeia 517b) the truth after all, is known only to God and (Politeia 518c) to look straight at reality and the brightest of all realities, which we call the Good. Platos concern in all that is that perception alone is not much, but that active, circumspect thought is required. We might remember in that context that from Antiquity up to the Renaissance intelligence and wisdom was often pictured by a head with two faces, one looking forward, the other backwards (like Janus the Roman God of the door posts and a happy beginning). When Plato speaks about eidos he speaks of intellectual and intelligible concepts and principles that can be so and so judged. He distinguishes them from the visible (against the intelligible) or particular, tangible, physical things. Once they are perceived no intellectual judgment seems immediately required by that. They are called liable to change and decay versus the intelligible eidos, which is eternal not liable to change or decay but to different judgments another kind of change. It is these intelligible ideas beauty in itself, goodness itself, numbers themselves etc. being big or small, heavy or light, hard or soft - that compel the mind to become active, to think, which turn the mind to the ultimate blessedness, i.e. to truth. To inquire into an eidos but also to inquire into a perception of a visible thing, to look behind it, to look at its context, that is the way from opinion to truth (Simile of the Divided Line), that leads up to the light (Simile of the Cave). The eidos found in the Simile of the Sun leads to the inquisitive way of thinking directed to all, wherefore Kants rendering of the thing itself requiring a thinking that goes beyond perceptions seems a correct generalization. While Kant stressed that we cannot gain knowledge about the thing in itself but about perceptions alone and that the purely intellectually gained knowledge is about intellectual matter, i.e. just Platos eidos, Plato found no necessity for such a
64

We tend to call it thus as Plato draws the picture of a path high up in the heavens, the Milky Way having been for the Ancients a dominant impression under undisturbed skies.

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limitation. He required universal questioning (critical) thinking with respect to anything. In praise of the intellect Plato says that the activity of the mind, thinking, inquiring, judging purifies itself and is more worthy than any eye, since it is the only organ by which we perceive the truth (Politeia 527 d).65 If anyone tries to learn anything about the world by gaping upwards or blinking downwards, I dont reckon that he really learns there is no knowledge to be had by such things nor do I reckon his mind is directed upwards, even if he is lying on his back or floating on the sea (Politeia 529 b). Plato requires thinking in addition to seeing. He does not imply at all that senses and perceptions are nothing. He says e.g. about a carefully drawn design: Anyone would admire the skill with which it was done, but would think it absurd to study it in the serious hope of learning the truth about the proportions (an important requirement for a work of art in Ancient Greece) such as equal or double (529 c). Heavens and heavenly bodies, day, night etc. are all visible but it is absurd to look for exact truth in them (530 b). Platos imperative is THINK, 2350 years before that became a fashionable statement in our computer world. 66 That was the required step up to the Renaissance, i.e. From Perception to Thought After thinking had been properly and abundantly exercised, e.g. during scholastic debates, one had learned how: a) to observe b) to compare c) to distinguish d) to question, to scrutinize e) to evaluate, to consider, and f) to judge, i.e. that which is called critical thinking.
We cite Platos Politeia (The Republic) according to the second translation of Desmond Lee in The Republic, Penguin Classics, 2nd ed, reissued, London 2003, although we do not follow him in calling eidos forms, as one cannot say: He has no form of justice. but very well He has no idea of justice. Therein in his commentary of the text, p. 259, D. Lee referring to Cornford, says Plato requires to train the mind to think abstractly. 66 That happened in the 1950-60ies, when computers started to enter the business-world, then lead by IBM, who popularized THINK on office panels and e.g. by the name of its in-house magazine
65

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Later Francis Bacon (1561 1626) realized that not just texts but all facts in the world were worth to be considered and moreover that one knew now to derive much more from them. And he saw the chances in such an undertaking. Therefore he asked, clearly referring to Plato, to deal a) empirically and b) methodically with them. 67 He could as well have referred to Roger Bacon (121592), who, in the tradition of empirically looking at nature, inaugurated by Robert Grosseteste (1168-1253) at the University of Oxford, had started to study light under the consideration of Geometry and had moreover clearly demonstrated the importance of methodology and of the empirical, experimental approach. 68 Grosseteste himself had been in contact with Albertus Magnus of the University of Paris, the teacher of Aquinas, who both participated in that upswing of natural philosophy. Obviously it looks as if F. Bacon had just reprocessed the findings of his name-sake of roughly 350 years before, yet now for his own time. The development since, not least the technical-scientific one, shows how right they were. It is because of this that Kant mentioned F. Bacon in the motto for the second edition of his Critique of pure Reason. 69 The step of the Renaissance (through the Enlightenment) can therefore said to be: From Perception to Thought and that in an Empirical and Methodical Way That had naturally been precisely the approach inaugurated by Thales and confirmed by persons like Hippocrates, Eratosthenes, Archimedes, Euklid and many others in Antiquity but buried afterwards by a new wave of mysticism. Some differences in the past between adepts of facts and those of the intellect seem to have omitted that both belong together and the further fact that theories cannot be correctly understood, evaluated and esteemed without the consideration of at least the fundamentals of interpretation, which means in this case the consideration of the practical and intellectual circumstances (context) by the time of their origin.70

67

Francis Bacon happened to sum up and formulate the new approach, e.g. in The Great Instauration Prooemium, in the second part of that work, called The New Organon Authors preface and para. CIV and CV, printed in: The Philosophical Works of Francis Bacon, as cited above, p. 241 seq.,256 seq., 290/91, where also the reference to Plato is to be found, see above. 68 KBW, op. cit. p. 77 69 Reference is made to Kants motto to the second edition (1787) of his Critique of Pure Reason taken from the preface of F. Bacons Instauratio Magna; For a brief encounter with Francis Bacon, see: Cranston Maurice, Bacon Francis, in: The Encyclopaedia of Philosophy, New York/London 1967, 235 seq. 70 The reigning discourse had changed.

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Famous Empiricists like John Locke or David Hume held: There is nothing in the mind, which has not been in the senses before. A Rationalist like Leibniz added however (with Descartes): except human understanding (reason) itself, i.e. innate ideas and epistemological structures.71 Kant built that out by trying to find a compromise between the two camps. In his famous Critique of pure Reason (1st ed. A,1781, 2nd ed. B,1787) he conceived a system of a prioriconcepts by which we gain knowledge. His text has many similarities with John Lockes famous An Essay concerning Human Understanding, which was the first work that had put epistemology into the center of the then scientific discussion. Kant was building an even more structured system by redefining and rearranging some same terms. And he abandoned the above main principle of the empiricists. He said: All begins with views (Anschauungen) and goes from there to notions/concepts (Begriffe) and ends with ideas (Ideen).72 Among the epistemological structures (a priori) innate in man he distinguishes: (A) Imaginations (Anschauungen) (B) Categories, (C) Schemes, and (D) Principles (Grundsaetze), like (A) time and space and (B) classes of categories like: Quantities; Qualities; Relations and temporal Modality, (C) counting and sequence (D) extensive magnitudes/intensive magnitudes; inertia/causality/interaction; probability/reality/necessity He famously distinguished also between sensations (Erscheinungen also called phaenomena) and the thing in itself (das Ding an sich also called noumena) and held that we can only gain knowledge about sensations (phaenomena) but not about things in itself (noumena). But he insisted with
71 72

KBW, 113 So fngt denn alle menschliche Erkenntnis mit Anschauungen an, geht von da zu Begriffen und endigt mit Ideen, Kant, Critique of Pure Reason, B 730

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the empiricists (e.g. John Locke) that categories alone lead nowhere, but that they require sensations as to help gaining knowledge. He found however categories and concepts (Begriffe) necessary preconditions and means to bring order and unity into the multitude of sensations constantly gained. He held that it is not the things that cause impressions on us (a term created 2200 years ago by the Greek philosophical school of the Stoa, also still with us today), but that man with his innate epistemological preconditions, structures the knowledge he gains about things, a reversal that he himself likened to a Copernican Revolution.73 Another famous distinction relevant for law and justice is the one between analytical and synthetic statements, developing Leibniz truths from facts and truths from the mind, in daily life both so often confused and at the root of errors. Synthetic e.g. is a typical empirical insight like: That circle happens to be red. Of analytical kind is a statement like: A circle is round. We have nothings to see together (syn-thesis) in the second example but we can simply break up (analyze) what we already know (that a circle is round), not requiring any new experience. Kant went then on to ask: How are synthetic judgements a priory possible?, and came up in the time of the beginning dominance of the mathematical method with the example 7 plus 5 = 12 and showed that 12 is not contained neither in 5 nor in 7 and yet we need no new empirical input to know that 7 plus 5 is 12.74 Therefore Mathematics among others provides examples how synthetic conclusions are a-priory possible. Kant held the above set of concepts not to be mere speculation but that these a-priory concepts are necessary preconditions to do science at all (Bedingungen der Mglichkeit von Wissenschaft berhaupt) and he tried to prove that. That led him further to build with these concepts a theory of science with mathematics, geometry and physics at the center. In the end he showed that also reason has its limitations as there are questions, which cannot be answered by reason because e.g. they are either too big for our cognition or that they may be too small, like the question referring e.g. to the infinity or finality of space or that we have no imagination (Anschauung), wherefore we cant have knowledge, i.e. there may be empty words. From here Kant joined the idea expressed by Aristotle, whose basically pragmatic approach he expressly shared, but also his outlook: In the end the purpose of philosophy is the betterment not of knowledge but of man, i.e. a moral one. Kants position and theory are called transcendental Idealism

73 74

Kant, Introduction (Vorrede) to the second edition (B) of his Critique of pure Reason, 1787 A critique of that would try to show, that the order and structure of natural numbers may have been learned by each child and that whatever number is mentioned that order and structure or definition stays the same, as well as the manipulations of it. Such the so-called a prioriknowledge, may just have been empirically learned before and is now in our memory as if it had been there ever since. It could thus be called of a relative a-priori.

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(transcendental versus empirical, in Kants case meaning dealing with preconditions to experience, and idealism as explained above).75 It has been said above that one cannot doubt Realism i.e. that man belongs to nature and to the world and that it makes sense to consider e.g. the earth existing independently of mans existence. The problem of our judgment has always been exaggeration. We either tend to revel in pompous pride or to hide in abject nullity. Kants and the empiricists descriptions of the ways how we gain knowledge is today on one hand to be refined on the other to be generalized, as it is of no use to enter into too specific distinctions without sufficient knowledge about them. We shall come back to that. Like Locke and Hume, Kant relied on Phenomena/Sensations (Erscheinungen), since Russell for analytical reasons called Sense-Data. We leave out here for the time being the analytical apparatus and its structures, which are supposed by Kant and others to order and treat these sensations. To speak of sense-data leads to the consideration of the ordinary set up of sensory means and that may indeed describe as well as any subjective, introspective, hypothetical speculation, what we might be dealing with in reality. Kant had used as an active force, the I think (ich denke) and Understanding (Verstand), Judgment (Urteilskraft) and Reason (Vernunft) as its applications. There are more words for such things, e.g. Mind, Intelligence, Thinking, Spiritual activity. Understanding and Reason are constantly intertwined and the others too. They are analytically hardly operable without an adequate definition. And then there are the problems with our instruments/tools of analysis. In this case it is words/language. Does the word spiritual correspond to mental activity? Does it include the aspects of feeling? It is obvious that man is born with and is able to develop abilities to gain knowledge. May be because childhood was not much in the general consciousness then, the past has failed to consider what happened with these innate abilities in the inherited structures, e.g. during the time between conception and birth and between birth and first recollections. Classical philosophical disquisitions based on subjective introspections start mainly from a later basis, except in a specific case. It was John Locke who had considered that by his famous statement that man had no knowledge at birth whatsoever, holding that his understanding was like a white paper or a tabula rasa. Some even left out that they had to learn to count empirically as young children e.g. with apples and oranges etc. and that e.g. all arithmetic has much to do with that, which is then duly stored in the mind. So the question is there again: What about the built up experiences and recorded memory in early human life and what about their
75

See to Kant and especially his Critique of pure Reason, here KrV B 25; Hffe Otfried, Kant's Kritik der reinen Vernunft, Beck, Mnchen, 3rd ed. 2003, p. 58

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use for gaining new knowledge? Has epistemology duly taken note of the results provided by other sciences in between? Is there, e.g. deductive, knowledge to be had from something we do not yet now? How do we learn? Why do we learn? What is learning? The most famous qualities that man possesses a priori are certainly his consciousness and his ability to think and to feel. Yet they are also developed according to empirical (outside) experience. While these have properly to be defined in particular regarding each other, they cannot be doubted. Therefore a transcendental Realism seems well confirmed. Transcendental, as said above, is used here in the sense of Kant, i.e. regarding the use of preexisting qualities and faculties, and not in the traditional sense, which refers to a relationship to the mystical world. If there are given typical structures of thought to make particular distinctions, like concepts and categories, we do neither know with sufficient precision nor for sure. Obviously their pertinence can easily be questioned. So only the most obvious and generally accepted distinctions make sense. What seems most certain is the fact that we are, as our languages show, able to make specific distinctions. They appear to us among others as the precondition of notions and concepts. Aristotle spoke of 10 basic concepts, which he called categories and he said in his Logic quite un-dogmatically that every single word would indicate a substance or a quantity, a quality, a relation, time, doing, position, having, suffering. That was explained as applying alternatively, i.e. one category per word, but these concepts have been applied cumulatively by most commentators, i.e. as a qualification according to each category for everything or every person. The Stoa on the other hand had found four basic concepts to be of use, namely: substance, condition, quality and relation. One has to be aware that by looking at this aspect one is back at the first subject of Aristotle's First Philosophy (Metaphysics) mentioned above. Aristotle gave there also the example of three so-called laws of thought (which belong in fact to the field of logic): The law of identity: Whatever is, is. The law of contradiction: Nothing can both be and not be. The law of the excluded middle: Everything must either be or not be.76

76

Aristotle, Mataphysics, 1005b, 1011b, 1051b, in the formulation by Russell

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Thomas of Aquino (Aquinas) spoke of basic concepts, which can be allocated to everything being as a predicate. He called them transcendentalia and mentioned, to be used in a cumulative sense, 4 of them: Actuality, existence (ens) Factuality (res) Entity (unum) Identity (aliquid)77 It appears that these concepts refer more to the laws of thought just mentioned than to the categories. They appear as basic distinctions, namely those necessary to grasp, to isolate and to identify an event as such before it can be further processed intellectually, analyzed, named and further distinguished etc. According to the mentality in the Middle Ages this was understood quite dogmatically. Kant basically dealt with the above mentioned concepts, which he called classes of categories but applied them not just to words as Aristotle but to sensations and sets of sensations (Anschauungen), as said above: Quantity, Quality, Relation, Modality, based on imagination and further completed by further concepts. He pushed the above laws of thought into the background and added his system with the additional class of categories called Modality like possibility/actuality/necessity (i.e. Potentiality). All this shall briefly been questioned. Kant e.g. spoke of our insight (Erkenntnis) as something composite (ein Zusammengesetztes), between sense-data and the operation of reason.78 It may be asked if Epistemology can e.g. on the basis of modern philosophy and brain science and e.g. on the basis of the above demonstration not become more distinct? Another point: As Aristotles approach indicates it may be that not concepts proper but interrogatives provide the best hint to fundamental distinctions operated by our thinking. They seem to operate more directly as they do not carry the risk of errors of qualification, unavoidable with the forming of concepts. Whether they go beyond language barriers, cannot been answered here. Aristotles categories can be conceived as answers to the questions: What? How many? How? etc.
77

The other two mentioned, verum and bonum are obviously of another kind and located in another context, see: Aquinas, Quaestiones disputatae de veritate, 1 78 Kant, Kritik der reinen Vernunft, Einleitung B, I; Hffe, Kants Kritik der reinen Vernunft, op. cit., p. 53; KBW, op. cit. p.83

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Which interrogatives do we usually use to make basic distinctions? The following are certainly among them: Who? / What? Where? When? Why? How? (Identity) (Locality) (Temporality) (Conditionality) (Quality)

With whom? / With what? (Relationality) Yet the latter may turn out to be a subset of How?, or even more basic a subset of Who?, or of What? Or it may then to belong to another chapter. The first five seem most often to occur in everyday life. As preconditions of them appear those that allow to make distinctions at all. That means to grasp something as a sizable entity at all. That concerns the laws of thought and Aquinas transcendentalia. On the level of interrogatives they refer to what? and how? Yet these two interrogatives do not immediately provide the four aspects mentioned. Does that mean that these are empty words or that we have to reconsider our evaluation of the interrogatives? We leave this demonstration at that elementary and incomplete level. It is sufficient here to elucidate characteristic aspects of distinctions by thought which happen to be at the core of the dealing with language (and Logic) in the context of law. But we add that e.g. Kant although presenting a rather coherent system of epistemology did not think it to be the end of development in that field but hoped for being seconded by others.79 Thus just one example of pertinent new knowledge for the above discussion shall be added here, which could indeed have helped to remove one or the other of old fallacies. That concerns the perception of color by man, i.e. by our visual apparatus, quite well known by now. It has at least four main aspects, involving a) physics, b) physiology, c) chemistry and d) psychology. Color has to do with light. Physics describes light within the framework of electromagnetic radiation, thus by wavelengths, energy and temperature. Only a tiny part of electromagnetic radiation is visible for man. It is called the visible light. It consists of waves with a wavelength of approximately 390 to 780 nanometers (billionths of a meter). They show in the color-spectrum appearing when one sends a ray of white light though a prism. Shorter wavelengths, i.e. more waves per meter, mean more energy and
79

Hffe, Kants kritik der reinen Vernunft, op. cit. P. 310

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thus a higher temperature, longer ones mean less energy and thus a lower temperature. It seems counterintuitive that blue is on the side of higher energy and red far away on the side of lower energy. The whole spectrum goes from violet (high energy) over cyanide-blue, green, yellow, orange to red (low energy). It seems again counterintuitive that radiation which is seen as white is in fact a mixture of all colors. Beyond Violet is Ultra-Violet-radiation (high energy) and below Red is Infra-Red-radiation (low energy), both not visible to the naked eye. In nature we receive the visible radiation as white light. When it hits an observed object e.g. a blue object (the thing in itself), that object absorbs specific types of color-wavelengths according to its specific constitution, in our example all color-wavelengths (i.e. red and green) except that for blue, which is alone reflected and hitting our eye. The perception of the spectrum of visible light is described by the sciences of Physiology and Chemistry. The retina of our eye contains photosensitive cells. These cells contain pigments, which absorb visible light. There are two classes, rods and cones. Rods sense in dimness various shades of grey, not what we consider as color. Cones do that. They come in three types. They each differ in their sensitivity to radiation. One reacts to short waves, very generally speaking to blue, one to medium waves, i.e. to green and one to long waves, i.e. to red. If all the possible variations of reactions of these sensitive cones are logically computed one can however speak of eight original colors, i.e. the above, including black and white. The nerve-cells leading from there to our brain allow then the generation of the sensation blue (all of which can be considered as a-priori-structures). It is obvious that the perceptions of these given elements can be different according to the outside conditions around a given object of observation (ambient light-shades, weather etc.) but also according to the particular constitution of us and our visual apparatus (feelings, shape, mood etc.). To that come the many difficulties referring to these sensations. That is more of the field of Psychology. It belongs to the latter that we perceive yellow, orange and red as warm colors, while they represent in fact low-energy or cool radiation. Blue, turquoise and white touch our feelings as cold, while they are in fact the result of comparatively high-energy and in fact warmer radiation. Such while there is only one physical-physiological theory of color, there are many different psychological or artistic color-theories.80 When a physicist or a computer-expert speaks about red he means orange-red. When an artist or a printer speaks about red he means magenta.81 That is not because printers do not know the theory of color,
See to all that: Color and Light by ACEPT W3 Group, Arizona State University, on: http://acept.la.asu.edu, Approximate wavelength (in vacuum) and frequency ranges for the various colors, on: www.usbyte.com, Color theory by J.L Morton, on: www.colormatters.com, Color Theory Overview by J.L. Ford, on: www.worqx.com, Schnellkurs Farbenlehre by H. Kppers, Dumont, Kln, 2005, for an artistic color-theory see e.g.: Itten J., Kunst der Farbe Studienausgabe, Maier, Ravensburg, 2nd ed. 1970 81 H. Kppers, op. cit. p.76
80

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they know it probably best, but because they have to adjust to the ambient conceptions and the type of mixing of the colors in use. There are many colorwheels around as violet seems to fit well besides red, i.e. a fit according to our feelings. It has however nothing to do with physics, because wavelength-wise they are far apart. Now, does the blue come from the observed object, as it happens to reflect radiation of that type, or does it come from the cones with the pigment concerned or is it the product of our brain? Is it out there or is it in here? Does only man have a visual apparatus? Younger philosophy is also full of open questions as it deals with logic and language theory as analytical philosophy, because it hopes to solve philosophical differences by analyzing statements. Such it circles around epistemology. It is among others G. W. Leibniz who had laid the foundations for such an endeavor. He invented the term logical calculus (Logik-Kalkl) and hoped to be able to express general ideas in universal symbols or terms of reason (Vernunftwrter). These should then make possible to be linked according to the example of mathematical rules. To resolve errors like errors in calculation and to solve disputes accordingly was the purpose.82 That explains the new approach to these matters. That has by now not (yet) led to solving e.g. legal disputes but it is of much practical use e.g. at the basis of most modern computer programs and solves many a problem there, as will be shown below. Over the past 100 years Philosophy also tried to widen the horizon of classical epistemology. E. Cassirer e.g. taking up Vicos idea of a scientia nova i.e. a new science, and referring to Herder, stressed the fact that the quest for truth should in principle apply to all kinds of phenomena/events and even postulated hypothetically an epistemology or ontology which would not merely look at what is being but at that which is becoming, i.e. to consider dynamic events and the future. 83 Yet that has always fallen under consideration insofar as they are methodologically ascertainable and directed to objective truth, other events just not being philosophy but maybe of the form of art and poetry, i.e. mythos (see
82 83

KBW, op. cit p.113 Cassirer E., Zur Logik der Kulturwissenschaften, Fnf Studien, 6th ed., Darmstadt 1994 e.g. in: Studie 1, Der Gegenstand der Kulturwissenschaft, p. 12 seq, 19, 23, 25; Studie 4 Formproblem und Kausalproblem, op. cit. p. 87 seq. Yet Cassirer has a specific way of using the word becoming (werden) as he finds Aristotles philosophy to cover that aspect. So it is not so clear to see where the problem is. He considered Science, Language, Mythos, Art and Religion to be mental and intellectual, i.e. symbolic, core phenomena or forms, where one phenomenon could no more be explained by or retraced to another of those phenomena or to something else. See also: Neumann on Cassirer, in: Philosophie der Gegenwart, UTB, Goettingen, vol.II, 2nd ed., 1981, p. 112; His reference to Vicos sciencia nova, which would create a new epistemology, a new science going beyond mathematics and logic, or creating a new one, has remained a project, a hypothesis, a dream (See: Cassirer E., op. cit. p. 9 seq.). Philosophy seems to have precisely therefore produced results because it limits itself to the study of the objectively comprehensible. It is in that sense disciplined thinking. And many things which in the past were believed to be incomprehensible turned out to be comprehensible.

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above), where the mentioned approach may also provide considerable results indeed but probably without ever touching e.g. the artistic essence of the matter. Heidegger on the other hand stressed the fact that man does not only observe, i.e. consciously and intentionally direct his mind to observable events, but that he touches them with all his senses. They form part of the world of his existence. Heidegger exemplified that with mans things and tools (German Werkzeuge) which he quite originally choose to call Zeug (corresponding to stuff in English), as they serve not their but mans own purpose.84 They are at his hands, for which aspect he invented a new word Zuhandenheit (something like Athandity). That is or may be so but it may also be that these existential aspects go beyond a methodological query in the above sense. It may however be of ethical and anthropological character and come thus via these disciplines back under the roof of philosophy. The modern mathematical/formal/logic approach led further to formalization and to specialization of the existing philosophical subjects. We briefly mentioned the groundbreaking influence of modern physics with the Theories of Relativity and Quantum Mechanics, the truly amazing consequences of which, all the old ones would have greatly admired. They cannot be further dealt with here. The other groundbreaking influence comes from the field of logic.

84

Heidegger M., Sein und Zeit (Being and Time), 16th ed., Niemeyer, Tbingen 1986, para. 15, p. 66 seq., p.68/69

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c) Logic The modern approaches by Frege, Russell, Whitehead, Wittgenstein, Carnap, Quine etc. led to formalization insofar as one left the intuitive approach of natural language behind and established the subject of Logic on a purely structural or formal basis, i.e. by symbols85 and truth tables (introduced by Wittgenstein)86 etc. These were used for the representation of language. They are filled in and conclusions are drawn from there directly, e.g. by referring to truth values (a concept introduced by Frege), without recourse to intuition or to empirical facts.87 That allowed in certain cases to specify the meaning of words, e.g. of and and or.88 It also allowed to functionalize the application of language (and thus of matters of thought) on machines, i.e. computers. Modern computer programs (e.g. the famous Java of today) are directly based on the works of the above authors. Freges approach was not only influenced by Leibniz but also by his intention to explain the science of Mathematics in terms of Logic but as it happened he also explained Logics in terms of Mathematics, not just for his use of symbols of the mathematical kind or similar to them but also by using e.g. the term function for his explanantions. 89 One speaks thus today of Symbolic Logic or Mathematical Logic.90 From that follows that the science of Logic is mainly interested in statements of the type of conclusions and it appears that the Epistemology of classical times (Hume, Locke, Kant etc.) was mainly concerned with statements of the type of establishments of facts. Modern Logic distinguishes between them and a third type of a conclusive statement. It says that tautological conclusions are always correct, while contradictive conclusions are always false. Both are considered logically determined. All the others, e.g. establishments of facts, are considered
85

Like mathematical symbols, e.g. A, B, C, (called Variables) for elements of language, a word, a name etc. and rules of operation e.g. if a then b written in symbolic logic a = > b and called an implication. 86 See: Wittgenstein Ludwig, Tractatus Logico-Philosophicus, 4.25 f. The use of the term truth happens to be rather irritating in this context. Formalization meaning here generally without referenced to the empirical relationship between mind and world, but to the analysis and evaluation of the mere intellectual/syntactical structure of language. That does not imply the term truth but the one of correct, correctness or right, rightness. Correctnesstables seemed to be the correct term (or shall we say true?). 87 E.g. already by G. Peano, KBW, op. cit. p.211 88 The formal analysis shows that e.g. the natural semantic meaning does usually not cover all the varieties of meaning which can be allocated to or. It is usually correctly used (true), when one of two alternative statements A or B is correct (true). But it turned out that it is also correctly used (true), when both of the alternative statements A or B are correct (true). 89 See: Frege Gottlob, ber Sinn und Bedeutung, in: Zeitschrift fr Philosophie und philosophische Kritik, NF 100, 1892 90 Philosophy courses of today deal with that, not least as to enable people to do some practical work, i.e. by writing programming code.

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logically undetermined. It follows that all correct conclusions have to be of the type of a tautological implication (i.e. ifthen). Tautological conclusions are also called certain, contradictions impossible and establishments of facts possible. Furthermore modern Logic analyses statements by breaking them apart. E.g. the command Close the door! is broken up into the factual elements and the commanding element, thus in: a) You close the door and b) That shall happen. These are called atomic statements, i.e. not to be broken up further.91 What seems of utter banality here has an immediate application in computer programming. The same applies to the distinction of so-called Quantors: none, only one, at least one, all (introduced by Frege), and to Operators/Junctors: ifthen, and, not, or (introduced by Boole as mentioned above). Moreover one distinguishes e.g. between the exclusive so-called alternation (the either or, e.g. like the Latin aut), and the non-exclusive or (e.g. like the Latin vel) and the allocation of logical symbols to them.92 The above examples show why epistemology, language theory and logics are studied and developed together. The science of Logic started in fact with the socalled laws of thought as described above. Furthermore it is based on Aristotles deductions (see also below). Deduction refers to a conclusion from the general to the special. Induction on the other hand, also mentioned by Aristotle, has been championed as a highly potential kind of insight since Galileo Galilei and Francis Bacon. It concludes from the special to the general.93 It is considered not to provide absolute certainty but only relative certainty. But reality sometimes makes that such relativity may appear rather convincing. Logics most famous strand today has thus strongly to do with so-called analytical philosophy started e.g. by Frege and B. Russell as they analyzed words and sentences with Leibniz goal in mind. 94 Out came the already mentioned Principia Mathematica a mathematical logic written by B. Russell together with A.N. Whitehead, which still seems to make authority today. It is also worth mentioning the work of Boole and De Morgan, which they called algebra (as variables and rules of operation are used as in algebra) and brought out in the first half of the 19th century, as it seems to have paved the way for a clear
Elementary statements, also called atomic statementys and the possibility of their combination (!) were introduced by Wittgenstein, see: Tractatus Logico-Philosophicus, 4.21, 4.25 f. 92 See e.g.: W. V. O. Quine, Methods of Logic, 4th ed. 1982, dealing with Truth functions, General Terms and Quantifiers, the General Theory of Quantification and in Glimpses Beyond with Set Theory. See also an introductory comment to it by A. Wagenknecht: Eine ganz kurze Einfhrung in die Logik, referring to W. V. O. Quine, Methods of Logic, 3rd ed. 1972, on: http://edv-journalist.de/Logik/101.htm 93 We leave out here to cite the many theories produced in the past two centuries about that statement, as they seem not so important under the aspect of the law. 94 John Locke was in fact called the unquestioned founder of the analytic philosophy of mind, by John Stuart Mill, as cited by R. Woolhouse in the first introductory page (blurb) of his edition of An Essay concerning Human Understanding, op. cit.
91

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concept and description of so-called logical operations, also called operators or functors often simply called gates, which can be represented in truth tables and in digital manner and thus read and applied by a machine, e.g. a computer. One background-insight they all shared was that language was in the end the image of the world, i.e. that it corresponds to the real world, called thus correspondence-principle, as mentioned above. That was abandoned later by a philosophical theory called of ordinary language which said: Do not ask for the meaning (of a word), consider its use 95 i.e. something like an extensional approach. That could however with equal justification be claimed by modern logic as just explained and early on John Locke had shown that correspondence can also refer to matters of the mind.96 It may be added that modern mathematical set theory created by Zermelo and Cantor appears to be of so fundamental and universal use that it may also belong to field of logic,97 if only as it supplies by the area of the intersection between two sets (entities, events), a convincing idea providing an alternative to Aristotles law about the excluded third, which happens to be of purely discrete character and then also because it is widely used in computer-programming. It is again Aristotle who created the science of Logic. He was the first to analyze thinking according to its formal structure. His classic example on inference or conclusions called syllogism says: (1) All men are mortal. (2) Socrates is a man. (3) Therefore: Socrates is mortal. (In logics called Barbara) or (1) Let A belong to B (2) and B to C (3) Then A belongs to C (In logics called Darii)

KBW, p. 223, referring to Wittgenstein and see: Wittgenstein L., Philosophical Investigations, German/English, translation Anscombe, Blackwell Publ. , 5th reprint of the 2nd edition, Oxford 1999, e.g. N 30, 43, 138, 532, p. 14, 20, 53, 149 96 John Locke, An Essay concerning Human Understanding, Book IV, chapter V, VI, op. cit. p. 508 seq., p.513 seq. 97 See: W. V. O. Quine, Methods of Logic, 4th ed.1982, Introduction, p. 5

95

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1) and 2) are called premisses, 3) the conclusion. Man is in this example the so-called middle term, which falls out in the conclusion. A modern logician (I.M. Bochenski) said that this assertoric syllogism is probably the most important discovery in all the history of formal logic, for it is not only the first formal theory with variables but the first axiomatic system ever constructed. A, B, C being variables as in algebra, which can be replaced by specific things. But where is the axiom? If we draw a so-called Venn-Diagram, here i.e. a small circle for A, a bigger one for B and an even bigger one for C, then we see that it is obviously correct and necessarily so, needing no further reasoning. Thats the axiom. It can immediately be seen that the principle of subsumption used in the application of legal rules is based on that. Example: (1) Disregarding of rule X shall be punished by a fine of $ 50 (2) Z. disregarded rule X. (3) Therefore: Z. has to pay a fine of $ 50 There can be construed several different forms of this basic example but they shall not bother us here. Thus we are in the domain of the so-called Elementary Theory, mentioned above. Before it deals with conclusions it deals with concepts and judgments, i.e. statements. The latter shall be dealt with below. Leibniz contribution of the logic calculus we mentioned already above. As logic is also called the study of correct inference (folgerichtig) it is naturally of central importance for any dealing with matters of Law. No judge would e.g. listen to an attorney if that one would not adhere to this principle. Yet any attorney knows that it is useless to attack an opponents reasoning, e.g. before the judge, as illogical as that is traditionally met with happy laughter by the other party. Why is that? Because any reasoning can at least verbally be shown to be lacking in that quality or the contrary proven as logic. That is something wherein Barristers and trial-lawyers happen to excel. They seem to have developed some sceptic vein as that Lactantius, who gave a speech once in favour of justice and once against it. That happened in the middle of the 2nd century BC in Rome.98 Consistent etc. is a more usual qualification for the same purpose. We have to leave that subject here in that brief and very cursory state. It will do for the purpose here. But for a more complete picture it is referred to an appropriate summary of the subject by a specialist or then to its proper study.99

98 99

Hoeffe, Ottfried , Kants Kritik der reinen Vernunft, 3.A., C.H. Beck, Munich 2004, 243, n 35 E.g. A.D. Irvine, Philosophy of Logic, 9-38 in Philosophy of Science, Logic and Mathematics, just cited

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d) Language Logic deals with statements. Here we deal with the theory of language (linguistics) as a whole, but also with the nature and function of words and statements and with reality and truth. 100 Some aspects of that have been mentioned already. But in law language has a particular importance, wherefore it requires even more attention here. Law and Justice require dealing most intimately with notions, concepts, expressions, terms, words, statements, sentences and texts. Any lofty assumption, any imprecision or ambiguity in statements, will in the context of Law and Justice readily be denounced, laughed at or torn apart in the most consequential way e.g. by an adversary party, not only in a courtroom but already in ordinary correspondence. There are not many other fields where one can achieve comparable experience in talking about the subject and the use of language. That is a special quality which requires a special responsibility. Language and Logic: Carnap said: The analysis of meanings of expressions occurs in two fundamentally different forms. The first belongs to pragmatics, that is, the empirical investigation of historically given natural languages. This kind of analysis has long been carried out by linguists and philosophers, especially analytic philosophers. The second form was developed only recently (i.e. 1947, the publication date of Meaning and Necessity, ed.) in the field of symbolic logic this form belongs to semantics (here understood in the sense of pure semantics, while descriptive semantics may be regarded as pragmatics), that is, the study of constructed language systems given by their rules. 101 These other methods have one thing in common: They all regard an expression in language as a name of a concrete or abstract entity. In contradistinction, the method here proposed takes an expression, not as naming anything, but possessing an intension and an extension.102

It is not to be forgotten that logos, which gave the name logic, had in Antiquity also the meaning of language and speech, wherefore language and logic are intrinsically intertwined if not belonging together. Logical considerations permeate e.g. Aristotles Organon dealing with statements (peri hermenias), conclusions and proofs and Metaphysics, dealing with fundamental concepts. 101 Carnap R., Meaning and Synonymy in Natural Languages, p. 233, in: Meaning and Necessity, Chicago, 1947, cited according to the enlarged Midway Reprint edition, Chicago, 1988, a book dealing with mainly two subjects, one being the method of intension and extension, the other being modal logic 102 Carnap, op. cit. Preface to the first edition, p. iii

100

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It was the elder Stoa (Zeno, Chrysippus etc., ca. 300 200 BC), who studied and language and logic (e.g. by further developing Aristotles syllogism). They distinguished in particular three things around a word/name/sign: a) a special existing object, e.g. a person, denoted by that sign, e.g. John the human person, himself b) a linguistic sign or sound, e.g. John c) the meaning of the sign, e.g. as a name for John, the person. With that they insisted furthermore on an ontological consideration. They said that the first two things are bodies, i.e. objects in the concrete or real (outside) world. That is as true for a person or an object as for a sound or a scribbled word. The third, they said, is not a body but it is in our mind.103 Everybody hearing John in the same context knows in his mind: b) that John is a a sign, here a name, i.e. a word linked with an object c) that that name stands for that special person John (to be found at a specific time and place, e.g. at time t at the coordinates x, y, z). The real person a) John is not there. Both b) and c) are in the mind. Even the name John formerly thought and spoken (and conceived as a body by the Stoa) is now but in the mind. As we shall also see below that there is usually a relationship between two entities/events that are somehow related, an aspect like a real event in itself, we have to do at least with 6 if not 12 events around that little happening. Although its has already been said that the CONTEXT is essential for any dealing with words or signs we shall for the sake of explaining that, stick strictly to a purely observer-centered view: (1) (2) (3) (4) (5) I see an object (here our physical/real person John) I utter/write/draw a word/name/sign, here the name John I reconstitute picture and sound etc. of the object, i.e. the person John in my mind I record sound and picture etc. of the word/name/sound John in my mind I know in my mind that the reconstituted object (3) belongs together with the reconstituted word/name/sign (4), (which is the relationship between the reconstituted object and the reconstituted word/name/sign, seen from the side of the object)

103

We immediately see that these considerations around language and semantics concern and logic and ontology but as instruments of analysis also epistemology. Reference is made here also to the as clear as concise renderings of these matters in an earlier edition of the Encyclopaedia Britannica, namely that of 1966, vols. 13,14,20

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(6)

(7) (8) (9) (10)

I know in my mind that the reconstituted word/name/sign (4) belongs together with the reconstituted object (3) (which is the relationship between word/name/sign and object, seen from the side of the word/name/sign) I can recall (3), John, the reconstitution of the person, in my mind I can recall (4), John, the reconstitution of the word, in my mind I can utter/write the word John on the basis of that (4) I can draw the picture of John on the basis of that (3) and describe him further on the basis of that.

One could call (3) to (6), which happen as swiftly as in one act, a record or a reconstitution in the mind of an observer of the object and of the word/name/sign and of their relationship(s). To that adds now in case of an event of understanding by a third person, i.e. on hearing/reading the mentioning/display of the word/name/sign John (11) the reconstitution in the minds of those who are supposed to understand, of the events (3) to (6). That is possible because those who know this special John can understand, i.e. reconstitute that meaning from their own mind, even in his absence. As soon as we refer to an aspect of understanding/interpretation we happen to be in the field of the theory of interpretation/hermeneutics briefly dealt with above, involving among others the psychological and epistemological aspects of the interpreting person and several contextual aspects. That can then represent another event in such a structure, beyond the mere reconstitution (11) as soon as more action happens in the mind of the receiving third person such as to understand a word/name/sign, i.e. (12) the interpretation in the mind of the receiving third person, including all the abovementioned interpretative aspects, in particular the contexts of time and space.104 We realize at once that except of the really occurring object/event (1) everything described here is but in the mind/minds. Even the relationship/s (5) (6) between a word/name/sign (4) and the object/event (1) is. As seen in the case of the universal in above, the real object/event could not care less (except in the

104

When we put it this way (by addressing denoting, meaning, understanding) we happen to be following the example of the semiologist C.W. Morris, who also distinguished between these three stages what he called: Syntax, Semantics and Pragmatics, see e.g. Mormann, op. cit. p.154

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case of at least humans or animals spoken about) whether a being were there calling it such and such. Furthermore it happens to be rather common that a boy like this John carries several names, i.e. his mother often calls him Johnny, his learned father sometimes Johannes and his comrades in the village where that family often spends their holidays call him Punch because he had once a fight with them. In all these cases these same mental steps/elements happen accordingly, afresh and independently, as one has to link this person with the new word/sign/name. Today De Saussure (1857 - 1913) and Frege (1848 1925) are two names that are often cited regarding these considerations about language, the first more among linguists, the second more among philosophers, logicians and mathematicians. Both looked at the just mentioned structure as developed up to the Stoa. De Saussure did not add much to the matter and Frege interpreted it somehow in a particular way. Yet de Saussure went on to contribute to the understanding of signs and to the nature of language as such, notably of the phenomenon of a general discourse (see below) and Frege became one of the originators of modern formal logic, i.e. mathematical logic, e.g. with the introduction e.g. of the concept of truth-value and of quantors to be mentioned below. Freges approach requires a brief comment. He considered the case of two or more names for the same person/thing/object and distinguished by that on one hand the fact of denomination (which he called Bedeutung) and of meaning (what he called Sinn) on the other.105 This distinction has been maintained in Logics, but not his words used for it. Sinn and Bedeutung turn out largely synonymous as a glimpse into a dictionary immediately demonstrates. The example of two different names for the same thing (Morgenstern, Abendstern, or with Russell Scott and the author of Waverly, or then e.g. Frederick or Freddy for the same boy) is misleading. It has nothing to do with that distinction but most often with the context or a subjective intention. What Frege distinguished by that met the known distinction between the meaning of a notion (Begriffsinhalt) and its comprehension (Begriffsumfang). But he went on to call the aspect of denomination or reference (his Bedeutung), which is, as has been seen, a mental affair, an objective fact. From there he went on to consider statements/sentences under the same aspect and found that their objective aspect lay in their truth and spoke of truth-value (indicating either true or false). Thus he likened truth-value to denomination (Bedeutung).106
105

It shall be disregarded here that he saw a third aspect in the idea/view (which he called Vorstellung or using Kants expression Anschauung), see: Frege Gottlob, ber Sinn und Bedeutung, in: Zeitschrift fr Philosophie und philosophische Kritik, NF 100, 1892, p. 30 106 Frege, Sinn und Bedeutung, op. cit., p. 30ff., 34

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On the basis of the above one can say that the act of denomination constitutes at once the (first) meaning (which may evolve afterwards).107 That consists at least of the elements (3) (6) mentioned. The meaning is not the physical person/object. It is its mental record (reproduction/memory/recollection) plus the mental record of the relationship between that and the name/word/sign/notion. What else could it be? We denominate, give a name/word/sign to something, as to remember it and by such storing it immediately in the mind such as to be able to use it, to communicate it, even without it being present. Nothing else is required nothing else is to be meant/implied. Pointing at something, e.g. at a dangerous lion, and uttering a name/word/sign at that very moment and memorizing it, appears as a great invention. Such a personal sensation can be mobilized, carried away and communicated elsewhere, as soon as somebody else knows what the sounds lion means. Therefore all the exercises around Morning-Star and Evening-Star for the same planet Venus, because they refer to the same thing, but in different contexts! (See: Frege) and Scott and the author of Waverly for the same person (See: Russell), appear as largely obsolete.108 Notwithstanding the problematic terms used, but by making this distinction at all, by comparing the mathematical concept of function to notions and statements and by the introduction of the aspects of truth-value and quantors, Frege opened the possibility for the analysis of the denominated objects on one hand and the word/name/sign for it, and of their meaning, on the other. Starting from there Carnap has gone on to use the double aspect as to distinguish Extension for the object/objects denominated and Intension for the word/name/sign (denominating them). 109 By that he gained the ability to address the type and number of objects denominated (the Extension) according to the structure of the word/name/sign which had been chosen for them (Intension). Intension such stands for the meaning (content) of a notion (Begriffsinhalt)110, i.e. the analytic aspect, while extension stands for its comprehension (Begriffsumfang), i.e. the synthetic aspect. Both are intrinsically linked as we saw above by considering the

107 108

Mental reservations being excluded here See: Frege Gottlob, e.g. Schriften zur Logik und Sprachphilosophie (aus dem Nachlass), Hersg. G. Gabriel, 4. ed. Meiner, Hamburg 2001, Einleitung in die Logik, S. 85; Russell, On Denoting (cited in the german translation, in: Geschichte der Philosophie in Text und Darstellung, 20. Jahrhundert, Reclam, Stuttgart, 1995, p. 282, where he denounced Freges distinction as false. We add here that Quine criticized that and also the distinction between conclusions from facts (synthetic) and conclusions from the mind (analytic) among others using the aspect of contextuality, see: W. V. O. Quine, , Two Dogmas of Empiricism, in: The Philosophical Review 60, 1951, 20-43 109 Carnap Rudolph, Meaning and Necessity, University of Chicago Press (1947), Midway reprint, 1988, p. 96 seq. 118 seq. 110 Carnap, as cited, p.233

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events (3) to (6).111 Meaning cannot be separated from at least the reference to denominating. It has also become clear above with the term universal that the intension is not always just a simple name/word/sign but quite often referring to more than one object. Red, the name of the color, can stand for many things red. If applied that refers then to the aspect of the extension. But the intension can also be complex, e.g. when someone says table it can be a question what the exact meaning of that notion is, i.e. what can fall under that notion. What is its intension? (Which can also read: What is its meaning?), is then a question which makes sense. There are also cases where the intension is a compound of several aspects as e.g. in a notion like one red rose. Or it can be even more complex as in the case of full statements, e.g. as in a legal claim, defining that which is due by a debtor, e.g. a claim made up of several words or even several sentences, a text (see below). What is meant by it? What falls under it? What is concerned by it? are then most practical questions. In such a case conclusions have to be made on the basis of the intension alone, yet considering the possible extensions. Again, what Carnap called intension and extension goes back to Kants distinction between analytical conclusions/truths and synthetic ones, that goes back to the classics truths of reason and truths of fact (Leibniz etc.) and those to Platos distinction between objects of sight and objects of intelligence (see above) but as said Carnap did not think of ontological facts, but just of purely formal (theoretical) and functional qualifications, i.e. purely logical ones. Quine seems to have supplied another pair of notions for this same distinction, namely theory of meaning and theory of reference112 yet going famously on to criticize these double aspects and also the distinction between analytic conclusions and synthetic ones 113. Ryle seems to have joined Quine in this point. 114 Carnap however maintained that distinction and argued that intension and extension would not be the same and that the intension included not just the real extensions but also the possible ones, such referring to the aspect of modality.115 He seems to have been right in that point as the example e.g. of legal claims and their possible applications show, where the intension directs the extension (see below). But this is easier to see with the intension of a common universal.
111 112

Carnap, op. cit. see: Carnap as cited, p.233, note 1) 113 see: Quine, Two dogmas of empiricism in: The Philosophical Review, reprinted in: From a Logical Point of View, Harvard University Press 1953, second revised edition 1961 114 see: Carnap as cited, p.216 115 see: Carnap as cited, developing the Logics of Modality, p. 173 seq., p.238

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Lets take e.g. a horse. That notions extension refers indeed beyond all really existing horses also to all other possibly existing ones because that concept is readily available in our mind and happens most likely also to be in the minds of those with whom we happen to communicate. If in that case or in the case of a more complex intension, a sufficient definition for the intension can be provided, e.g. consisting of several characteristics, or that the intension may serve as definition, it seems likely that also a computer could be programmed such as to recognize all things/events to which these characteristics comprehensibly apply. But as soon as an extension is really decided about it becomes immediately part of the intension in our mind, not yet however in such a written, verbal form. Again, what does extension mean? It means that to which a word/name/sign refers, its comprehension (Begriffsumfang), i.e. the application of the notion. The intension (Begriffsinhalt) can be called that which is implied, the extension that which is applied. Although Carnap was not interested to deal with such ontological questions it is possible on the basis of the above to say that the reference or relationships (5) (6) described are mainly concerned, namely those from and to the mental reconstitution of an existing or a possible application. The discussed distinction refers primarily to matters of the mind. The intension can be likened to the definition of an expression/notion, i.e. the enumeration of its essential and accidental characteristics and the extension can be likened to its application. Russell distinguished 3 cases of denomination,116 (i.e. intensions) namely a) the normal case where a notion refers to an object and has thus a meaning b) the other common case where a universal notion refers to several objects and has all of them as meaning. His third case c) seems at first not to make much sense, but he wanted to logically classify it. It refers to a case where a notion has no object but still a meaning, e.g. dragon. As there seem not to be real dragons around that is entirely a matter of the mind, perhaps using/producing an object of imagination as a substitute. We may also think of names/words/notions in jokes, fairy tales, in theatre plays and generally in literature of fiction. The difference to similar logical structures such as in the case of errors or lies consists of the fact that in matters of literary fiction the ones concerned know that they deal with fiction.

116

Russell, On Denoting, op.cit.p. 270

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It is of interest that modern computers and their programs mirror the above. They usually dont deal with intensions as such but define the intension of a notion by their extension The term Extensionality can thus be heard in the computer world. 117 It saves the trouble of finding a suitable definition (a rather difficult matter as the simple example of table shows). But it seems at least in principle always feasible to use a list/collection of specific characteristics as to define a specific term. But to make it working requires also the definition of the relationship/s between the definition of the term and its existing or possible applications. If the definition is considered as intension it seems such always to require the listing of its applications, i.e. of the existing or (if possible) of the possible extensions. On truth: As shown above, since the oldest times of human thought there has been a view that the reality about which man is talking, were just an illusion (an old Indian view). Even Kant still held that man is not able to know things as they are (das Ding an sich). 118 Such a view provides considerable freedom with regard to talking about reality. Later views went on to hold, rather radically, that only that is real which is covered by language (e.g. Hegel). Sren Kierkegaard drew attention to the fact that truth refers to the relationship between an observer and that, which is observed. He thus found the subjective aspect in it.119 But this does not change at the fact that a real occurrence seen the same way either by one or by many invokes also the term truth or reality. It is then a personal truth. It may become objective due to its confirmation, repeatability or proof. Truth does not refer to things but to statements (propositions) about them and sometimes also to acts. As said philosophy knows e.g. with Leibniz at least two kinds of truth: a) truths of the mind (Vernunftwahrheiten) and b) factual truths (Tatsachenwahrheiten), real truth and verbal truth of John Locke and of the abovementioned analytical and synthetic truths developed by Kant and the objects of sight and those of intellect by Plato. It speaks in three ways about it: 1) according to the mentioned principle of correspondence; i.e. the statements correspond to reality (correspondence principle120, 2) according to its coherence with an established system of speech or ideas etc., a so-called (general) discourse (coherence principle) and 3) according to the principle of consensus as multi-subjectivity (inter-subjectivity), when there is agreement about the
117

A term used first e.g. in the Carnap Quine discussion e.g. for Quines ML language system, by Carnaps words excluding all non-extensional contexts, see: Carnap as cited, p. 141 118 Kritik der reinen Vernunft, B, 1787, Transzendentale Elementarlehre, zweiter Teil, Erste Abteilung, Zweites Buch, Drittes Hauptstck 119 Sren Kierkegaard, Abschliessende unwissenschaftliche Nachschrift zu den Philosophischen Brocken, 1. Teil (1846/1957), p 179 seq. - cited in: Gernot Bhme, Einfhrung in die Philosophie, Suhrkamp, Frankfurt a.M.. 1994, S. 250/51 120 Famously called by Aquinas adaequatio rei et intellectus, KBW, op. cit. 83

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facts. 121 It seems that there is a fourth, probably less accepted case or a subsection to the correspondence principle when something is considered true, because it works (a pragmatic or utility principle).122 The second and the third aspect have attracted attention by Structuralism, Post-Structuralism and Deconstructivism (see below). The mushrooming 19th century thinking took that even further to rather peculiar views of the subject. E.g. in Nietzsches papers one can find sentences like:Wahrheit ist die Art von Irrtum, ohne welche eine bestimmte Art von Lebewesen nicht existieren knnte. (Truth is of that kind of error, without which a certain kind of living being could not exist).123 Obviously truth is held necessary for man, but it is alienated as some kind of error. It thus is highlighted that it is difficult to find truth and that the talking about it can have various subjective and objective ingredients. That was taken up by younger traditions of the 20th century. Wittgenstein referred to the constitutive function of language as to give account of reality,124 and the structuralist schools of thought stress that reality (or truth) is made or even invented via the language. That comes back to John Lockes complex evaluation of verbal truth which he likens to mental truth referring to propositions consisting of words either written or spoken or formed in the mind. But truth of words he considered to be something more namely the affirmation or denying of words one of another as the ideas they stand for agree or disagree. He stresses such not the importance of a correspondence of the mind to reality alone but another level of correspondence namely the one between words/signs and another one between the ideas they stand for. By that it becomes evident what the colloquial term brain idea may mean. That is then a mere correspondence of words, which can stand not only of valid ideas but also for cloudy ideas, incomplete, bygone or false concepts. If correspondence between such ideas or only between such words is the basis of truth then the risk is high that they are fragile. Real truth Locke claims is about ideas agreeing (corresponding) to things i.e. the old Veritas est adaequatio rei et intellectus.125

121 122

Hoeffe Otfried, Kants Kritik der Reinen Vernunft, 3.A. C.H. Beck, Muenchen 2004, p. 156-164 Compare Hffe, as cited, 159; Ewing A.E., Truth in: Chambers Encyclopaedia, London 1959, vol. XIII 123 F. Nitzsche, Aus dem Nachlass der Achzigerjahre in: Werke, ed. Karl Schlechta, Munich, Hanser 1969, vol. 3, P. 844, zit. In G. Bhme, Einfhrung in die Philosophie, 2. ed. Frankfurt a. M., Suhrkamp 1997, p. 46 124 see: L. Wittgenstein, in: Philosophische Untersuchungen 125 See: Locke, An Essay concerning human Understanding, Book IV, Chapter V, op. cit. p. 508 seq., i.e. such using the approach of Aquinas (see above)

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With de Saussure the mentioned younger schools see the language as a given society-wide system, of discourse.126 That those are being influenced by the powers that be, according to their own specific interests, is taken as a given fact by these schools. It follows from such views, that it has been suggested, one should not restrict the understanding of conceptions to their meaning alone but to treat them more as a rule or as a schema. 127 This is not entirely to be denied. But because of our subject and not least because law involves verification, it is to be underlined that the following text shall try, quite to the contrary, to stick as closely as possible to the actual meanings of words, terms and conceptions. That is because the legal use of language has to be ascertainable, i.e. by another party, a judge or a reviewing body, who should not only understand it properly but also be able to agree with it. As said one but not the only reason for our practical approach is the aspect of the purpose of the law, particularly in its application, which has to strive after reliability, certainty and common (objective) understanding. Yet a linguistic notion/conception is similar to a set and a set has limits, boundaries. These are hardly ever sharp. The closer one gets to them the more they tend to dissolve. That makes that the instrument of language seems often not precise or appropriate enough. If we consider that reality itself can have a similar elusive quality the picture of the child at the country fair comes to mind, who tries to put a ring at the end of a string at the top of a stick around the neck of a bottle in front of him, with the specification that the ring would be constantly shrinking and expanding and that the bottles were constantly moving too. The poet Novalis (1772 1801) likened this to meshes of a net being either too big or too small to catch the appropriate fish. But all this refers more to extraordinary cases and to the conditions at the fringe. We should not apply it sweepingly to the ordinary case too, i.e. to the far greater number of rather unequivocal correspondences between conception/word and its significance / meaning / understanding and the world. Moreover the problems of describing or explaining the world by a language and the correspondence between both is one question, our difficulty to observe or assess the world correctly even before we talk about it, is another one. There may be problems if one conceives facts as the result of our thinking or talking about them. That reminds the case of little children as they are trying to hide in
126

This thought has a long ancestry. It stems from the early romantic movements introduction of Kants transcendental idealism into philology and history. Leading names are Schleiermacher, in particular: Wilhelm von Humboldt and Droysen, compare Mueller-Vollmer K., Language, Mind and Artifact, An Outline of Hermeneutic theory since the Enlightenment, in: The Hermeneutics Reader, ed. K. Mueller-Vollmer, New York 1985, 14, 8-18, 127 E. Bhme, op. cit. p. 40 Es empfiehlt sich deshalb, Begriffe nicht auf die Bedeutung sprachlicher Ausdrcke einzuschrnken, sondern sie allgemeiner als Regeln oder Schema zu definieren. This reminds the mathematician who studies number theory and says: I do not think of the number three in a sharp way. I conceive it more as some kind of threeness or treeishness.

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the hide-and-seek game by just covering their eyes, thinking that they cant be seen if they do not see. The linguist de Saussure referred e.g. to a word sometimes as unit, and treated it more generally as a sign (French signe) and distinguished (the well known) two aspects or functions linked in a sign, namely that which is denominating something (le signifiant) and, that which is designated (le signifi) such arriving at a threefold structure 1) signifi, 2) signifiant and 3) what he considered the link between the two, the sign (le signe), while stressing that he is not looking at the physical result of the pronunciation of language but at its psychological preconditions. Le signifiant stands for image accoustique (sound pattern) for which he refers to the fact that we can, without speaking, think clearly of the sound pattern of a word, as e.g. horse, as everybody may try for himself.128 But see above! One can such distinguish between a multitude of different names or meanings for the same thing or a multitude of different names or meanings, even derivative one from the other and one can fill in designations, signs, symbols, codes, tokens and apply basic characteristics, which show up around the event of language and thus the description of reality. That is however just one aspect of de Saussures thinking around language. Another underlines the contextual nature of any designation or conception, which he discusses in particular with regard to its conventional aspect. De Saussure became the father of the 20th century philosophical school of structuralism. He stressed as already said that language is not to be compared to a dictionary in the brain but has to do with a complex psychological and social reality, an actual and broad interactive social structure involving many individuals, like a general mind, an idea already discussed earlier by Wilhelm von Humboldt.129 One might speak of a general discourse as compared to many special ones. The signs/words described are thought to be interrelated. Changing the meaning of one sign would have an influence on all the others. Their whole system or structure (la langue) makes up the language. The meaning of a sign is thus not to be derived but from the sign, but it comes from this inner (unconscious) system of the language. Language understood as such a system or structure does only exist among the totality of all speakers of it. The term discourse refers to such a reality, the prevailing or dominant general way of speaking, its subjects and judgments,
128

F. de Saussure, Cours de linguistique gnrale, Payot, Paris 1915, p. 97 ff. (128 ff.) and its translation, Course in general linguistics, translated by Roy Harris, 6.ed. Duckworth, London 2000, p. 65 ff. His theory went far beyond what is to be mentioned here (That has been emphasized later by another structuralist, C. Levi-Strauss). This text mentioned the terms semiology, structuralism and reconstruction i.e. at the beginning of the century. They became prominent in the course of the 20th century. A further exponent of that line of thought was M. Foucault. 129 That idea had been discussed around 1800 by the Romanticists, notably by Wilhelm von Humboldt. See: Mueller-Vollmer Kurt, Language, Mind and Artifact, in: The Hermeneutics Reader, ed. Mueller-Vollmer, New York 1985, p14

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including fashions. This is indeed a dominant fact of our reality. We might witness changes in such discourses, not just of single subjects, or bits of discourses. It is usually around one generation that there is a certain coherence of such a reigning discourse. The duration of such discourse may indeed serve to define a generation.130 And then there is the fact of changing words/terms/concepts for similar meanings. One has to become aware that this is a real fact. 131 The word Justice will provide a marvelous example for that (see below). What was once Rita became Dharma in India and then Nomos and Logos in Greece and then Justice in Rome. That is another reminder of the caution necessary with regard to theories and systems relying on semantic considerations alone, clearly addressed e.g. by B. Russell.132 Yet one has to deal with the world in ones own space of time. To that is to be added the importance of the general and the subjective point of view chosen.133 Two different meanings of objectivity: That leads to a frequent distinction with regard to what is called objective reality One aspect of objectivity appears by several persons observing the same thing in the same way. That kind of objectivity can be called inter-subjectivity. It is a kind of objectivity that happens to be used in legal court proceedings. We may refer here to the way truth is established there. That can happen on the basis e.g. of documents or of witnesses. Scientific facts however ascertained e.g. by methods of mathematics, for which we apply the term logic, appear to be beyond of mere inter-subjectivity. They happen to be of a higher degree of objectivity. Precisely that happens to be put in doubt by some of the above theories, at least in a poetic sense. One can speak about the world and take as reference or yardstick the facts and events as they appear frequently or regularly, i.e. statistically in an overwhelming number. We might call that also rules. Or
It is a common feature of any generation that it can be identified by some fashionable notions abundantly used in particular by adolescents. 131 A practical example: In the year 2003 a linguistic study came to the conclusion that in the context of i.e. Celtic languages words for the same meaning changed in the past in the average every 1350 years. See: P. Foster and A. Toth, www.pnas.org./cgi/doi/10.1073/pnas1331158100 132 See Bertrand Russells critique of Kants system out of this same reason, The Problems of Philosophy, op. cit. p. 49 Yet it is to be added that the Philosophy of the Stoa already distinguished between that which is designated (signifie ) and that which is designating (significant) and Peter Abaelard in the 12th century specified that by distinguishing clearly between the aspect of denomination and the aspect of signification (see. KBW 55,75). And the question would have to be asked why man has different words for conceptions, words on one hand and signs on the other. Could there be an intrinsic difference? 133 On this subject more should be heard in a course on philosophy. Otherwise, see below on interpretation.
130

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one can try to speak about the world by taking most rare and exceptional facts and events as reference or yardstick by concluding, if such an event occurs, that all the others are falsified. We might call that also exceptions to the rule. The latter approach, which has the idea of something absolutist to it, seems to have intrigued many through all times. Yet as the water of a river flows stream-upward along the riverbank, all things have their fringes where fringe-conditions apply which may be contrary to the ones of the mainstream of a river. One cannot help but to refer in that context to another prominent statement of de Saussure mentioned above, as it deals with law and language. He asked: Why shall a beast on four legs with two horns such as an ox be called boeuf on this side of the Rhine but Ochs on the other? He such held signs like e.g. words etc. to be arbitrarily formed. Symbols however a specific variety of his signs, he found to be somehow awkward and never to be entirely arbitrary. He gave our symbol of justice as an example, the young lady with covered eyes and a sword in her right hand and scales in her left (formerly the Roman goddess of Justice) and concluded that, the scales could hardly be replaced by a chariot.134 It need not be underlined here that the discipline of Syntax deals with relationships among words/names/signs e.g. within a sentence and that the relationship between a word/name/sign and an object denominated is dealt with by Semantics i.e. that which refers to the originally Stoic structure of 3-6 or 3-12 events as mentioned above, i.e. the aspects around meaning, both aspects happening to be particularly prominent in modern formal Logics. Finally there are to be mentioned two most prominent and original considerations referring to reality and truth one by Aristotle and one by Kant:135 Analyzing statements and the question whether a predicate (a statement, a qualification) applies to a subject, Aristotle held in his fourth book on metaphysics that the law of contradiction is of fundamental importance. It says: Nothing can both be and not be136, i.e. that in the same context something can be applying and not applying and that there is no middle position between true and false (that latter consideration is an other law by itself, the famous tertium non datur, i.e. the law of excluded middle or either this or that, but nothing else). He offers no real proof for that but insists that just this case shows that there are considerations which are valid and of sufficient certainty in itself and, that additional statements would lead to a never ending regress.137 By that he gives
F. de Saussure, Course in general linguistics (1915), translated By R. Harris, 6th ed. Duckworth, London 2000, p. 68 (101) 135 cited together e.g. by Bhme. op. cit. p. 353-357 136 in the way stated by Bertrand Russell, The problems of Philosophy, p.49 137 Aristotle, Metaphysics, book IV, 3ff.
134

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the example of an epistemological axiom, sometimes also called principle in the past. Kant dealt in his practical philosophy with a ban on lies (Verbot der Lge). He offers two arguments for this. On one hand he refers to legal reality and in particular to that of contracts and says a social system could not work if the principles of trust and confidence were not at its basis.138 That applies indeed, in particular to our law of contracts, and as bona fide principle (Treu und Glauben) it applies to a large extent throughout our entire legal order. On the other hand he based his proof on the categorical imperative and the fact that a right to lie could not be generalized without destroying social life, such reverting in fact to the first argument.139 We may close that remark with a proverb from the past: Advocatus sed non ladro res miranda populo (An attorney (lawyer) who is not a cheat is a wonder to the world.) or with that remark by an attorney to his client, after that one had lied to the judge during court proceedings: What do you dare to lie in here? If ever the only one who lies in here is me! Though popular these remarks turn out to be if not humorous but both very biased misrepresentations of reality as any serious attorney is very careful neither to be the dupe of his client nor to risk his legal reputation and then his liability towards the court and under the law. The aspect of the abuse of law and justice shall thus not be part of the subject here. C) A Point of Psychology Another view is more personal and has to do with psychology, wherefore it is also mentioned here in the beginning. Man speaks of mad behavior or mad persons and criminal law tries to deal with such things. It is a fact that the element of madness has not-seldom, some say always, but two roots, either, sickness, illness or dullness. It is a further psychological fact that people prefer to be called mad or wicked in place of dull, yet e.g. the statistics of people under sentence show ever since a clear and rather tragic picture with this regard, leaving no room for discussion at all. We are talking of the main and significant number of cases in these contexts (something like 85%) not of the exceptions, which seem so tempting to be portrayed by authors and film-directors.140

138

Kant, ber ein vermeintes Recht aus Menschliebe zu lgen 1797, ed. in one volume: Metaphysik der Sitten, (i.e. Metaphysics of Morals), Suhrkamp, Frankfurt a/M, 1977, p. 638/639 139 Kant, Ueber ein vermeintes Recht...., op. cit. 639 seq. 140 and we cannot help to remind here Platos view, that they know least about reality, see above

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D) A Structural Aspect By looking at the world, philosophy has tried to distinguish fundamental pattern. One speaks of things in the outside world, which can be objects of experience and of others, which are in mans mind. 141 Another view highlights the observation that everything is the effect of a cause, another kind of two basic aspects. A further view is very important for the circumspect approach required by considerations referring to law. It stresses the fact that reality should not be explained just by two opposite aspects: black and white, substance and quality, cause and effect, body and soul, warm or cold etc. but at least by a triple set of aspects (one could call it a triplet), which includes the relationship between the two contrasting aspects as a basic aspect in itself. What is the origin, the nature, the quality of the relationship between two persons or two things or two phenomena? That is one of the main questions in Law, or then to see that relationship at all.142 By that is meant a real relationship between two contrasting aspects. It leads to another consideration of fundamental importance in matters of law. One speaks of matters of real life in a given common context but distinguishes aspect (A) from aspect (B). It happens often that discussions arise between them or because of them. They tend to be described as totally different. Yet a closer look at them shows that (B) originated out of (A) and that it has still a considerable number of qualities in common with (A). It is then more (A) versus (AB), which is to be considered. In the vicinity of this there appears the consideration that the discrete appraisal of facts in an either/or fashion may not rarely show its limits and might direct the view in some cases more to an and/and evaluation. All that could lead to a scientific critique at the view of a universal dialectic principle, e.g. prominent during the 19th century.

141 142

see e.g. Plato and then Kant The importance of relations is well known in Philosophy, see e.g. Bertrand Russell, The Problems of Philosophy, 1912, reissued Oxford University Press 2001, see: index and e.g. p.55. What is rarely underlined is the particular importance of relations in practical legal matter. Yet in his Summa Theologiae II-II, question 57, Aquinas precisely called Laws relationships among men. Wittgenstein on the other hand mentioned the aspect of relationship in his analytical thoughts about language referring to the structure of sentences (see e.g. Tractatus 3.1432, 4.122f., 5.2).

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E) Another Epistemological/Logical/Linguistic aspect We twice encountered above a basic distinction leading to two basic types of conclusions, which seem of considerable importance for the matter of Law and Justice. They merit one more comment. It concerns the analytical-conclusion on one hand and the synthetic-one on the other (again: analysis stands for separation of a whole into its parts; synthesis for the combination of parts such as to form a whole) in particular dealt with by Kant in his Critique of pure Reason. It shall not be omitted here to add that Bertrand Russell e.g. criticized Kants epistemology on ontological grounds yet not his distinction between analytical and synthetic conclusions. 143 R. Carnap, referring to the same, distinguished between intensional and extensional aspects (see above). Moreover the basis of a statement was enlarged from a single notion/concept to a sentence and then to more than that, e.g. texts or to even to semantic systems (i.e. a text, a whole document, a set of facts). There appeared other distinctions to be made, e.g. whether a conclusion had to be based on one or several such semantic systems. Moreover there was more to Frege than the above criticism. He not only enlarged the logical consideration from words/names/signs to sentences, but he qualified their extension (his Bedeutung) by their truth, i.e. the truth value. Thus the analytical conclusions became now addressed by Carnap as logically true (L-true) and synthetic ones became addressed as factually true (F-true) and he distinguished also between modal-statements referring to identity, possibility and/or necessity.144 Mathematics and natural science are said to by synthetic and to care only for the extensional. It appears then to make sense that the application of notions of modern formal Logics, such as on one hand analytical and synthetic and on the other intensional and extensional tend to make sense not only in matters
143

see: B. Russell, The Problems of Philosophy, op. cit.,p. 49-51: Nor shall it be left unsaid that one of Kants main contributions in his famous Kritik der reinen Vernunft was (according to his own correspondence as reported by Heidegger) the demonstration that there are synthetic judgements which are a priori. 144 See to all that Carnap, as cited above, e.g. p. 8, 10, 12, 118, 119, 173 seq. That can be found applied and developed in a legal context on the basis of Carnap e.g. also to semantic-systems, see: Stamm K., Logik im Patentrecht, C. Heymanns, Munich, 2002. However it seems that Carnap distinguished between formal object-languages and usually our natural language as meta-language. The artificially constructed object-languages he calls also semantic-systems. The intension-extension distinction seems such to apply to the object-language and semanticsystems being examples of them. It seems however, just on the basis of Carnaps lifelong endeavor to resolve matters of intellectual conflict into matters of different semantic systems, to make sense, as Stamm has done, to try to enlarge the initial concept of intension not just to names, words, sentences, texts but to whole semantic-systems. Yet if we take the case of a legal claim and the context on which it is based, the conclusions to be drawn from it (considered as extension) do not necessarily represent a different semantic system. Thus there could be a question here with regard to the view of Carnap.

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of computer programming but e.g. in matters of law too, and probably in other disciplines of humanities/cultural sciences as well. It shall not be forgotten in that context that about 200 years ago no student and in particular no law student could read such a subject without first having read a basic course on logic. That would seem even more important today, as logic is at the basis not only of many sciences, of the analysis of language but also of the working of all our computers, but it appears not to be generally perceived that way. We mentioned these, rather basic consideration not according to their treatment in modern logic but rather as they may come to mind by dealing with matters of law and justice.145 F) An Intellectual Risk or a Point of Culture As we shall see however below, by dealing with the philosophy of law under the title metaphysics, we open a question mark with regard to a theory of science from the middle of the 19th century146, which holds metaphysics to be something somehow nebulous and overtaken by positivism 147 . That has been consummated by philosophers themselves in the 20th century, who thought, much under the impression of the problematic use of the word metaphysics by the schools of Kirkegaard up to Heidegger that this discipline has seen its day.148 That may have appeared so at that specific time but we have seen that Metaphysics is in fact First Philosophy i.e. referring to elementary principles in
Our text shall not be overcharged, yet mention is also to be made about two related and newly invented disciplines: One is called deontology, meaning the study and theory of duty (deon Greek for duty). That is bound for failure as Justice cannot be reduced to duty. Kant is called a deontologist because he held that moral worth is an intrinsic part of human actions. All this has to do with the active side of the principle of Justice, as shall be shown below. The other is existential. That active aspect has indeed to do with personal virtue appearing as duty. The other discipline is called deontics (Amedeo G. Conte). It started around 1866 also as a science of duty, sometimes called a science of ethical statements. Deontic Logic has been created by Georg H. von Wright earlier, referring to normative statements, the famous ought. It is different from ethics because it looks at the formal relationships between and structures of normative statements (It would such be a kind of specific Logic). It does not care for the values dealt with in those statements. That reminds Kelsen, who is to be mentioned below. It is a subject, which happens to be studied today mainly in Italy and Spain, by citing among others Nozick and Rawls (both to be mentioned below) in its context. One author considers it to be between semantics and ontology (Carlos Alarcon Cabrera). Revealing results for us cannot be reported yet from there. 146 See: Auguste Comte, Cours de Philosophie positive, 6 vols. 1830-42, also: Disours sur lesprit positive, 1844 147 That is indeed understandable in the context of those times. Already Kant had said that in the Vorrede to his Kritik der reinen Vernunft (1781,1787) and Hegel had repeated that that in the beginning of the 19th century that Metaphysics were a word from which everybody would be fleeing at once. See: G.W.F. Hegel, Wer denkt abstrakt? 148 H.Arendt, op. cit. p. 207
145

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all sciences and as that of much value even in regard of the latest technologies today. It had doubtless been a necessary renewal. That approach to science bravely intended to deal purely with empirically ascertainable facts (sancta simplicitas! one might thus exclaim, did one really think that Aristotle, Descartes, Hobbes, Spinoza etc. had not made already precisely and explicitly a point of that). That may explain the choice of the word theory instead of philosophy of law. We have chosen philosophy and mentioned ontology, epistemology, logic and the theory of language because, as said, we want to make a step back from the subject of law, its content and application, and indeed ask here for that, which stands behind the matter also in the sense of that, which is common to its several specific disciplines, such as e.g. public law, private law, law of contracts, procedural law etc. Yet theory from ancient Greek theorein for to see, to consider, to contemplate, to evaluate would also do for that. So lets not loose time by playing with words but to use them carefully and, we shall try also to remain utterly true to empirical facts, at least as much as others, perhaps not disposing of a worse critical apparatus if we are lucky. But the above shows that the knowledge of fundamentals has gone slightly out of sight since the beginning of the 19th century. Law is a science. It belongs to Philosophy and its fundamentals (First Philosophy/Metaphysics) happen to apply to it in a qualified way. We tried to give here a tailor made view of it, more about language, less about the rest. But the close relationship between philosophy and law has far deeper roots. It is Cicero, who has said that the Law has been born and invented by Philosophy.149 So it is nothing but normal that one tries to retrace its character by that approach, yet seen from today. G) Conclusion: Law is a matter of Science and of Philosophy After having gone through the above various analytical aspects the opening title question is to be answered positively: Law is a science, it is philosophy. All fundamentals of philosophy, i.e. of the first philosophy or metaphysics, which happen to be the general theory of science, apply. The study of language theory however is in the case of law more important than others. Yet it is intertwined with ontology, epistemology and logic, with psychology and and naturally with ethics. Law deals with the world under the aspect of human relationships. It is thus of the character of a social science, yet a specific one apart. It is not of the type of a so-called exact science. It is a science of action and it is constantly in

149

Marcus Tullius Cicero, De Legibus, I 17; Tusculanae Disputationes, V, I, Tu inventrix legum..

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action. 150 It records, evaluates, qualifies and decides. Sometimes, but more rarely, it also quantifies. H) Consequence The Meaning of the notion Philosophy of Law Here above it has been referred to the elements of science and of critical thinking. If philosophy is directed to knowedge, philosophy of law requires the knowledge of the Law. As Law (Droit, Recht, i.e., that which is right and correct) and Justice (that which is just and right) carry the same or a closely similar sense, Germanic even by the same root Recht and Gerechtigkeit, they belong together. The areas, where these aspects are mostly dealt with, i.e. where they in reality have their centre of gravity, require thus to be taken into consideration. Isaac Newton said in the beginning of his Principia that he is not going to fabricate (non fingo) hypotheses. It shall be tried here to avoid that too. As it happened it was then G.F. Leibniz who devised a specific method, which should overcome that danger and that in the context dealt with here. He said that clear and definite ideas of terms like Law (Recht) and Justice (Gerechtigkeit) are to be found and the uses of the words established and that this should be done by collecting the more significant ones and by comparing them.151 G.W.F. Hegel said in his Philosophy of Law that a philosophical Jurisprudence (philosophische Rechtswissenschaft) had to deal with the idea of the Law, its Begriff, i.e. the concept of the Law, and with its realization. Here it shall be dealt with the first two, i.e. with the idea of Law and Justice and with their concepts. Hegels third point refers the wide field of practical Jurisprudence, i.e. the application of the Law and the administration of Justice. As said the knowledge of that is to a considerable extent a precondition of any dealing with idea and concept of Law and Justice, yet it remains a specific subject.

150

We cannot help but to make that statement under the present title, although under the aspect of the application of the law that may sound pathetic particularly for those who might have reason to complain about the laws delays. 151 Leibniz, Gottfried, Wilhelm, Elementa iuris naturalis, 4, IV, 1 and Juris et Aequi Elementa in: G.W. Leibniz, Hauptschriften zur Grundlegung der Philosophie, ed. Cassirer, Bd. II, 3.A., Meiner, Hamburg 1966, p. 505 seq.

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III Two general remarks

A) A Practical Look at the Subject The legal matter most often appearing in our law courts are family law, neighborhood law, torts law, drink driving and, only in younger times, drug offences, i.e. criminal law, but then also contract law. All have to do with human relationships. 152 That applies to the law in general. These are rather abstract things, depending on factual, mental and intellectual states and sometimes on the capacities of the ones concerned. That is difficult to judge in particular according to more or less objective criteria. Nevertheless there are general concepts and yardsticks. Men consider them to be a necessity. They are applied just because they concern facts within a community of men. As to do that it is another necessity that one tries to form a general understanding of these concepts and yardsticks. That has a tendency to evolve. Therefore the question about the nature of Law and Justice accompanies many throughout their life. It may be that other intellectual disciplines do not have to ask as pertinently for the qualification of their subject of study. That has its reason in the above. But ask a physicist what space is or what time is?153 Or just try to define the word table. Yet to have a general concept of ones subject of study or activity is then at least helpful, when one has to deal with new areas, new, sometimes uneasy findings, or strange events, as it provides tools to deal with them. In the last decades trade has been liberalized the world over. At the same time new means of communication were put into place. More international contacts, structures and institutions are emerging. The number of legal contacts grows in parallel, the necessity of understanding between the legal cultures accordingly. That were reason enough to have a new look at that, which we call Law and Justice. A myriad of facts, experiences and insights but also contradicting and misleading theories are available. Here, we would like to have a look at some of their rather undisputed main features. Another aspect would be that many new people capitulate before the discussion of the necessary aspects, references and reasons of the law, which could lead to vast areas of growing ignorance and negligence. So lets stick to the first approach.

152 153

See also Thomas of Aquino (Aquinas) , Summa Theologiae, II-II, 57, 4; 58,7 ad 1 We refer here to Immanuel Kant as he had invited in this context to ask e.g. a Logician what truth is, see: Kant, Immanuel, Introduction into Jurisprudence, B. in: Metaphysics of Morals (1797) ed. Ebeling, Reclam, Stuttgart, 1997, p.65

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But our quest for an explanation of law and justice is not to be confused either by that other question often heard from people who always ask what the law really means. They use to say that nobody knew what the law were nor what justice meant, because otherwise they could not quietly go on trying to cut corners in the hope to get away unpunished. Or they cant help making a mockery of a legal rule, at once pushing it to its extreme limits although its object and purpose are well defined. Yet, the above mentioned means of interpretation help even in such cases. So these people put publicly into question what they privately know because they can then deviate while others stick to the just path. Contrary to their obviously interested assertions the understanding of what is just is generally rather clear. People know what it is, as they know what red is or beautiful. The latter is however sometimes said to be in the eye of the beholder. It belongs then probably to otherworldly miracles that girls usually agree about who are the smart boys and boys about who are the pretty girls. Justice is however not as subjective a matter as that, but a similar statement may sometimes apply also to Justice too, at least to a limited extent. That constitutes the basis of further explanations below. Others consider mainly the universal side of Justice. And then there is the rather sensational affirmation by somebody called Democritus, who could not deny that there is a mental reality which is called conscience (from Latin conscientia and that from Greek syneidesis), i.e. something like a parallel knowledge, which happens to be proof of a real fund of mental values which make up that which we call human (see also below). Three things have to be added to that: (a) The evaluation of justice tends to produce different results in different places and among different people.154 That applies however mainly apart from fundamental matter. To steal, to breach a contract or to exploit the weak for example is rarely considered right or just. (b) Even if people were to behave ideally, deliberations about justice would remain necessary because (1) different people can (subjectively) have different concepts of what is just in a certain specific case155 (2) because of the complexity of the facts concerned, (3) because of the complexity of the rules concerned, because (4) of the fact that the relationships between facts and rules can develop their own complexity. (5) Facts in question involve rights, which
Compare to that point the famous 18th century work of Charles de Montesquieu, de lEsprit des Lois, which happens to be one of the basic works having influenced the making of our modern constitutions. 155 A rather simplistic but famous example is the appreciation of the remuneration for work of equal kind and quantity but unequal market value within one large legal system. It can also easily be seen with regard to specific rules in certain agreements, i.e. a rental agreement, the purchase of a house etc., etc.
154

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often correspond to interests. They may change, may come and go, may switch into another mode and change in other respects. (6) The more persons are concerned the more questions can come together and add to that complexity. That can easily lead to errors and conflicting views. While all that speaks for the necessity of a careful consideration of law and justice it does however not mean that no betterment individually and socially should be searched for. A good general standard of morality can render superfluous many laws. There is an opinion from antiquity, which says in view of this, that education is more important than laws and furthermore that habituation is better than rules.156 That is certainly so, if the conditions are at least allowing the organization of education and more or less exemplary behaviour. The 20th century and even the past few years have proven that this is not always the case. Law may even appear necessary as to guarantee the most basic conditions of life. (c) It may belong to the manner of how our brains and hearts are made up that we like to have clear, absolute answers to any question. But Law and Justice have to do with that which ought to be. As far as attainable standards are set, they have to be met. Other goals such as the just and equal are clear as such but they are not always fully attained. They may remain elusive to the end. So there is also something like a transitional side to law, as to human behavior, see the above example. That is no surprise as it deals with human existence and behavior and originates out of that. Some answers are fairly clear ever since, others have a tendency to change and to evolve. As Law is no natural science and has e.g. not so much to do with mechanics it is useless to apply their standards to it. Natural sciences deal with tangible facts not with abstract rules, as law has to do. There is a consideration, which appears in many legal contexts and refers to the distinction between specific alternatives. It says that there is no strict line of delimitation to be seen between two alternatives but rather a zone wherein the qualification may change according to the specific criteria available and to their evaluation.157 Such things are however far from unknown even in many natural sciences either. So while the purpose of many legal norms are indeed strict delimitations (statutes referring to voting age, terms of office, amounts of payments due, other due dates e.g. in administrative and contract law, permitted weights, sizes, speeds, forces e.g. in traffic laws and so on) the same cannot apply to the general nature of the norms and their applicability.

156

Plato lets Socrates say that in the Dialogue Politeia (Political System), book IV, 424e-427b: Musonius, see below 157 An example is the distinction between a general and abstract enactment such as a law and an individual concrete order by the administration, see: Jaag, Tobias, Rechtssatz und Einzelakt, Zurich 1985, p. 247

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B) A Political Look at the Subject We saw that our subject has to do with values. Its then no surprise that it is highly political. An excellent work on legal theory158 said that writers who deal with that subject could often not help but to use it to announce their personal political views. This shall be taken as a warning here and we are ready at once to nail our colors to the mast: We have a marked tendency to value the respect for life, the endeavor to truth and to responsible behavior and we therefore consider under the aspect of law, as an a priory at least of constitutional rank, the universal human rights as well as the so-called general legal principles, such as e.g. pacta sunt servanda (contracts are to be performed), the ban on venire contra factum proprium (i.e. to act in contradiction to ones own deeds, which is one of the clearest examples of arbitrary behavior) and due process of the law (the main term for a fair, unbiased and impartial judicial procedure according to clearly and publicly preestablished legal rules) and several more, as shall be mentioned below. These principles are still often cited in Latin. That comes form the fact that some of them originated in Antiquity. But Latin remained the legal language up to the Enlightenment of the 18th century and in frequent use in academic life through the 19th century.

158

W. Friedmann, Legal Theory, 5th ed., London 1967

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IV Traditional Concepts of Law and Justice

The history of law is a subject in itself. What follows here is no outline of it as it appears in many books on the theory or philosophy of law. What we try to look for here is just the terms, notions and expressions used, the senses attributed to and the subjects dealt with in the past by and for the words Law and Justice, i.e. according to the method devised by Leibniz (see above). There is thus no treatment of the cited personalities and legal philosophers as such wherefore a comment of them can turn out to be utterly brief. The short contextual references going with that do not make it a history of law either. Yet such an inquiry is required here as it provides not only an indispensable preparation, but also a revealing introduction and an essential precondition to the study of the subject as such. While the search concerns most important contributions it is not at all claimed that all were found. 1) Man has dealt with and thought about law and justice since quite some time. As said above we know legal texts from ancient Babylon, of ca. 1700 BC, but we have no commentaries about them from that time. One thing we can see however is that the mentioned Diorite Stela shows the picture of a Babylonian Sun-God Shamasch, who was also the God of Justice, in front of the picture of the ruler Hammurabi above the text of the laws. He may well have stood for the authority, which was thought to be behind these rules, guaranteeing the righteousness of their content and their binding force. It is believed that this Babylonian code is a compilation of older summerian laws. It counts 282 sections, dealing with criminal law (false accusations, theft, robbery etc.), familiy law (marriage etc.), inheritance law, but also liability law (damage done by cattle) and so on. There have been found even older codes since, such as the Babylonian code of Eshunna, who reigned a generation before Hammurabi and older Sumerian codes, the so-called Ana Ittisu (c. 2060-1950 BC) dealing with family law, the Code of Ur-nammu, who ruled between 2060-2043 BC, dealing with criminal law and the code of Lipit-Ishtar (the fifth king of the dynasty of Isin, ca. 1983-1733 BC), dealing with hiring of boats, real estate, slaves, defaulting taxes, inheritance, marriage and rented oxen for instance.159

159

A report about these codes can be found e.g. in The New Catholic Encyclopedia, vol. VIII, Washington 1967, p. 546ff.

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It cannot be omitted here to point out that this approach by the Sumerian and Babylonian cultures represents an enormous cultural achievement. It appears light-years away from that other some 500 years older Mesopotamian Culture, we have knowledge of, i.e. that of Gilgamesh, where crude power ruled, not far different from goings on in nature.160 2) From Ancient India we learn that it had already formed a coherent set of ideas concerning Justice and Equity, which may be even older than the rules of Hammurabi. There we find the concept of Dharma. It was well developed before the times of Gautama Siddhartha, religious and social reformer of the 6th century BC, a historical person called Buddha, meaning the enlightened one.161 We are told that Dharma meant the normal disposition of all things or the cosmic order, the norm. The word uses the root Dhir, which stands for to support. It means the contrary of adharma, which stands for not normal. It is related to the concept of Rita, which meant the real order also in a cosmic sense, the use of which it seems to have replaced to some extent in the period of the classical literature of India (see also above). Obviously the West uses a language, which is related to that early layer of Indian culture as Right and Rite are related to Rita. That idea of a universal order is thought to have grown out of the major experiences of man, such as that with the regularity of change between the rainy seasons and the dry seasons and the regular reappearance of the stars in the nightly heaven, which lead among others also to the establishment of calendars. It is worth a thought if and why such institutions as calendars and laws could have evolved together. This can only be stated as a question here. For a possible answer, see below. On the basis of such observations the concept of dharma developed into several distinct meanings, such as the social order, the entirety of all laws civil and criminal, the moral order, the religious doctrine but also duty and virtue. The fundamental structure of the universe and in particular, that relating to the structure of society became extensively treated in the classical Indian literature. These texts seem to have been called e.g. treaty of the good order (Dharmashastra) or tradition remembered (Smrti). A rich literature based on them included legislative texts, which continued to be in use in India until recent times.

160

See e.g.: a new translation by Stephen Mitchell, Gilgamesh, New York, 2004, e.g. beginning of book I 161 We deal here with the general meaning of the term dharma not with the more special one used in Buddhist teachings, where it is e.g. often linked with the idea of suffering (see e.g. The Teaching of Buddha, Society of Promotion of Buddhism, Bukkyo Dendo Kyokai, Tokyo 1966, p. 74 seq.)

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All these texts refer constantly to the ideal of a cosmic order and in one of its widespread interpretations, it is also talked about a primordial substance in that context, in this case it was held to be water. That was long before Thales, who established the quest for reasoning (see above) who mentioned the same idea centuries later. It is known, that Greece had trading links and with that cultural links with the Indian peninsula ever since. More important for our point of view is the fact that dharma was also related to proper behavior. It was and is considered proper under this concept that e.g. a cow eats grass and that a spider eats other insects. It is also translated as equity and fairness.162 3) From the time of about 1200 BC (?) we know Moses Ten Commandments, also called Decalogue, with clauses among others about the worship of God, securing the binding force, and clauses about criminal law, i.e. murder, theft and adultery, seeking by that to secure tribal peace.163 In the same context we find the well known an eye for an eye, a tooth for a tooth, the principle of an appropriate revenge in the old days, also called Talion,164 i.e. the settlement of a claim by equal damages. All this is more similar to the laws of Hammurabi than to the concept of Dharma.165 But in old Hebrew Justice seems to have literally meant behavior appropriate to the community.166 4) That reform movement starting from Hinduism, which is called Buddhism, used the concept of Dharma further. Under the famous Indian King Ashoka (c.273 238 BC), a bilingual edict in Greek and Aramaen had been produced. Therein dharma was called piety, reference, respect in Greek but truth in Aramaeic.167 That may give a taste of the possible margins of difference between various views and meanings applied to words, when language has to deal with ideas, i.e. abstract concepts. In no other field does one have to be more careful and circumspect with words than in the one of law. Life and property may depend on it, i.e. on nothing else but on the care or negligence with words.
162 163

See to that the article on dharma by J.Filliozat in Ecyclopaedia Universalis, vol.7, Paris 1990 Jewish Torah and Christian Bible, Exodus 20.1-17; Deuteronomy 5.6-21. 164 Torah, Leviticus 24:17-22, Christian Bible, Matthew 5:1-12; but also Homer, Iliad, book 6, cited in What is Justice?, Classic and Contemporary readings, ed. Solomon MR. / Murray MR., Oxford University Press, Oxford 1990, p. 20/21, 15/16 165 That finds support in the fact that the commandments of old-Babylonian Schuruppag seem to have preceded it early on. See: Hfle, Otfried, Lesebuch Ethik, Philosophische Texte von der Antike bis zur Gegenwart, 3rd ed, Beck, Mnchen, 2002, Nr. 15 166 W. Pannenberg in: Ethik ohne Religion, Wichern Verlag, Berlin, 1996, Podiumsdiskussion I, p. 76-77 167 See to that also J.Filliozat as cited

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5) Such the idea of law got directly linked to that of a universal natural order. Many of us may sometimes wonder why some people cannot help but to use religious terms when they speak generally about law. The concept of dharma provides an explanation why ancient people and still many people today cannot and do not dissociate the concept of Law from the sphere of Religion and the concept of a Deity. This shows exemplarily in the ethics of e.g. Democritos (460 370 BC). As a Greek philosopher he was mostly concerned with the three classic subjects, Natural Philosophy (e.g. natural science), with Dialectics (which included Rhetoric and Logic) and with Ethics. 168 Ethics concerned the questions about right or wrong, justice and morals. Key terms in his texts were harmony (i.e. order), euthemy (i.e. measured behavior), phronesis (i.e. knowledge and wisdom), dike (i.e. justice or the goddess of justice), aidos (i.e. self-respect and the respect for the other) and famously syn-eidesis (see above). That became our conscience.169 It is thus through Democritos that we became aware that the human mind/spirit has this specific property of something like a second opinion or parallel knowledge. If it is true that it got somehow out of fashion in the last 150 years it were up to the reader to make conclusions about that particular epoch. In that context harmony is considered that key term, which lead Democritos from physics (natural science) to morals (and justice) as the harmonious order of the cosmos was applied to human nature and which was considered to apply therefore also to Morals and Justice.170 That which was the finding of a philosophical mind 2500 years ago became an element of everyday use even today, a reality. It remains a mental capacity. It seems likely that it developed and that it is there with a purpose, particularly in social conditions. 6) Modernity seems not to be able to think anything, which had not been thought already by our ancestors, has been said by poets (e.g. Goethe). The old concept of dharma proofs that again, as the thinking about law and equity of the last 2500 years in the West seems to be reproducing as key concepts just those, which had been found long before in Ancient India and that may lead to the question, whether that concept which was called dharma by the ancients is really alien to us today e.g. in the West, that happens to speak so-called Indo-

Diogenes Laertios, Leben und Lehre der Philosophen (Life and teaching of Philosophers), Reclam, a book from the 3rd century AD, see: book I, 18. That book of Diogenes Laertios was written 600 years after the life and times of the great classic philosophers. Its authenticity is often criticized, yet it draws still directly from the literature and culture of antiquity. As it is cited in many a serious work, we shall not refrain from doing the same in one or the other case here. 169 Democritos, Fragmente zur Ethik, Reclam, Stuttgart 1996, Fragment 264, see also: Introduction by Gregor Damschen, p. 17-19 170 Damschen G., introduction into Diogenes Laertios, op. cit. p. 17

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European languages, or whether we have just forgotten that name171. Yet at once it shall be added that the West uses these key concepts differently, in particular compared to the India of today. Ethics, as we shall see, is in the West not dissociable from the notion of duty and that from an active responsibility. 7) It is to be added that the idea of the just, Justice, may have started to develop in early times. Concepts like providence, law, truth, order, justice, often requiring due interpretation, seem to have been attributed to idols like the above Babylonian God Schamasch and to the Egyptian Goddess Maat. 172 These concepts or principles seem to have started to form around such personalized representations by divine idols. That had given way early on and sometimes elsewhere to clearer and to a high degree impersonal173 concepts like Rita, later Dharma, as just mentioned. It seems thus that there happened an even earlier mental sequence similar to the above mentioned from Mythos to Logos, i.e. the one mentioned here happening already around 2000 BC. 8) When we look at these newer concepts we have to be aware of two things: First, the terms used in these explanations, such as e.g. claim or liability etc., may be the same in sound and letter as the ones we use today in legal practice, yet their meaning cannot be directly compared with the one we use today. That applies even to generally important texts of relatively younger times. Nobody should try to pass an exam, e.g. in contract law, with the terms as used by Thomas Hobbes or Immanuel Kant and their contemporaries. It is not useless to state, that certain of their assertions can be grossly wrong under todays legal technical understanding. The second consideration concerns the authority of the authors cited. For some people the past is everything, for others it is but a nuisance, some say a yawn. It is also here that the principle of the mean applies. It is certain however that many of the mentioned historical personalities were comparatively well qualified for dealing with the matter of law and justice. Many of them had closest
171

Just lately in the year 2003 a linguistic study came to the conclusion that in the context of i.e. Celtic languages words for the same meaning changed in the past in the average every 1350 years. See: P. Foster of the University of Cambridge and A. Toth of the University of Zurich, www.pnas.org./cgi/doi/10.1073/pnas1331158100 172 See e.g.: Hffe O., Gerechtigkeit, eine philosophische Einfhrung, Beck, Mnchen 2001, p.13 ff. Rahls J., Geschichte der Ethik, Mohr, Tbingen 1991, p.16; one author, S.G.F. Brandon on Rites of Passage in: The New Encyclopaedia Britannica, Chicago 1991, vol. 26, p. 806, finds Maat also Mayeth in the famous Book of the Dead (ca. 2300 BC), to be weighted against the heart of the deceased in the course of the judgment of the dead in the underworld. 173 See: Th. P. Van Buren, On Providence, in: The New Encyclopaedia Britannica, vol. 17, 1991, p. 416.

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knowledge of the functioning of the state at its highest levels from their own experience, knew the holders of high offices or were experienced themselves in highest offices and were involved in law making and its enforcement and learned about the relationship between an intellectual concept and its practical application. They could easily compare with anybody involved with those matters today and the basics or general aspects of those matters have not changed much since then. 9) Hesiodos (740 670 BC), an early Greek poet wrote about justice. He is said to have used oriental teachings. He called that which stands for the cosmological order of things i.e. that which was called dharma before, Nomos and that which sees to the order between men (Eu-nomia) and which also brings peace (Eirene) as Dike. The idea of Dike was also personalized and imagined as a goddess (daughter of Themis, the goddess of order, a wife of Zeus, who had brought Justice from Mount Olympus to the Earth). In the famous Admonition for Perses in his Works and Days Hesiodos uses several arguments that shall convince Perses that Justice is better than Injustice. It is the better way in daily business for rich and poor alike. It brings peace and prosperity. Injustice is punished by the Goods, be it by Chronos or by Zeus. Justice stems from Zeus and it is a virgin. The one, who commits evil, will do that soon unto himself too. Animals may be violent but man has received Justice from the Gods (i.e. Chronion, by far the best of all gods). Long is the upward path to Justice, but once up there it is easy going. It is best if someone finds that out by himself but it is also laudable if someone follows good encouragements.174 10) Solon the great poet and lawgiver of ancient Athens (early 6th century BC) had made a pertinent statement with regard to the nature of law. He had said: This I achieved through my power, by combining coercion with justice175 which is also a confirmation of what has been said above, regarding the nature and quality of a law under the aspect of justice. He who was a very just man and who had made many laws said about them, that they are like spider webs that catch something light and weak, while something great and powerful may disrupt

174

Hesiodos, cited from the German translation by Tassilo von Scheffer, Werke und Tage, in : Hesiod, Smtliche Werke, Dieterich, Leipzig, 1965, lines 212 298, p. 110-114, and Theogonie, line 902, p. 93 See also: Bckenfrde E.W., Geschichte der Rechts- und Staatsphilosophie, UTB Mohr Siebeck, Tbingen 2002, p. 34 36; see also Barney Rachel, Callicles and Thrasymachus, The Stanford Encycopaedia of Philosophy, E.N. Zolta ed., 2004, p. 2 of 13 (Internet) 175 cited by Aristotle, State of Athens, chapt. 12

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them. 176 Yet that statement mirrors also a time of political unrest and weak institutions. 11) Another interesting formulation appeared in an Athenian law of the late 6th century BC. One clause began thus: Enacted and tradition is.. 177 . We shall come back to the relationship between tradition and the enactment of a law below. 12) The school of Pythagoras, which flourished around 520 BC and which considered the number as the basic constituent of the entire world, saw in the square, e.g. 2 x 2, 3 x 3, (meaning equal times equal) the perfect symbol of justice.178 We shall sea that this makes sense as Justice refers to as perfect as possible relationships. 13) In Parmenides (540-470BC) famous poem about the world and the knowledge of it, it is Dike, the goddess of Justice, who directs the whole.179 14) Heraclitus (550-480BC) asked the people of Ephesus to defend the laws as much as they defend the city walls. 180 It was the latter who introduced the principle of a normative Logos into his cosmology, what has been called the introduction of a law of God.181 That has also been considered the basis for the emergence of the theory of natural law,182 unconvincingly, one might say, as the principle of Dharma fits far better, is older and more complete and the links between the cultures uncontestable.183

176 177

Diogenes Laertios, op. cit., book I, 58 Aristotle, State of Athens, chapt. 16 178 Mansfeld, Jaap, Die Vorsokratiker I, Reclam, Stuttgart 1988, p. 111 179 e.g. Parmenides, Fragments 4, 9, 11 14 cited in: Mansfeld, Jaap, Die Vorsokratiker I, Reclam, Stuttgart, p313 ff. 180 Diogenes Laertios, op. cit., p.408 181 See J. Barnes, The Presocratic Philosophers, Rutledge, New York 1979, reprint 2002, 58/59 and 127 seq.: also R. Waterfields comment on Heraclitus in: The First Philosophers, as cited above, p. 36/37 182 KBW 33, which naturally is to be seen beyond any doubt in the far older principle of Dharma 183 see to that also note 21 above

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15) Empedocles of Sicily (492-432) spoke of that, which is lawful for all, stretching endlessly through the broad ether and through the vast brightness.184 So it is spoken here of a supreme principle of Law or Justice. 16) A classical example of the famous conflict between positive, i.e. conventional law, made by man made and natural law, which shows up time and again throughout legal history was already at the center of the ancient Greek Tragedy by Sophocles (496-406 BC), Antigone 185 , played quite often today either in the original or somehow adapted. A king, Creon of Thebes, defends the states position and law, i.e. the positive law, in the interest of public order and authority. His niece, Antigone defies this law as she wants an honorable burial for her brother Polynices, officially denied to him as he is outlawed as an enemy of that City-State due to his warring actions against it. She does that out of her personal feelings of decency, right and justice. They clash and Sophocles develops the individual conviction of Antigone, her respect for her brother, her mourning which was understood and accepted by many in Thebes in a growing consensus and lets her position appear as an individual right, what forces Creon in the end to give in and to allow a burial, not avoiding tragic consequences, such as the death of Antigone and her lover, as he comes too late for them. The person of an old blind seer, Theiresias, contributes to getting Creon into giving in, by pointing at the possible negative consequences due to many people siding with Antigone and, as an example of some more archaic views of 2400 years ago, to magic observations around a sacrificial burning of an animal. Yet it is in those times that prominent questions emerged, which still are with us today, and may be posed by our contemporaries as if they had come into existence just now. A modern arrangement of that drama played on our stages inserted an addition, which said in principle: We have known all this for a long time now. It is about time to know better.186 Agreed, so, lets get down to it. But that has in fact already been done to a considerable extent by the establishment of the state of law i.e. the rule of the law the basic principle of the constitutional democracy and by the incorporation of the individual but universal rights into the laws of the land.

184

Barnes, 123, who dealt with that fragment in connection with what we know from Heraclitus as the emergence of a moral law 185 to be found in many editions of classic dramas on todays market 186 A text version by Sarah Woods, played by TAG Theater from Glasgow, Dundee, Scotland, September 2000

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17) It seems to have happened around the time of Sophocles that new men called Sophists, started to arrive in and around the growing activity of education in classical Athens.187 They contributed not really to the concept of justice but they strongly helped to see what it is not. They were no school but they had several views and interests in common. Famous is the statement by one of them (Protagoras, 485-415 BC): Man is the measure of all things 188 , which is sometimes called the homo mensura principle. They stressed human freedom and equality and moreover the right of the stronger (notably Georgias).189 Too bad to observe then, that such views just preceded the terminal decline of the classic Greek culture. It is then to be added right here that the toleration of the arbitrariness of the stronger is precisely the contrary of that which the terms law, in its general sense and justice try to express. They would otherwise become superfluous and not actively, though often reluctantly, pursued for over 2000 years in East and West (see also below). They include first of all a judgment of facts. It is only from a higher position that one may call them facts too, of a distinct (normative) kind, once they have been confirmed for example. They stressed also the value of human nature (physis) versus conventional laws (nomos, nomoi). 190 It may have been a reaction against earlier high minded philosophical teachings, such as those of the Eleatics see: e.g. Parmenides of Elea who, like their early forbearers, e.g. in India, took the liberty to consider daily human experience as illusions, that the Sophists found it suitable to remind people that their basic human condition was dictated by birth and death and the life between and not primarily by man made, positive laws191. The sophists seemed to have liked to generalize specific findings, which applied in fact strictly to specific (exceptional) cases, thus making a mockery of the way traditional philosophers liked to define things.192 Therefore their adversaries like Socrates, Plato and Aristotle rightly said, that they were teaching fallacies. We learn that not from these adversaries alone (remember even here: hearsay makes no proof)193 but from their own writings. An example:Is it right to violate? Yes! Why? because e.g. in the case of a dear relative, who is about to commit suicide it is certainly right to prevent that by force.194 That is an obvious mockery, as the exception is taken for the rule, but just that may have been one of the
187

Not all were new, e.g. Kritias belonged to an old Athenian family, and some came as diplomats from Greek colonies, see: Nestle, op. cit. , p.401, p.306 188 Diogenes Laertios, op. cit. book IX, 51 189 Nestle, op. cit. p. 335 seq. 190 Antiphon, op.cit. and Dissai Logoi, op.cit. p. 99 seq. 191 Antiphon, op.cit. p.90 192 We find another case where somebody had difficulty to cope with critical thinking structures: see Augustinus re: the obsessive doubting by the New Academy, Civitas Dei, XIX, 18 193 E.g. Aristotle, Topica, book nine 194 Antiphon, op.cit. p.90/91, Dissai Logoi, op.cit. p. 99 seq.

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reasons for their successful teaching careers in their time. These laws were seen by some of them as reflecting the interests of those in power, an instrument to oppress the weak. Others held, quite to the contrary, that the law constituted a protection of the weak against the powerful (see also Plato below). Morals were not considered to be based on natural law either, but on social agreements made by man. Such there was a tendency not only to go against the law of nature, as e.g. Plato saw it, but also to go against positive law and to make the case of nature, which was seen as freedom. For an evaluation of good and bad however e.g. Protagoras relayed not on custom and tradition but on mans autonomy alone.195 Georgias refused to be a teacher of virtues and said to care only for producing good orators.196 Yet he happened to teach that if all were well intentioned and intelligent, there would not be conflicts,197 an obvious fallacy in the light of the great complexity of facts and interests and the existence of errors. But there were certainly fewer. It is Trasymachos who supplied a real perversity around justice. He seems to have said that injustice is better than justice and that injustice more useful than justice obviously under the assumption that success was only to be achieved by unjust means, the very mark of badly informed people. He thus concluded that justice were naivety, injustice cleverness and said that great men were entitled to injustice as they are thus able to submit a people. There is not much time to be lost with such opinions, as it is obvious what would be the result if a great number would endeavor to be clever in a trasymachian sense. 198 Despite the material success of some of them and some true and pertinent findings the Sophists struggled thus with the idea of justice that had formed slowly and had required much intellectual labor and civic courage (of generations) in the Athenian Polis.199

195 196

Nestle, op. cit., p. 300 Nestle, op. cit. p. 314 197 Nestle, op. cit. p. 271 198 Nestle happened with the cited work From Mythos to Logos (1940) to be the champion of presenting the Sophists as examples of the Greek Enlightenment (from Thales up to the Romans, e.g. Lucretius). He was obviously of a deep knowledge of ancient Greek literature and philosophy and in particular a specialist on Euripides, whom he considered to be the poet or herold of Greek Enlightenment (see: Nestle, op. cit. p.496 and the title of his first book, Euripides der Dichter der griechischen Aufklrung, Stuttgart 1901). It seems natural that he tried to assemble and to qualify all philosophers, poets, scientists, and the whole Greek intellectual and artistic life in that respect. But the cited examples seem to show, that the Sophists, though certainly adherents to reason and science and thus to Logos, are hardly comparable with the term enlightenment, as that means not only reason and science but also humanity and circumspection. Therefore they correspond rather not with the tenets of Euripides, as also the text cited in our motto clearly shows. This is backed by many qualifications by Nestle himself, e.g. on Georgias, p. 330. Nestles thesis seems thus rather unconvincing. 199 Antiphon, op.cit. p. 89-91

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18) What did the above cited Positive mean precisely? It meant that, which is positively laid down, formally, explicitly, enacted by man (as opposed to nature), but also in the sense of that, which has only to do with matters of fact, not speculative or theoretical.200 19) It is interesting to note that around these times an element had came into the world which did not contribute to the concept of law as such, but one which strived to defend and to teach the concepts of circumspection and truth, virtuousness and justice in person, i.e. ethics. In the East it was Confucius (551479 BC) in China and in the West it was Socrates (469-399 BC) in Greece, who both attracted a school of disciples.201 They both were of the opinion that there can be no justice without knowledge about it.202 20) Platon (428 348 BC), one of the major thinkers about law and justice203, made a strong point against the approach of the Sophists mentioned above. He had been a disciple of Socrates and admired his critical but fair and utterly logic way of reasoning, which had centered mainly on the question of what was to be considered real knowledge, truth and justice. Plato was fond of mathematics and the then newly found mathematical relationships in the harmony of music (by Pythagoras). Yet he was not little suspicious of artists, such as painters and poets, whom he accused to propagate illusions.204 We do not dare to imagine what he would have said about todays media. Two other traits of him are his

The Oxford English Dictionary, 2nd ed. 1989 Re: Confucius (Kong-fu-tze) see Lun J a compilation of his talks (so-called Analects). Re: Socrates, see Platos writings. We could well refer here to C. Jaspers theory of the time of axes (Achsenzeit), which spans a wider context including much earlier Indian Upanishads, biblical prophets, Greek poets such as Homer and Indian and Persian founders of religion, as in a wider sense all these movements had to do with endeavors to law and justice, see: Jaspers K., Vom Ursprung und Ziel der Geschichte, Zurich 1949, yet that goes beyond our subject here 202 Aristotle, Ethica Eudemia, VIII, 3; Metaphysics, 987b Here Aristotle confirms that regarding Socrates, yet it transpires most clearly also from the full text of Lun-J (the Analects) by Confucius. 203 Obviously an intellectual but may be also an rather good athlete in his younger years, a two times Olympic winner in Pankration (something like kickboxing), as the Homepage of the present Olympic Commitee (IOC), 2004, indicates, see: www.olympic.org, also mentioned in: Vanoyeke Violaine, La naissance des Yeux Olympiques et le sport dans lantiquete, Paris 2004. That may be backed by the fact that Plato shows a rather intimate knowledge of gymnastics (sport) and mentions on several occasions a gymnastics teacher (a sports trainer/coach) Ikkos of Tarent, see: Nestle, op. cit. p.256 204 Throughout Politeia (the Republic), see e.g. 595a 607a,
201

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irony on one hand205 and his rhetoric technique on the other: We see below that he puts a concept of high morality into the mouth of a sophist, which appears ironic in the light of the above. Then, his writings are mostly in the form of dialogues. It is not easy to write thus. Yet Plato did it because he claimed that otherwise most of the students would just hear and repeat words and concepts but never really catch the meaning of them. It is clear that ideas get often clearer once they are tested in discussion. Therefore Plato put his thoughts into the form of dialogues.206 a) In one of his later texts, such as the Laws (Nomoi), which came after Politeia (see below), he stated a second concept besides the ideal of the authority of philosopher kings, which in Politeia was considered the optimal solution, namely that of the Authority of the Law207. That text represents the first explicit trace of the principle of the rule of law. It covers therefore suggestions of specific laws, yet less so general considerations about justice. But at its end we find stated two basic truths relating to his concept of justice: First, that the soul is immortal and that it rules over all bodies and, second, that reason controls what is among the stars. And, he adds that good government requires the application of both of these truths to the institutions and to the rules of ethics.208 At the end of Politeia, he states again two basic truths: First, once more that the soul is immortal and second, that the one who wants to fare well has to hold the upward path, i.e. to actively pursue fairness/righteousness and wisdom.209 Plato does no more deal here with his ideal state. He requests simply betterment, practical action according to knowledge and reason210, always bearing in mind that we have an idea of justice like an objective within us211, an idea which is universal and which is conferred upon us by the mentioned immortal soul.

Commentary by the Translator of Politeia, D. Lee, The Republic, Penguin Classics, 2nd ed., reissued 2003, p. 335 206 Politeia, 533a Yet it may also have been a fashion of the time as we see at the same time a politician Shang Jang (Lord Shang) in China also presenting his thoughts in the form of dialogues (See: Probsthain, The book of Lord Shang, London 1939) 207 Bckenfrde E.W., Geschichte der Rechts und Staatsphilosophie, UTB Mohr Siebeck, Tbingen, 2002, p. 92 referring e.g. to Plato, Nomoi, 715d 208 Plato, Nomoi (The Laws), book XII, 967, 968. Indeed Plato says here also that the soul is the oldest of all things and that it rules over all bodies. He goes on saying, that anyone who intends to become a competent magistrate or statesman, has to apply this double truth (immortality of the souls and rule of reason) harmoniously (also the connection therewith to musical theory) to the institutions and the rules of ethics. 209 Plato, The Republic, book X, 621 210 Nomoi, The Laws, just cited 211 What can be understood from this text Politeia, see the following citations and Politeia 520c), see also: Plato, Phaedrus 247d)e)

205

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b) One string of his thoughts lets a sophist, Protagoras, put that into a mythical story (often called the Mythos of Protagoras): When living beings were created and the qualities to protect oneself against evil and poverty distributed, humans got less than their fair share. Prometheus came to help and stole craftsmanship and the fire from Hephaistos and Athena and gave them to humans. He failed however to steal also statesmanship and statecraft which were administered by Zeus. Instead of helping each other, humans thus did wrong to each other. They would have perished this way had not Zeus had pity with them, giving them aidos (self-respect, respect for the other) and dike (justice). But Hermes questioned the modus of distribution. Shall it be given just to some specialists or to all humans? Zeus decided that all should benefit but added as a law, that all those who failed to show feelings of respect and justice should be killed as a disease at the body of the state (society).212 Plato combines in that story law and justice and the respect for the others (sometimes also translated as shyness or more stringent by discipline and manners) with statecraft, i.e. he considers them to form part of statecraft. We shall come across the same connection below. As it happens, that fact and the referred little text also shows the neighborhood of a mythos with a logos, both mentioned above, and it shows that a matter can be put into a story, a mythos, without further reference or then into a logos, which is usually reasoned. The difference according to Plato is truth yet, that is more likely to be discovered in a reasoned discussion (i.e. logos).213 c) Platos Politeia (the Republic) happens to be the first explicit Theory of Justice we know. It bears the subtitle About Justice (dikaiosyne). Its purpose is to discover what justice (Greek: dike or dikaiosyne) is. As to do that Plato discusses the personal constitution of man and his motives. He compares justice to goodness, to intelligence and to a particular, excellent state of mind, a concern, an interest.214 He qualifies it in an idea of order as minding ones own business 215 and in the end as Self-Control. 216 He looks at the political institutions and at their working, out of which justice is supposed to be produced. He inquires all this (mainly the quality of a state and its citizens, and then government, education, epistemology, music, arithmetic, geometry, astronomy, dialectics etc.) and deals in particular with the concepts of goodness but also with beauty (Greek: kalos kai agathos) 217. The Good is conceived as the
212 213

Plato, Protagoras, 320b 323a Plato, Georgias, 523a, cited by Ruth Dlle-Oelmller, Der Mythos vom berleben und guten Leben des Menschen, in: Philosophische Meisterstcke I, Reclam, Stuttgart 1998/2004, p. 25 214 Politeia, 443d) 215 Politeia, 433b), 434c) 216 Politeia, 364a), confirmed in Phaedrus, 247d)e) 217 Politeia, 380b)c), 382e)

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highest and central reference of everything (see also above)218, even of justice219 and it is frequently associated with an upper world and with the Divine220, as the quality of the highest. Plato lets Socrates speak therein, who had in fact to drink the cup of hemlock as the leaders of the then again newly introduced system of government, which happened to be a form of Democracy, had found his teachings to be blasphemous and harmful for the population. It is as if Plato had wanted to mark his disagreement by continuing Socrates project to raise the level of thinking by looking carefully at things and events and in particular by consciously asking specific questions, and asking for reasons, and critical thinking, i.e. an intellectual method which forms nevertheless the very basis of all our sciences and technology (see above). Two of his exemplary approaches to justice shall be mentioned here: (1) Reasons for just behavior and the idea of the regula aurea and a social contract: Many seem to think that injustice and material gain are linked. Plato tries to show why people nevertheless come to act justly. They do this because the harm of being treated unjustly outweighs the benefits of treating others unjustly. We shall find that thought later again under the title golden rule (regula aurea), i.e. Do not unto others as you would not wish them to do to you. 221 Second, the weak ones, suffering often injustice and having but little chance to benefiting of it, have an interest to preserve justice. They do this by joining together to make laws and conventions, calling their provisions lawful and just and arranging for those who violate them to be punished. It appears as a consequence of this, that it is then more advantageous to be just because of the conventions so established. 222 That is the idea of the social contract. (2) The major idea pursued throughout the text of Politeia is the comparison of the just man with the just form of government: Plato compares the human soul to an exemplary Greek Polis. That State has to have the qualities of wisdom, courage, self-discipline and justice.223 It has three classes: rulers/guardians, their auxiliaries (the executives) and businessmen (craftsmen, farmers). Plato compares to them the individual soul, which has according to him also three parts: reason, belligerent spirit, desires. As these are to be held in equilibrium, the classes of the State are too. The rulers are to be philosophic (scientific) minds, i.e. those rulers who are educated to be able to act reasonably and those who have the duty and are able to pursue the highest good, i.e. highest goodness and beauty. They are enabled to do that through an encyclopedic education. Plato
218 219

Politeia, 505a), 505e), 508c)e), 509b), 518c), Politeia, 504d) 505b), 517c) i.e. that which is right 220 Politeia, 379a)b), 380c), 517c), 517d), 221 see also below, re: Augustinus 222 Politeia, 368a) 374e 223 Politeia, 427e)

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compares justice to that condition, according to which each soul is in equilibrium and the classes too, each class performing the task for which it is naturally suited.224 That is an explanation of the achievement of order, which is sometimes also called division of labor225. It is the idea, that everybody has an own place and that he should be and perform in his own place. His freedom is the freedom to act and participate in that community. That is pure dharma and may resemble the later Indian (Hindu) thinking behind the caste system and the same can also be found in ancient China (Kongzi - Confucius). While the cast system in India, particularly for us today, shows the aspect of a rigid and extreme monopolization and separation of professions, the knowledge we have from ancient China emphasized more the order among government functions and social positions (jun jun, chen chen, fu fu, zi zi, i.e. let the ruler rule, the minister act, the father behave as he should and the son as he should, which means proper behavior according to status and was called li)226. Ancient Athens knew also a clear separation of society into four classes, defined according to annual income but not limited to that227. This idea is not entirely alien to us either, yet not in a formalized, nor in a rigid (yet often hypocritical) way. Indeed, functions require competence and merit. Plato finds with Socrates that justice in the soul leads to prosperity and happiness, as it does in the city, by keeping the different parts in harmony. 228 Justice appears under this aspect as a kind of an all including equilibrium or mean. In the process he compares justice to goodness and comes also to the idea of a greatest good for the greatest number (yet conceived from the side of a total maximum). It is clear that also these considerations require an argumentation based on reason in the last instance. d) Plato considers justice like Socrates before him as a virtue and compares it also to truth. It is the fourth of his basic virtues, such as Wisdom/Truth, Courage, SelfDiscipline and Justice, which he considers constitutive for a just polis. 229 He insists that knowledge, not only correct belief is necessary for virtue. 230 Plato finds on one hand the above utilitarian and on the other the more ideal or intuitive explanations for it. The link with the eidos of justice (idea, form), inherent in the world and in man makes the latter also an example of the old concept of natural law, i.e. justice being one of the concepts emerging from
224 225

Politeia, 433b), 434c) White, footnote 23, p.19 226 Kongzi - Confucius, Lun-y (Analects), XII, 11; see also: Fairbanks J.-K. and Goldmann M., China a new history, Cambridge Mass, 1998, p.52 227 Aristotle, On the State of Athens, chapt. 7, referring to the times of Solon, early 6th century BC 228 Plato, the basic idea of Politeia keeping for the sake of justice the classes in a state in equilibrium/harmony as the qualities of the soul; see also: Plato, Nomoi (The Laws), book XII, 967, 968 229 Politeia, 427e), 433d), 487a) 230 Irwing, Terence, Platos Ethics, New York 1995, p.146

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nature as developed by the above concept of dharma. By putting it this way Plato had shifted the meaning of natural law as used by the Sophists insofar as he replaced the emphasis, which they had put on human nature by an emphasis on reason and virtue. e) Plato called justice an eidos (idea, plan) because he saw a special quality in the term justice. He did not consider justice to belong to the world of things, open to experience, nor to that of thoughts but to an own proper world. 231 Contrary e.g. to Aristotle, Bertrand Russell agreed with that (see above), calling it the world of Universals and stressed that it has often to do with specific types of relationships (as e.g. in the words two, between, in or for that matter justice). According to him they can be objects of thoughts but they are not thoughts themselves.232 Such we find the term justice to be in the center of a very fundamental concept and debate in philosophy (see above). f) Plato wrote in a world of 2400 years ago. He is thus roughly eighty generations away from us. It is then not surprising that some of his considerations do no more appeal to us. That applies in particular to his ideal organization of a system of government and of society, which are supposed to produce justice. That he conceives rulers of philosophical knowledge and character we can only admire but that he goes on to freely conceive rather blunt arrangements of personal matter of officials and citizens is problematic. There he suggests among others unnatural restrictions to the personal life of the officials, abolishing the family, by considering women and children to be a matter of community, breeding programs and eugenic selection (with mating festivals) and the secret distribution of children among the classes of society according to their gifts and talents etc. (see Politeia 449b) 471c). What appears shocking to us today and entirely illegal, happened still to be practiced then, e.g. in a state like Sparta, which Plato had came to admire (Politeia 544d) as he was lastingly disappointed with the goings on in his Athenian State. This is an example of cultural differences and the development of ethical and legal values over a span of more than two thousand years. We shall however not forget that it was just then that the development of these values was accelerated e.g. by Confucius and Socrates, by Sophocles (see his Antigone) and in particular by himself, Platon.

231 232

See to that the Platos Galactic Simile in Phaedrus, 247d)e) Bertrand Russell explained that convincingly, see: Russell, Bertrand, The Problems of Philosophy, Oxford Univ. Press, 1912, reissued 2001, e.g. p. 52 seq.

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21) Aristotle (384 322 BC), the main disciple of Plato, continued the search for an explanation of justice, i.e. of that which is just, what he considered to be a basic attitude and a question of character. 233 He held the purpose of justice to be eudaimonia, which means living under a good genius i.e. living a fortunate life.234 This is like an activity, an energeia of the soul according to virtue, virtue having among others two important aspects, implying (a) pleasure (feeling well), beauty and (b) justice. 235 a) Aristotle thus treats justice in a wider context, like Plato and Socrates before him and links it further with the doctrine of the mean and with self-control.236 The term just has a double meaning, which is on one hand lawful, which means observant to custom or rule and that, which is fair and equal on the other,237 thus referring to positive law in the first case and to the general principle in the other. For the aspect of Justice as a general principle he also uses the name of natural law (see just below). It follows that a jurisprudence which is based on the second aspect, like e.g. the English equity jurisprudence, is thus correctly called a jurisprudence of natural law. But Aristotle sees justice also in its rather practical aspects.238 He distinguishes two basic forms of justice.239 Starting from the consideration that it appears unjust that a person takes more than his/her fair share Aristotle considers the cases, which have to do with the distribution of things. He addresses this as distributive justice, which is often summed up in the Latin expression suum cuique i.e. to each one its own. By that is meant that there cannot be spoken of strict equality but only of relative equality. The distribution has to be appropriate. It may seem just to us that e.g. a surgeon earns more than a bricklayer or that the big rugby-player gets a larger piece of cake than his small baby-brother. But Aristotle adds here a sociological consideration and says that people often do not agree on what is to be considered appropriate and gives as examples those who favor democracy and prefer freedom, those who favor oligarchy and prefer wealth and those who favor aristocracy and prefer merits.240 The second basic form deals with what he calls contracts (voluntary and involuntary ones, an untenable view today,
233

This can be found mainly in book V of his so-called Nicomachean Ethics, V.1.3; V.3.2/3 We add here that ethics was in his time one of the three main subjects of Greek philosophy, besides of natural science and dialectics. Nicomachos was the name of his father and of one of his sons. 234 Ross, above, p.198 235 Nicomachean Ethics, book X.4 and 5-9 236 Ross, above, p.209, 214, 216 237 Nicomachean Ethics, V.2.2 238 Nicomachean Ethics, V.5.4; V.7.1-3 239 Nicomachean Ethics, V.5.4 240 Nicomachean Ethics, V.6.2

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combining our concepts of contracts and of torts and not distinguishing clearly cases of criminal law, i.e. their specific criminal aspect and civil law) and covers cases of delivery, payments and of retribution or compensation and speaks of retributive justice,241 defining also the subject of money in the process.242 Also here there cannot be spoken of strict equality but of relative equality in the sense of adequate or appropriate. 243 Just means equal, unjust is unequal. Just is that which is not extreme. Unjust is extreme. Just is in the middle between extreme positions. Justice reestablishes, what tends in one way or the other to be extreme. It reestablishes that middle position, the one of equality. That is the idea of the golden mean. He likens the types of relativity to proportions (geometric on one hand and arithmetic on the other) and finds the important relationship between justice and proportionality and speaks of proportional equality. He does not consider retribution according to strict equality (in the sense of very ancient views with regard to criminal law, see above; or where they apply in todays law with regard to damages such as in torts law) as appropriate under any of these two forms. 244 In that context he also mentions reciprocity, not directly as equivalent with justice but as a cause for social cohesion. 245 He distinguishes also between natural and conventional justice. The first is considered to refer to rights and duties universally recognized (i.e. the general idea, which he also calls natural law) and the second being rights and duties created by laws of particular states (i.e. positive law). Aristotle opposes like Socrates and Plato before him an opinion of the Sophists that all justice were merely conventional (positive), i.e. made by man. 246

241

Nicomachean Ethics, V.7.4, also called justitia commutative or corrective justice or rectificatory justice 242 Nicomachean Ethics, V.8.4-7 This is an old definition of money still used in some places up to today, see e.g. Schar Mark, Standardwerteinheit Whrung Geld, Geneva 1989, wherein it is further developed 243 Nicomachean Ethics, V.6.2 He calls the proportions geometric for the justicia distributiva and arithmetic for the justicia retributiva or correctiva. Definitions of these kinds of proportion can hardly been found anymore today. 7 4 = 8 5 (3 = 3, an equality between two differences) is given as the example of an arithmetic proportion, 18:24 = 3:4 (0.75 = 0.75, an equality between two quotients) as a geometric one. Although a torts case seems to require the re-establishment of the situation by covering the damage in money, i.e. by looking for a strict equality between the damage suffered and damages to be recovered, that seems not precisely the way A. saw it, at least not under the title of justitia retributiva or correctiva. See: op.cit. V.8.; others read this as meaning that justitia retributiva or commutativa provides absolute equality between performances. The reader is in this particular case well advised not to loose too much time with all these exercises, as they find no direct correspondence in todays laws and legal activities. 244 Nicomachean Ethics, V.6. , 7. , 8. 245 Nicomachean Ethics, V.8. 246 Nicomachean Ethics, V.10.4/5

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b) His considerations show that Aristotle had a very good knowledge of law. He acknowledged that laws give a guiding principle and have therefore to be general. Yet, he saw, that laws are never able to specifically cover all relevant singular cases. This is according to him not the mistake of laws, but it is in the nature of the matter of law (one might add, as it is to be formulated by the means of language). Therefore, there needs to be a corrective principle for such cases. He provides two solutions. On one hand he cites the principle of equity, i.e. an equitable consideration of the case, as a possible help, i.e. as a correction of the justice of the law, equity being in such a case the higher principle than justice in the sense of observant to custom or rule (see above). On the other hand he says that if there appears to be a lacuna, it should be filled by the judge, acting as if he were the legislator himself, i.e. as if the legislator had per chance visited and seen the specific case.247 Seen from today this is an analysis of deep insight into the matter. He shows us that legal norms are neither mono-dimensional nor devoid of preconditions but that they are based on more general principles, as e.g. on equity. One can also say that a positive legal norm is always including these. A specific positive norm is like floating on these general, broader norms or is made possible by them at all. c) Under the title of The virtue of a citizen in Politics, Aristotle calls Justice a moral virtue (thous aret) and makes another distinction saying that there is not just one Justice but two, namely the one concerning those who govern, i.e. good government, and the other concerning those being governed, i.e. the citizens. He courageously says further that the two positions have in principle the same characteristics, except insight (phronesis), which were reserved for those in government. 248 d) He held firmly that moral behavior can be learned. It is learned by the right instruction and the right examples. It implies not just the understanding of moral principles but an education towards a capacity to apply them which implies to be in a good condition i.e. feeling well. That is why Xenocrates, another disciple of Plato, could say about his educated students: They do that by their free inner Impulse, what they otherwise would only do under the constraint of the law249.

247

Nicomachean Ethics, V.14.3/4, that rule can be found in modern laws, see e.g. the Swiss Civil Code (ZGB) art. 1, II 248 Politics, 1277b 249 Cicero, De Legibus, book I, 3

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22) Another philosopher who was of the same opinion was Mencius (Mengzi, around 320 BC) of China. He is known to have been an admirer of Confucius and he is sometimes cited as a precursor of Hutcheson, Shaftsbury and Rousseau in that he found man to be basically good. This was not at all a nave belief, but similar to the findings of Democritus he held that there was in most men an element of compassion prior to any further thinking and desires. His famous example is the man suddenly seeing a young child on the verge of falling into a well. He found that there rarely is a man, who would not be immediately moved in that case, even independent of whether he would then take action or not. He also was of the opinion that this element has to be developed through education. In the case of right and wrong he does not start by making a moral case but he says that one first has to have the ability to distinguish between right and wrong. His great contribution to Confucius elements of humanity and justice was the insistence on reason and morality. He spoke of a heart as the initial source of that feeling or reflex of compassion but also of shame, courtesy, modesty, right and wrong.250 That fact is essential here in that it shows a conscious and successful observance of the principle of justice in reality i.e. by essential parts of society over more than 2000 years.251 23) It was during the times of Aristotle that an ordinary citizen of Athens first stated an important legal principle, which has to do with the nature of justice itself. While a certain Lysimachos was waiting for his punishment, as the Council of the Polis had decided, Eumelides of Alopeke remarked publicly, that no citizen is to be punished without a decision by a Court of Law, i.e. an independent instance, such pointing to the aspect of objectivity or truth and the rule of law in the primitive sense of the rule of the judge. Such a decision was taken accordingly and Lysimachos happened to be acquitted252. 24) Epicurus (342-271BC) considered Law/Justice to be an agreement with the purpose (utility) not to harm each other.253

250

Mencius, translated by D.C. Lau, Penguin Classics, London 1970, see in particular his foreword, p. 7seq. and e.g. Book II, Part A, p. 74 seq. 251 compare not only the writings of Confucius and Mencius but also the Chinese classic Book of History 252 Aristotle, State of Athens, chapt. 45 253 Cited from: Epikur, Biefe, Sprche, Werkfragmente, ed. and translated by Krautz H.-W., Reclam, Stuttgart 2000, Sprche (Epigrams) XXXI, XXXII, XXXIII, p. 75, 77

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25) After Aristotle the main lines of Greek and Roman thinking converged into a school of thought, that was called Stoa, a most famous and central philosophical movement. It dominated from about 300 BC (founded by Zeno of Citium, originally a businessman, 335-262 BC) to about 180 AD (when Marcus Aurelius, a Roman emperor, 121-180 AD, wrote his Meditations). Not only its longevity but also its teachings and further fate254 makes it clear that we have to do here with the very mainstream of human thought of all times and of all higher cultures. It is to be added in the context that the Stoa liked and tradition and modernity and was very internationally minded, circumspect that is. It was the Stoa that coined the term citizen of the world now about 2000 years ago. Cicero (106 43 BC) an active and experienced roman lawyer and politician did not consider himself to belong to the school of the Stoa as founded by Zeno.255 He understood to follow mainly Socrates, Plato and Aristotle, but he happened to stress the same basic tenets as the Stoa. Although sometimes sounding a little idealist, his considerations are of rather dense empirical content as he was not only a shrewd and successful (star) attorney of Rome, but also a judge, a member of the Senate and then he got elected to the highest office of the Roman Republic, i.e. he became Consul, before falling into disgrace in the civil war that saw the emergence of the domination by Caesar (who valued and respected him) and Antonius (who had him murdered after being strongly attacked by him on convincing grounds in the Senate). It is he who made the clearest formulations on the subject of law out of the concepts of the Stoa.256 He referred for that to the central concept of nature. It is not without a little bit of awe that we recognize that he thought of the same features as the old idea of Dharma and that he likewise derived the term justice via the idea of reason from nature. For him the Gods are the incarnation of reason. The highest God (Logos) is pure reason and pure reason is the highest God. Gods and men are linked by reason. Reason is common to all men. Reason is at the basis of justice and of the law. In Latin:
254

E.g. more than 60 major cultural representatives and church people over the past 2000 years have been considered to be adhering to the main tenets of the Stoa, traditionalists and reformers alike 255 Besides of Zeno it was Chrysippus, who had a decisive influence on the development of the school. His contemporaries used to say: If the goods were thinking, they would think as Chrysippus does. An example: Our computers use logic and logical gates, e.g. not, and, or, if. If is expressed by the combination of not and or. Chrysippus found that out more than 2000 years ago without knowing Boolean algebra, nor modern computers. His thinking about law is brief: He linked ius (Latin for law and/or right) to Jovi, i.e. Zeus/Deus, the highest God. He obviously found it vain to bother further. 256 He was, as a disciple of Scaevola, through Laelius in contact with the circle around the top people of the then emerging Roman Empire, consisting e.g. of Scipio Africanus, the victor of Carthago, Panaithios and Polybios, a pure product of the fusion of Greek an Roman culture but not only that, he happened to become a shrewd attorney and indeed after he had won the case against Verres, the most renowned attorney in his time, before accessing to the office of praetor (judge) and finally consul, i.e. the top government function.

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Lex est ratio summa insita in natura. Justice is at the basis of laws. Formally called laws that are not just, do not deserve that name.257 It was after Plato also in Ciceros texts that we first find the use of the words humanity and human behavior.258 26) Centuries later these considerations happen still held to be valid. In 393 AD the Roman Empire tried to counter continuous migratory pressures and barbarian attacks by splitting into two parts, an eastern one (Byzantium/Constantinopolis) and a western one (Rome). It was in the eastern part that the roman traditions lived on rather undiluted. When the Byzantine Emperor, Justinian I, directed the reformation and codification of the entire Roman Law after 529 AD, it started with statements like: Ius est ars aequi et boni259 i.e. Law is the art of that which is equitable and good thus firmly linking the term equity, equitableness with the notion of the law and continues in rather surprising words: Justice is something natural. It does not only belong to man alone but to all living creatures (omnia animalia).260 To that was added: Justice is the constant will to grant to each one its right (ius suum quique tribuens).261 It is to be emphasized that this does not primarily refer to the just distribution of possessions but to the application of justice. Under the term law of nature follows the statement: Natural law is that which was taught by nature to all living beings.262

257 258

Cicero, M.C., De Legibus, book I Plato had referred to a right education to make them behave humanly to each other (Politeia, 416c); Cicero, De Legibus, book I, 17; besides of Confucius that is (see: Lun-Y, i.e. Analects), who did not use our word but the concept and whose two main contributions to human thought are precisely the concepts of humanism and justice (cf. D.C. Lau, foreword to his translation of Mencius) 259 Corpus Juris Civilis, D.I.1.1. (Celsus) 260 Corpus Juris Civilis, D.I.1.1. 261 Iustitia est constans et perpetua voluntas ius suum cuique tribuere. See: Corpus Iuris Civilis, Institutions, Book I.I. 262 Ius naturale est, quod natura omnia animalia docuit. See: Corpus Iuris Civilis, Institutiones, book I, II

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To that which summed up the quintessence of centuries of legal thinking and practice in the classical Greek and Roman world were added three precepts of the law. They were called: 1) Honeste vivere - living honestly 2) Neminem laedere - not causing damage to anybody 3) Suum cuique tribuere giving to each its own 263 This high line of thinking out of dense experience with law got changed and partly lost in Rome with the transformation and finally the decline of its (western) Empire. It is may be not vain to remind to seemingly hard realists of younger times that the men who had said that, knew life in all its aspects and that there is no hint that they would have needed any of our insights into business or political tricks and subterfuges. Cowards they were certainly not. 27) Shankara (also Samkara, around 800 AD) who completed the old Indian philosophy (that of the Vedas, his contribution being called Vedanta) did not talk about Justice but about Ethics, like the Greeks before him. For him the ethical endeavor consists in a progressive approximation to the highest Good. Of all items in the universe, the human individual alone is the ethical subject. Man knows that he has relations to the two worlds of the infinite and the finite. This is not a mere poetic vision, but the sober truth of philosophy. The infinite ideals of truth, beauty and goodness operate in him and enable him to choose and to strive for their greater expression. Egoism is the greatest evil, and love and compassion the greatest good.264 28) Already around 400 AD, a Roman Citizen of North Africa, Aurelius Augustinus from Carthago, a part of todays Tunis, sometimes professor of rhetoric in Milan and later Christian Bishop in Hippo near todays Tunis, changed the understanding of that Logos (Reason) by using the word God for it, but in a very personal sense. He seems not to have known the concepts of Brahman and Atman. Out of an all inclusive and rational order of the world came a divine order of the world. The concentration on the oneness of the divine may appear as a necessary consequence but personification came back in with it. His thinking distinguished between a Civitas Dei (Gods realm) and a Civitas terrena (earthly realm). It attributed and will and reason to God as to man and a lex
Corpus Juris Civilis, Inst. Book I.I.3. We cite this in the words of S. Radhakrishnan, Indian Philosophy, 2nd ed., London/New York, 1929, Vol.II, 462, 612-14; there is a theory which also sees egoism, greed as the contrary to Justice already in Platos Politeia and Goergias, concluding that from pleonexia (greed, egoism) being described there as example of injustice, see: Barney R, cited above
264 263

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aeterna (eternal law) to the former and a lex naturalis (natural law) and in the end lex humana (mans laws) to the latter. All this converged, naturally one might say, as he himself had to concede, that it is in the hart and reason of man, that these laws can be found. He found Justice among men to be directed to true peace and that to be achievable by the mind (spirit) controlling the body and by reason controlling the passions.265 He also said famously: Take away justice and what is a state but a large robber band.266 29) Albertus Magnus (ca 1206-1280), one of the first promoters of natural philosophy in the Middle-Age (see above), commenting mainly on Aristotle, provided an assessment of the priniple of Justice. He held it to be the most complete and most outstanding of all virtues and that with regard to the aspects of beauty and morality, stamping its form on any partial aspect of morals. It contributes to the highest degree to the wellbeing of a community. Referring to Cicero he says that the exercises of other virtues may happen to be prevented by others, the exercise of Justice however never. That concerns legal Justice from which he distinguishes theological Justice, which he considers to be the archetype of Justice. 267 30) Thomas of Aquino (Aquinas, 1225-1274), the student of Albertus, maintained the rather duplicate set of terms of Augustinus, just mentioned above. Yet he combined it with Aristotelian thinking (a major intellectual achievement) concluding that mans purpose is indeed, as Aristotle had said, his/her full development according to his/her talents and capacities (entelecheia). Now the first principle in practical matters, which is the object of practical reason, is the last end; and the last end of human life is happiness or beatitude. The law must thus regard principally the relationship to happiness.268 He dealt extensively with the matter of law and justice in his monumental Summa Theologiae (II-II, questions 57 to 79) and in particular with their essence and nature in questions 57 to 61. Justice is a general virtue directed to the common good (58.5 answer). It is its specific peculiarity to order the relations between men (57.1 answer). As its name says it refers to a certain balance. Balance means that other persons
Augustinus, De Civitate Dei, books 11-22, DTV, 2nd ed., Mnchen 1985, book 19, chapter 27 Cited from: Justice, Oxford Readings in Politics and Government, ed. Ryan A., Oxford University Press, Oxford 1993, Introduction by A. Ryan, p.1 267 Albertus Magnus, Commentary to the fifth book of Nicomachean Ethics (by Aristotle), third lecture on iustitia legalis, cited from Horn Chr./Scarano N., Philosophie der Gerechtigkeit, Texte von der Antike bis zur Gegenwart, Frankfurt a/M 2002, Suhrkamp, p. 120 268 Aquinas (Saint Thomas of Aquinas), The Summa Theologica, translated by L. Shapcote, in: Great Books of the Western World, vol. 18, Aquinas II, Encyclopaedia Brittannica, 2nd ed., Chicago 1990, II-I, IV question 90 Art. 2 - answer
266 265

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are involved. Other virtues refer to the acting man himself. Justice however goes beyond that and refers also to others. It is an objective virtue. (57.1 answer). The object of Justice is that which is just, i.e. the law (57.1 answer, 60.1 answer). Referring to Aristotle Aquinas says further that virtue requires (1) that one knows what one does, (2) that one considers and decides because of an honorable end and (3) that one acts without wavering and that Justice is the most magnificient virtue and neither morning- nor evening-star would be as wonderful. In one place he considered the will to come first in the definition of Justice as to show that its act originates from a free decision. Therefore one could say that Justice is the unwavering will to grant to each one its own (58.1 answer). And, one could say that there would be Justice in a man insofar as it is reason that commands the desires in him (58.2 answer). He further considered Aristotles distinction of iusticia distributive and iustitia retributive, qualified the first to concern the relationship between the community and an individual and the second to concern relationships between individuals and called the latter iustitia commutativa (61.14 ). It follows further from his text, that natural law or the law of nature does not primarily have to do with religion but with the technical distinction between the general nature and idea of Justice on one hand and existing, positive laws on the other (57.3 answer). That then current thinking was dominated by him and by Aristotle and got the name of scholasticism. 269 31) Most of the thinkers about law in subsequent decades, such as Duns Scotus, William of Ockham abandoned the term lex aeterna but firmly maintained that of natural law.270 They, but also Marsilius of Padua, considered law while dealing with the nature of the political system, which had become of major interest in the course of the 13th/14th century due to the struggle between the Emperor and the Pope. These authors still used the language of Augustinus and took up other well known ideas from Antiquity, as mentioned above, such as the purpose of law being peace and order, the golden rule, the social contract and, but also the theory of a unique will (of God) as source of a positive law can be found again and moreover the use of the term aequitas naturalis (natural equity, as by Ockham, writing on behalf of the then Emperor).271 That remained the way of thinking and talking throughout the Middle Age up to the Renaissance and it is still around today.

269

The most important school of thought during these times is named Scholasticism and the men Anselm, Abaelard, Albertus Magnus, Aquinas, the latter two in particular referring to Aristotle. 270 Bckenfrde, E.-W., Rechts- und Staatsphilosophie, Mohr Siebeck, Tbingen 2002, p. 196 202, and 276 and 298 271 See more about this in the Histories of Law, such as e.g. Kelly, J.M., Western Legal Theory, Clarendon Press, Oxford, 1992, reprinted 1999, p.145, Wieacker, op. cit. p. 257 seq.

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The latter consideration leads to a brief look at two main theoretical struggles in a world intellectually dominated by the Church, its orders (religious) and the then few Universities, themselves with strongest links to the Church. They went as follows: One camp underlined the will of the ruling political authority as source of law, while the other saw human reason (as part of the concept of natural law) as more important. Partly intersecting with these views was another pair of competing conceptions. They were labeled ascending and descending theory of government; descending meaning that the law making power is vested in the ruler, ascending, that it derives ultimately from the people, the former seen as a Roman concept, the latter as a Germanic-one. 272 Some authors add, not without reason, that the Germanic people adopted more and more Roman views in law precisely throughout that time.273 32) Dante Alighieri (1265-1321), poet but also precursor of the Renaissance, beeing part of the above mentioned struggle, deals in his Monarchia with Justice. Referring to Vergil he calls her a virgin (see also Hesiodos above) and to be a necessity for the best order of the world. It is of a certain straightness or uprightness or a yardstick, which sends away the unjust on both sides. He compares Justice as a virtue, wherefore the qualities of correctness or good faith apply, with Justice as an activity, wherefore the principle suum quique (to each its own, see: Roman law, above) applies.274 33) Two other strands of thinking about the law stood out at the end of the so-called Middle Ages or the dawn of modernity: The Spanish late Scholastics (Vitoria, de Las Casas and Suarez) and the Reformation (Luther, Zwingli, Calvin, Knox). They form a hinge between antiquity and modernity but because of their utter complexity they can only be briefly mentioned here: The first brought the thinking about law down to earth by linking the concept of the source of law with the nature of man, mentioning the two of its main components, will and moral reason. This meant a new concept of natural law, preceding Grotius insofar as it referred to man and God, not just to God 275 . Moreover they stressed mans autonomy and freedom within a legal order refusing to make a legal distinction between believers and unbelievers, thus avoiding e.g. a distinction between Spaniards or Indios. They formed such a source for the later development of the concept of inalienable human rights.
272 273

Kelly, cited above p. 92; Bckenfrde, cited above, p. 198 Kelly, cited above, p. 93-95 274 Dante Alighieri, Monarchica, cited from Horn/Scarano, op. cit., p. 144-147 275 what was duly acknowledged by Grotius in his De iure belli ac pacis.

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The latter referred again to Augustinus, Luther e.g. having started out as a member of the Augustinian Order himself. He stressed mans split nature along the concept of the split government doctrine of Augustinus, divine and worldly (civitas dei versus civitas terrena), and he sees, like Ausgustinus, the origin of natural law (lex naturalis) in lumen naturae, in the natural light in man. Yet he too contributed at the same time as the Spanish to a more realistic, growingly man-centered concept of the law as he even considered natural law to belong to human law, in itself still dependent on lex divina but belonging to the human sphere, considered by some, an intellectual revolution at that time.276 34) An earlier line of thinking, but which was part of the above intellectual framework, can be found in the rather practically minded teachings of Adalbron, a French Bishop of Laon at the beginning of the 11th century (i.e. half a millennium earlier). He made sure that the Church was considered the first councilor of the king but saw in him the guarantor of justice. In Latin: Rex Lex Pax. The king is legislator and guarantor of peace at the same time. He has thus two natures. He has to take revenge, to punish and to redress (venger, punir, redresser), if necessary by force, but only on careful consideration (en rflchissant sagement).277 The King is thus less seen as a person but as the top function in government.278 35) The terrible experiences with the religious and civil wars in France and Britain, mainly mirrored as far as law is concerned by the works of Jean Bodin (1530-96) and Thomas Hobbes (1588-1679), turned the old world upside down. Bodin puts all the legislative power into the hands of one Sovereign, i.e. the King, untrammeled by any necessity to secure the consent of others and coins the very notion of sovereignty.279 Hobbes combines the idea of the social contract with the concentration of power in the hands of one Sovereign, made up of all the joined wills of the various subjects, whom he calls Leviathan or the Mortall God (as compared to the Immortal One),280 and insists on the purely positive character of the law - Auctoritas non veritas facit legem (Power makes the law not truth).281 Although Hobbes expressly sets out to work in a cool, scientific spirit, it is obvious that these are as political as rational statements. Yet these authors went beyond the mere discussion of the existence of a social contract but
Bckenfrde, cited above, pp. 312 370, 371 - 388 See: Bezbakh Pierre, Histoire de la France des Origines 1914, Paris 1989, 1997, p. 107 278 Compare to that the French Kings, Louis XI, (15th century) admonishment to one of his executives: Vous estes bien officier de la Couronne comme moi. 279 Jean Bodin, Les six Livres de la Rpublique 280 Thomas Hobbes, Leviathan 2.17 281 Thomas Hobbes, Leviathan XXVI
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went on to the consideration of the various elements and functioning of such a contract as the basis for the establishment of the protective function of the law, particularly in Hobbess famous book Leviathan (1651). There he understood natural law as a rule of reason - that every man ought to endeavor peace and therefore hand in his personal autonomy to the one common sovereign and, otherwise he would be free to defend himself. On such a contract of common subjection were then based all further (positive) laws. He calls the first law of nature a precept or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life.282 To that would follow the second law of nature, that each man is contended with so much liberty against other men, as he would other men against himself283, the well known regula aurea again, just in a harsh context. There appears another distinction, already briefly mentioned by Grotius,284 namely the one between a mere counsel and a law, wherefrom Hobbes derives the term command. As one nowadays speaks of the binding effect of a law, just as to distinguish from all else which is not binding, that term may probably have lost a bit of its importance since. Hobbes joins in the Leviathan but in particular in his other work On the Citizen (De Cive) a list of general legal principles, such as pacta sunt servanda (that men perform their covenants made), keeping faith (i.e. Good Faith), the principle of equality and many more285 (see more to that below). Hobbes also said referring to the principle that men perform their covenants made, therein to lie source and origin of the principle of Justice. Bodin supplies a definition of Justice as he states: If I say Justice I mean the prudence of commanding in uprightness and integrity (i.e. Si je dis Justice, jentends la prudence de commander en droiture et intgrit.) obviously thinking of the administration of Justice.286 One cannot help but to ask whether the outrage of the civil wars in France and Britain did much good to the thinking about the concept of the law, as people seem to have started to take the too many exceptions for the rule i.e. to mix up the terms law and justice with the one of mere power. Power can cause order indeed. But can it order justice? That would only then be the case when justice and order were entirely synonymous. That is obviously not the case, as one of the two words would become superfluous. The exception is the case where there is lasting disagreement among the ones concerned. Then the power that is able to establish order is also able to decide by that, what becomes accepted as just. Therefore, general sentences like: It is the law, which determines what justice is, not the other way round. Or, they that have power
282 283

Thomas Hobbes, Leviathan, ed. Tuck, Cambridge University Press, p.91 Hobbes, Leviathan, op. cit. p. 92 284 Hugo Grotius, De lure belli ac pacis, book.I, Chapt.I, XI.1. 285 Leviathan, op. cit. p.100, 105, On the Citizen, ed. Tuck/Silverstone, Cambridge University Press 1998, p. 43,48, 50 286 Bodin Jean, Les six Livres de la Rpublique, Fayard, Paris 1988, prface

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may commit iniquity, but not injustice, or injury in the proper signification,287 may definitely not be upheld. 36) It is noteworthy in the context of such absolutist theories that there had also appeared, already during Bodins time, an analysis of the customary aspects of the law by Jaques Cujas, a French humanist 288 . Thomas More (1478-1535) belongs also to that group and he was indeed a fine lawyer. We shall come back to him below. But lets be aware that he lived two generations before the one of Bodin, wherefore one should not be surprised to find that he adhered still to the old ways as he could not embrace Reformation, which overturned Scholasticism and led finally to a new look, yet not seldom, referring to known concepts. How could it be otherwise? 37) When the young Dutch legal prodigy, Hugo Grotius (De Groot, 1583-1645, thus being of the same generation as Thomas Hobbes) considered the many legal struggles that ensued from the growing colonial, i.e. international, trade of the time he had been one of the leading members of the Dutch negotiating team in the conflicts between the English and the Dutch East Indian Companies he decided that a new look at the law was necessary. He therefore wrote his famous On the Law of War and Peace (De Iure Belli ac Pacis, 1625)289, which not only laid the foundations of international law, but gave legal thinking a new stimulus. He was searching for universally viable legal sources due to the necessities of the new international relationships. For that he had to free legal thinking from the abovementioned, religious shackles. He tried to do that by returning to some terms used by the Stoa and by Cicero and concluded that nature makes that man is looking for human society and by that for just rules.290 He expressed that by saying that rational care for human society is the source of law.291 But man has not only such a social inclination but also judgment and reason.292 All this is so, even if somebody would assume that there was no God.293 294 Thus he found
Thomas Hobbes, Leviathan, cited above, 2.18. See Kelly, cited above, p. 185/86 289 Grotius, Hugo, De iure belli ac pacis, 1625 290 Grotius, Hugo, De iure belli ac pacis (On the law of war and peace), prolegomena (introduction), 9. 291 Grotius Hugo, De iure belli ac pacis, prolegomena, 8. 292 Grotius Hugo, De iure belli ac pacis, prolegomena 9. 293 Grotius Hugo. De iure belli ac pacis, prolegomena 11; and in another place is said that even God could not change such a law of nature, as he could not make that 2 + 2 would not equal 4, op. cit. I. I. 5. 294 Catholic tradition underlines that even this thought has an ancestry: Gregor of Rimini and Gabriel Biel being two authors, who seem to have said that before, see: Bckenfrde, cited above p. 314
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ratio not in the whole nature including man, but in man alone. One could compare his view to some extent with the idea of the social contract as known from Plato and restated during the high Middle Age (see above). It was taken up again by his successors (see below). He touches also upon the customary aspect of law by stating that a legal rule may be based (a) on the consideration that something necessarily corresponds to nature and society (which relates to the above point) but (b) also on the consideration that something happens to be recognized by all civilized people. 295 And he, the seasoned practitioner, who had dealt with the shrewdest businesspeople and buccaneers of his time, no sissies these, added, that even a law devoid of coercive power has not lost all his effects as justice has a genuine effect even on tyrannical minds. 296 In the following he deals with various legal institutions under the aspect of war and peace and in that context also with general principles of law.297 (see more to that below). 38) In the 17th and 18th century legal thinking became more widespread. Its content continued to circle around known concepts such as the social contract (see above). Famous authors are Pufendorf, Thomasius, a noteworthy early fighter against torture and which-hunts, Wolff and Vattel, also restating, among others, the old principle of mutual consideration, i.e. the above cited regula aurea.298 Pufendorf (1632-94) systematized general legal principles under the title of natural law.299 He defined it along one line known from Plato as having its source in mans interest in self-preservation, that leading to mutual assistance and then to a society. The rules of this society, which teach the individual to become a useful member of society, are called natural laws.300 Under the title On law in general he wrote: Human actions arise from the will. But acts of will of an individual are not consistent in themselves; and the wills of different men tend in different directions. For mankind to achieve order and decency therefore there must have been some rule to which those wills might conform. For otherwise if each man, amid so much liberty to will and such diversity of inclinations and desires, had done whatever came into his mind without reflective reference to a fixed rule, the result would inevitably have been great confusion among men.301 As Grotius he looked for the source of law mainly into the nature of man. But by that time one had became more interested in the practical application of the law
295 296

De iure belli ac pacis, book I., chapter I, XII. 1. Grotius, op. cit., prolegomena 20 297 see: Zippelius, Geschichte der Staatsideen, S.98 298 See e.g. already Confucius, Lun-y (Analects), XV,24; Plato, as cited above; also the Christian Bible, Matth.7,12 299 Pufendorf, Samuel, On the Duty of Man and Citizen According to Natural Law, ed. Tully, Cambridge University Press, 17 seq., 120 seq. 300 Pufendorf, op. cit. p.33-35 301 Pufendorf. op. cit. p. 27, under title On law in general

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and repeated without embarrassment also short summaries of Aristotles approaches to justice and the absolutist definition of law.302 Wolff followed in the steps of Pufendorf and extended the idea of natural reasonableness as the initial key concept not only for a rational legal order but also for an international one. The idea of general legal principles contained the universal human rights, or natural rights, today also called fundamental rights or constitutional rights, i.e. the individual rights of man. While Thomas Hobbes mentioned the respect of equality as a duty 303 maybe on the basis of the Levellers Agreement of the people (1647), that did the same before and, what was then also treated by Pufendorf304, it is Christian Wolff (1679-1754) who derived freedom, equality, security and selfdefence clearly as individual rights from mans nature. 305 (See more to that below.) 39) It is to be added that during this time Baruch Spinoza (1632-77) published his philosophy in the Netherlands (1670), wherein he followed the above line of thinking but also linked law to power, insofar as he held that the law of nature extends as far as natures power and that everybodys right reaches as far as his power. 306 He also came out of a time of constant war and saw obviously an eminent practical aspect, namely that a rule remains without effect if there exists no corresponding control and he considered that fact constitutive for the concept of the law. As we shall see that is true but not sufficient. Despite of his careful and disciplined writings, adhering to the theory of the social contract and the golden rule, which were by then accepted standard, that was often not understood as such but misrepresented as an invitation to the arbitrary and likened to the extreme views of the Sophists (see above).307 It is to be admitted however that also he, like Hobbes, saw the absolute power to be free of any control by the law, yet he favored a limited transfer of power to the government. 40) John Locke (1632-1704), a contemporary of Pufendorf of Germany and Spinoza from the Netherlands stands in the tradition of those legal philosophers who cared for the construction and working of the state by trying to build a system that secures law and justice. He thus became one of the fathers of modern
302 303

Pufendorf, op. cit. p. 30,31,27 Hobbes, On the Citizen, op.cit., p.50 304 Pufendorf, op.cit., book I, chapt. 7, p. 61 seq. 305 Wolff, op. cit. 306 Spinoza B., Tractatus Theologico-Politicus in: Chief Works of Benedict de Spinoza, translated by R.H.M. Elwes, New York, 1951, Chapter IV, p. 57 seq., Chapter XVI, p. 200 seq.: Tractatus Politicus, in the same publication as cited, Chapter II, p. 291 seq. 307 An obviously absurd reproach as nobody was probably more sophist than the trading communities of the time themselves.

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constitutional law. He perfected the theory of the social contract by specifying the structure and working of government thus creating the main features of modern systems of government, including the famous principle of the separation of powers and firmly establishing the underpinnings of the rule of law. He also devised the legal basis of the natural rights of man. According to his theory of law, justice had the purpose to preserve order and beauty,308 new for modern times and full of grace indeed and, may be true. Morality is the rule of mans actions for attaining happiness.309 He takes over the then modern view of that which was at his time called law of nature. Man is a being of society. He forms a compact as to preserve the society mainly by the rule that one should not harm another.310 20 years later he calls it the rule of reason and of common equity for the purpose of mutual security311 But it is to be left to the study of the reader to say whether John Locke attained the level of insight of e.g. Plato, Aristotle and the Stoa, by reading for instance in his Essays on the law of nature.312 He called it there that which is in accordance with right reason.313 41) That convinced Montesquieu (1689-1755), a Magistrate in Bordeaux, and he set out to perfect that theory and to add his considerations.314 He saw on one hand the variable influence of factual elements on the content of laws, such as natural, cultural, economic conditions, e.g. the nature of the land, the soil, the climate, professional activities of men etc., which he called relationships and on the other invariable ones, as the search for peace or the idea of fairness as being prior to any positive law.315 Relationships (rapports) he considered to be the essence of law and justice.316 He tried a nice falsification of the absolute belief in positive laws: To say that nothing is just or unjust but what positive laws ordain or
Locke, John, Political Essays, ed. Goldie, Cambridge University Press 1997, p. 278 Locke, op. cit., p. 267 310 Locke, op. cit., p. 270 311 Locke John, Two Treatise of Government, ed. Laslett, Cambridge University Press, 1997, p. 272 The above cited work Essays on the law of Nature (1663/4) preceded Two treatise of Government (1688) by 24 years exactly 312 Locke, Essays on the law of Nature, op.cit., p.81-127 313 Locke, Essays on the law of Nature, op.cit., p.82 It shall not be discussed here a maybe earlier philosophy of Law of highly esteemed John Locke, contained in his An Essay concerning Human Understanding, Book II, Chapter XXVIII, op. cit p. 316 seq. because he repeats Hobbes problematic link of the nature of Law to power and because he tries to distinguish a Divine law, the measure of sin and duty from Civil law, the measure of crimes and innocence and from Philosophical law, the measure of virtue and vice, which risks obviously to turn out inoperable because these notions might intersect considerably in todays understanding. 314 Montesquieu, De lEsprit des Lois (1748), The Spirit of Laws, ed. Cohler/Miller/Stone, Cambridge University Press, 1989 315 Montesquieu, op.cit. book 1, chapt. I 316 See: De lEsprit des Lois, chapter one, first sentence
309 308

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prohibit, is to say that before a circle is drawn, it would not ne be known that all its radii were equal. 317 No surprise that one called his time the epoch of enlightenment or the age of reason. 42) To that epoch belonged also David Hume from Edinburgh (1711-76) and less so the earlier Giambattista Vico of Naples (1668-1744) both of whom contributed to the idea of the relativity of law through various environmental influences318, put into context by the experienced lawyer Montesquieu, as mentioned above. Hume, important in the field of epistemology, criticized for those reasons the accepted wisdom about natural law, as he understood it. He influenced the style of thinking of the times as he introduced an anti-mystical, scientifically minded way of thinking also into law319. Of Justice he spoke however in the highest terms using the same words as e.g. Albertus Magnus, which were Aristotelian (no moral excellence is more highly esteemed), stressing its importance for the existence of a community and its importance as a value of education. He highlighted the aspects of equity, of the contractual aspect, of good faith, straightness and uprightness and the concept of an internal court of justice (foro interno).320 The necessity of Justice is the sole foundation of that virtueand has the most entire command over our sentiment. He duly came up with the term utility and public utility by which he understood the well-being of people. He could not cope with Montesquieus structural explanation of Justice (see above) but insisted on a psychological- and seemingly economical one, although speaking of the interest of society but under another aspect, namely to obey the magistrate and his laws equating justice also to honesty.321 Edmund Burke (1723-95) on the other hand attacked natural law on the basis of a probably incomplete understanding of it, by pointing to the organically grown legal systems thus re-emphasizing again the age-old idea of the customary aspect of law,322 which happens not at all to be in contradiction with that (see above). 43) As Bodin and Hobbes postulated absolutism in the aftermath of the religious and civil wars, this absolutism, seemed to have become a reality. In fact it was much decried as such but in fact legally more and more structured, i.e. restricted. Nevertheless that was the reason for Rousseau (1712-78), the citizen from

317 318

Montesquieu, op.cit., p.4 see: Kelly J.M., op.cit., p.271/72 319 see: Kelly J.M., op.cit., p. 271 320 Hume, David, An Enquiry concering the Principles of Morals, ed. Beauchamp, Oxford Philosophical Texts, Oxford 1998, section 3, of Justice p. 83-98, 83 321 Hume, David, op. cit., p. 93 and footnote 12 on the same page 322 see: Kelly J.M., op.cit., p.274

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Geneva, to praise freedom, equality and social justice. 323 He thus contributed to the theory of the fundamental rights of man. If we take the picture of a triangle or a pyramid, Bodin and Hobbes saw the importance of the top. Rousseau was shifting the view back to the basis. It is not the place here to deal with his thinking about the volont gnrale and representation etc. that belongs to constitutional law, but merely with his contributions to the concept of law. To that he added something original. Like the Greeks, Thomas Hobbes and John Locke before him he also started from the consideration of the state of nature of man, looking there for elementary motives of man or behavior pattern, which could lead to a norm. Like them he agreed that (a) mans interest in his own well being is certainly a general fact. But he considered like Mencius, Hutcheson and Shaftesbury before him, who had spoken of a moral sense innate in man, despite obvious deviations, (b) a natural repugnance to seeing any sentinent being and especially any being like ourselves suffer or perish, also to be a fact.324 (c) It is from the cooperation and combination our mind is capable of making between these two principles that all rules of natural right seem to flow.325 That leads on to the social pact. He considered thus that each man in all things prefers the greatest good of all (Hutcheson), to be a fundamental universal law that flows immediately from the social pact. He was lead to consider the idea of a social contract to precede all other legal concepts. He looks there for the foundation of the principles of just and unjust, not in the particular relations of man to man.326 Distributive justice, i.e. suum cuique or to each one its own and the regula aurea for instance are supposed to follow from this.327

323 324

Zippelius, Rheinhold, Geschichte der Staatsideen, 9.ed., Munich (Beck) 1994, p.110 That is naturally the famous example cited by the Chinese Philosopher Meng Ze (latinized as Mencius) living around 320 BC, see: Mencius, translated by D.C. Lau, Penguin Classics, London 1970, book II, Part A, 6 325 Rousseau, Jean-Jaques, The discourses and other political writings, ed. Gourevitch, Cambridge University Press, 1997, in particular Discourse on the origin and the foundations of inequality among men, op.cit.,p. 126/27 326 Rousseau, Jean-Jacques, Du Contrat Social (1762), The Social Contract and other later political writings, ed. Gurevitch, Cambridge University Press, 1997, in particular: Form of the social contract or essay about the form of the republic, known as the Geneva Manuscript, book II, chapt. 4, 12 and 17, p. 160/61, He probably knew Hutcheson and Shaftesbury, who had published before him and mentioned their famous moral sense innate in man 327 Rousseau, op. cit. point 17, p.161

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44) Immanuel Kant (1724-1804) of Knigsberg (then Prussia, today Russia), was a modern minded, well-informed and well-liked Professor at the University in his hometown. He is said to have been of Scottish ancestry.328 He happened to be highly influential in enlightened circles329 and an admirer both of Hume and of Rousseau. a) He delivered with the Foundations of the Metaphysics of Morals (1785), the Critique of Practical Reason (1788) and the Metaphysics of Morals (1797/98) a new coherent concept of morals and justice. His thinking is present at the basis of our modern constitutions and legal structures as is the one of John Locke, Montesquieu and Rousseau. He showed the functional relationship between ethics/morals and law and rights.330 He also saw the relationship between justice and equity.331 And, he found a basic moral law, which provides also the basis for justice and positive laws, which he called the categorical imperative 332 . Categorical is to be understood in the sense of unconditionally valid, out of pure reason, i.e. not influenced by experience or the miseries of life. He considers it thus to be of an a priori quality.333 Thus one could also call it an a priori imperative. By that he wants to say and he offers a proof for that, that this law is inherent in man, if he is healthy and intelligent, i.e. capable to act according to his own reason. In its general form it reads: Act as if the maxim of your action could become a universal law. In its special form according to Kants philosophy of law it says: Act so, that the free use of your will may coexist with the freedom of everyone according to a universal law. That means that a personal law of action is only then to be applied if it were at the same time fit to serve as a universal law. That provides a moral standard for man. Entered into a social contract it serves as the basis of all further laws. No more nature but freedom was Kants central term, the only innate right of man, equality following from it.334 He reasoned that a living man has a will and that this implies freedom and that the application of reason allows man to restrain it suitably for a life in
328 329

and there is also a Russian City by that name He himself seem to have been highly influenced by his daily visitors Green and Motherby, usually presented as businessmen. 330 Kant, Immanuel, Metaphysik der Sitten (i.e. Metaphysics of Morals), ed. Ebeling, Reclam, Stuttgart, 1990, 2004, Einleitung in die Rechtslehre, B. Was ist Recht, C. Allgemeines Prinzip des Rechts, op. cit., p. 65-66, p. 67seq. 331 Kant, Immanuel, Metaphysik der Sitten, op. cit. p.71/72 332 Kant, Immanuel, Metaphysik der Sitten, op. cit. see: Einleitung in die Metaphysik der Sitten, IV. Vorbegriffe.., op. cit. p. 56, Einleitung in die Rechtslehre, B., Was ist Recht?, C. Allgemeines Prinzip des Rechts, op. cit. p. 65-66, p. 67seq. 333 See above, also Metaphysik der Sitten, as cited Vorrede, p.35 seq. 334 Kant, Immanuel, Metaphysik der Sitten, op. cit., p.76 and Grundlegung zur Metaphysik der Sitten, Dritter Abschnitt

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society, i.e. to act morally, i.e. he does in no way speak of an unconditional freedom. In this process conscience appears like an objective element of justice, literally an inner judge.335 He did not go as far as Rousseau and Shaftesbury with the respect for fellow men but he concluded that though man does not like fellow men too much, he is not ready to let them alone either. David Hume on the other hand had shown that many so-called scientific writings start out with the establishment of facts by using the verb is, but all of a sudden they happen to switch without further comment into the ought mode, i.e. from the indicative mode into the imperative.336 Kant took this up and showed that the establishment of facts alone does not suffice to establish an imperative or a norm. It requires additionally an evaluation of the facts. Therefore he was looking for such a universal, not fact bound evaluation and came up with the above. He also mentioned the practical aspect of the law by saying: Das Recht ist mit der Befugnis zu zwingen verbunden (Law is connected with the authority to use force.),337 referring to the aspect of enforcement. This has been likened not only to the awakening of the theory of modernity (zu sich kommen der Theorie der Moderne), i.e. in moral philosophy, probably thus joining Newton with modern natural philosophy and Locke with modern epistemology, but also calling it a system of rational self-preservation (H. Ebeling), i.e. not just self-control as Plato had said but self-preservation. 338 This seems correct as Justice is a principle which is there for the protection or preservation of individual and common existence (see below). Yet the principle of self-preservation results

335 336

Kant, Immanuel, Metaphyiscs of Morals, op. cit. p. 277,78 Hume, David, A Treatise of Human Nature, London 1734, reprinted from the original, Oxford 1888, Book III, Of Morals, Part. I, Sect. I, p. 469 337 Kant, Immanuel, Metaphysik der Sitten, i.e. Metaphysics of Morals. Ed. Ebeling, Reclam, Stuttgart 1997, see: Einleitung in die Rechtslehre, D. p. 68, contrary to some always violence addicted commentators not at all in the center of Kants definition of law, but saying in an additional paragraph D., that the aspect of enforcement is connected (verbunden) with the concept of the law and explicitly in paragraph E., op. cit. p.68 seq. where he speaks of a mutual enforcement among everybodys freedom 338 The idea of self-preservation is also part of Platos idea of the social contract (see above) but it is worth to be clearly stated under the concept of justice itself. See: Kant, Metaphysik der Sitten, Nachwort by H. Ebeling, op. cit. p. 403 seq., and Ebeling cites another statement by Kant, from Grundlegung der Metaphysik der Sitten, Reclam. Stuttgart, 1984, p. 74, referring to Philosophy as undertaking to be a philosophy of legal and moral practice (praxis): ..die Philosophie in der Tat auf misslichen Standpunkt gestellt, der fest sein soll, ungeachtet er weder im Himmel, noch auf der Erde an etwas gehngt oder woran er gesttzt wird. Hier soll sie ihre Lauterkeit beweisen als Selbsthalterin ihrer Gesetze, nicht als Herold derjenigen, welche ihr ein eingepflanzter Sinn, oder wer weiss welche vormundschaftliche Natur eingflstert. i.e. .. philosophy indeed is based in a difficult place, which is supposed to be firm, yet devoid of being anchored neither in heaven nor on earth. Here it should prove its integrity as originator of its laws, not as herald of those, who whispered her, an implanted sense, or who knows what a guardians nature. (translation by the author) - And that reminds Cicero, praising philosophy as inventor of the law (tu inventrix legum), cited above.

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naturally directly from Platos famous theory of (social) contract being at the basis of law and Justice, as e.g. Pufendorf later explained (see above). b) Lets check if it works: There is the statement that e.g. incest causes many unhealthy or deformed children, not to speak of dangers for sentimental life. If one has the tendency to say too many one has already made up ones mind, i.e. made a value judgment. Kants question would be: Shall I sleep with closest relatives, although knowing that there is a considerable probability that it results in undesirable consequences? Kants way now is to ask further if doing it or not doing it could serve as a universal law, i.e. shall it become a general rule that people sleep with their closest relatives? As undesirable consequences seem by that to become widespread, the answer would be, no. And this has then among many people from antiquity to the present become a norm, either written or unwritten, often forbidding e.g. marriages between close relatives. That can have the additional effect that the eyes, ears and brains of neighbors exercise willingly or unwillingly a rather indirect control. It appears that Kants receipt demands a considerable degree of objective awareness. c) A critique could be that the way over a universal law is not necessary, as the individual appraisal would lead to the same result. Yes and no is the answer. Healthy, well-balanced minds would indeed see the danger and could behave accordingly. But as it happens, our sentimental life can be quite erratic, all of a sudden out of equilibrium and our behavior in danger to become uncontrolled. Then such an additional evaluation and in particular a general tradition, custom or norm can help. It is also interesting to see that the golden rule, also mentioned by Kant, were of no help in this example as it deals with a mutual fact. It is to be added that Kant gave his rule also another form, referring there to the comparison between means and ends: Act in such a way as to treat humanity, whether in your own person or in that of another, always as the end, never merely as the means. 339 Applied to the above example, it proves its validity. Among all the other approaches cited we just isolate these three and sum them up here as to keep the overview: a) Mutual consideration, b) universality, c) end not means. By doing this we notice something interesting. While on the one hand we tend to consider the end/means idea to fit into the mutual consideration idea, we see that in our example the one may work but not the other. By mutually lowering/changing standards we make useless rules that work with a differentiation. Or else, some differentiations may lead to a conclusion, others not, sublime indeed.
339

Kant, Immanuel, Foundation of the Metaphysics of Morals, ed. Valentiner/Ebeling, Reclam, Stuttgart 2000, First Part, p. 79, translat. Kelly, J.M., op. cit. p. 262

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d) Kants maxim is often called a moral law, as it is a pattern of an evaluation, the type of a value judgment, of universal generality. It can be applied in many cases and it is its application that can lead to a specific law, a norm. We learn out of this a threesome structure: 1. (Primary) Facts 2. An Evaluation or Value judgment 3. A Norm. All of these are facts, are each on its own (epistemological) level (see also above). Lets leave it at that for the time being. Today Kant happens to be more present with his moral/ethical theory, which is in fact a legal philosophy, than with his epistemology referred to above. 45) It is but good style to trace Humes and Kants finding of the intervening value judgment between the evaluated facts and a norm to their immediate author. It is Gottfried Wilhelm Leibniz (1646 -1716), the one who had struggled with Isaac Newton about the invention of calculus. Both have independently found it and both are long since recognized as outstanding in their partly intersecting fields of excellence, there being no need for tribal competition anymore. He, a lawyer by trade, found like Solon before him (see above) that Justice is something totally different from power. While the latter is clearly factual, the former is not. And, in a time that started to ask for the elements of Justice and Peace due to international developments, he said that it is important in that context to say what Justice is, such as to have the necessary foundation of the legal order: If justice is a term that makes any sense, then we should be able to define it.340 He did that without going further than the ancient concept of the abovementioned Corpus Juris Civilis and notably Ulpian (see above) and besides that he referred as Plato to harmony.341 But one thing he underlined as did Aristotle is the fact that the principle of Justice has to do with proportions.342 As seen, it was Kant who went on to supply a specific definition.

340

Leibniz, G.W., Mditations sur la notion commune de la Justice, in: G.W. Leibniz, Hauptschriften zur Grundlegung der Philosophie, ed. Cassirer, Bd. II, 3.A., Meiner, Hamburg 1966, p. 510 341 Leibniz, G.W., Mditations sur la notion commune de la justice op. cit.506-516; Confessio Philosophi, in: Leikauf Th., Leibniz, Diederichs, Mnchen 1996, p. 41-43 342 Leibniz, Juris et aequi Elementa in: Hauptschriften.., op. cit., p. 504

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By putting it this way we are rather brief in dealing with Leibniz on Justice because he had in fact built a huge system of natural law and he dealt with the revolutionary attempt to deal logically with the concept of Justice. 343 For that purpose he devised the concept of Universale Gerechtigkeit als klug verteilte Liebe zu allen (universal justice as sensibly distributed love of all),344 Liebe (love) meaning in that context sich am Glck anderer erfreuen (enjoying the happiness of others),345 thus obviously starting from the concept of harmony and reminding the principle translated as benevolence e.g. mentioned by Confucius (i.e. Kongze). Here it cannot be dealt with that logical attempt further as that would go beyond the scope of this work. 46) Since Hugo Grotius the discussion of the concept of law and justice had become more structured and specific subjects within it, such as general principles of law and individual rights got distinguished. It is also fair to say that the 17th and the 18th centuries were generally dominated by the idea of a humanist 346 natural law more or less according to the concepts of John Locke 347 as mentioned above. It is then significant to see that the American Revolution, which reflected all this, distinguished in its famous Declaration of Independence (1776) between laws of nature and natures God and stated: We hold these truths to be selfevident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness. Although on one hand standing in the classic legal tradition and postulating Socrates and Aristotles eudaimonia (i.e. the pursuit of happiness), it is on the other the element of order, which seems to be a precondition which got not the same emphasize and could not get it under the given conditions but followed later in the constitution.348 The interesting aspect under the title of the legal concept is however, that one did no more look for reasoned grounds of such a proposition, but boldly asserted the self-evidence of it, probably just as to isolate it from the aspect of a certain order, which could have that famous tendency to getting crusty. Again as in the high middle age and the religious and civil wars, the political influences on these propositions became stronger. The obvious danger is the distortion of issues and one of the most significant examples for that will follow below (e.g. Austin).
343

See to that: Leibniz, Frhe Schriften zum Naturrecht, ed. Zimmermann H./Busche H., Meiner Hamburg 2003, p. 215 seq.and Brief an Louis Ferrand, 31. January 1672, p. 375 seq. 344 See: Schriften zum Naturrecht, op. cit. 215 seq. 345 See: Brief and Louis Ferrand, op. cit. p. 375 346 Humanist used here in the sense of man-based as found under the concept of Hugo Grotius 347 Sometimes the name of Christian Wolff, mentioned above, is cited instead in this context. 348 It is well known that Thomas Jefferson drafted these words and that Alexander Hamilton was one of those circumspect spirits, who agreed with that but cared moreover very much for the functioning of the whole system. See his contributions in The Federalist Papers.

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47) Besides of the specification and the generalization of the concept of law and justice, just mentioned above, there was a further general trend. During the 18th century thinking about law went hand in hand with the postulate of codification, i.e. recording (lying down) that which was used or considered just. That meant classifying and systematizing the various existing commentaries into concise and coherent legal clauses and finally into systematic codes of law. At once one saw that legislation also obeyed certain rules: Not too many clauses not too few, nor too specific clauses nor too general ones (see more to that below). We have knowledge about such facts since Hammurabi, Solon and the awareness about the meaning of the term law. On one hand the century saw the birth of written constitutions, United States of America (1787), France (1791), on the other enlightened Governments wanted to apply the dominant concept of natural law, i.e. reason, in reality. This meant that one did not only convert existing unwritten customs into written norms349 but one tried to codify large areas of human activity according to reason. It is a fact that many a government then learnt that the rational approach did not work alone but that it was important to pay close attention to the habits and customs of the real human societies concerned 350 (see more to that below). 48) Another theory emerging by that time (the second half of the 18th century) concerns the topic of judicial review. If there is a system of laws it seems necessary, with a view of it being as just as possible, that it is coherent, i.e. that it is as non-contradicting as possible. Therefore there should be a possibility of control throughout the whole system according to a basic standard, such as a constitution. One may think of the principle of procedural equality, of due process, for instance, to be granted in a law on civil proceedings. We anticipate this topic here as to keep the chronological reference yet it shows its importance for the concept of law clearly under the aspect of systematization, which is to be seen in the beginning of the 19th century. But it has to be said that the French Physiocrats saw that already in the 1760s351 as did Alexander Hamilton of the USA in 1787/88.352

349

Yet in a time of modernization very practical considerations, not least the observance of the principle of equality under the law, asked for a reorganization, clarification and coordination of the many scattered often all too local customs, see e.g. the major endeavours of Chancellor dAguesseau in France of pre-revolutionary times. 350 Wieacker Franz, Privatrechtsgeschichte der Neuzeit, 2.A. Gttingen 1967, 19, p. 322/23 ff. 351 Kelly, op.cit. p 279-82 352 The Federalist Papers, Nr. 78: Hamilton

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49) The reaction in Britain to the codification movement abroad but particularly to the events in America and revolutionary France was vivid. We have seen that David Hume attacked the concept of natural law, out of a scientific spirit. The parliamentary orator and conservative partisan Edmund Burke however reacted passionately to the goings on in revolutionary France and America, which led him to praise tradition and to criticize the rationalizing concept of natural law. He being a member of an omnipotent Parliament dictating whatever it pleased, this strikes as somehow ironic. That went on with Jeremy Bentham (1748-1832), although espousing the postulate of systematic codification, who came up instead with one original and one rather martial definition of law. Rousseau and in particular Hutcheson, had spoken about the greatest good of all and Plato long before them (see above), Bentham went on to devise his utility principle, a measure of government, depending on whether or not the tendency which it has to augment the happiness of the community is greater than any which it has to diminish it and, he considered that also to apply to law. 353 It refers to the greatest happiness of the greatest number.354 His second definition stems from his Of Laws in General and reminds the power aspect mentioned already by Solon and by Spinoza and the views of Bodin and Hobbes. It refers to an order by a sovereign backed by sanctions and is formulated in such terms that one really can imagine people bending under the whip of some henchman. 355 It seems as it were also a reflection of the then diminishing powers of traditional Monarchy. Alexander Hamilton of the USA had used a similar definition, insisting on the importance of the coercive aspect of a law, i.e. the powers of a government and in particular its executive department.356 Kant had said that in a similar way: The law involves the authority of enforcement (Das Recht ist mit der Befugnis zu zwingen verbunden.)357

353

Bentham Jeremy, Principles of Morals and Legislation (1780), Lafleur ed., Hafner, New York, 1948, chapt. I.I. 354 It has to be said that Hutcheson (1694-1746), a Professor for Moral Philosophy in Glasgow, devised the formulation greatest happiness of the greatest number. He had been influenced by Shaftesbury (1671-1713), who himself was a pupil of John Locke and had taken up views form Plato, Aristotle and the Stoa, and opposed Hobbes premises that man was in the natural state in a state of unavoidable warfare (homo homini lupus; bellum omnia contra omnes) but postulated that a moral sense were innate in man. Rousseau may have known both of them. And Bentham seems to have called it also the felicific calculus, Kelly, op.cit., p. 287 355 Bentham, Jeremy, Of Laws in General, 3 356 The Federalist Papers, Nr. 15, Alexander Hamilton 357 Kant, Immanuel, The Metaphysics of Morals, Introduction into Jurisprudence, D, op. cit., p.68

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50) G.W.F. Hegel (1770-1831) presented seinem Amt gemss, i.e. according to his duty, 358 his philosophy of law in 1820. He started in the Vorrede (i.e. introduction) by making the much criticized statement: Was vernnftig ist wirklich und was wirklich ist, ist vernnftig, (i.e. What is real is reasonable and what is reasonable is real.). 359 He goes on to say: Recht ist etwas Heiliges berhaupt, weil es das Dasein des absoluten Begriffes, der selbstbewussten Freiheit ist, i.e. Law is something holy because it is the existence of selfconfident freedom. And further The basis of Law is really the spiritual and its closer position and its starting point is the will, which is free, such that freedom makes out its substance and purpose, (i.e. Der Boden des Rechts ist berhaupt das Geistige, und seine nhere Stelle und Ausgangspunkt der Wille, welcher frei ist, sodass die Freiheit seine Substanz und Bestimmung ausmacht). Such Hegels idea of Law, which is linked with Justice circles around the notions of spirit (das Geistige), of autonomous will (Wille) and of the absolute concept of an autonomous, self-confident freedom.360 51) John Austin (1790-1859) took up the second strand of Benthams ideas and gave it an even more elaborate form, particularly insisting on the so-called commandaspect, 361 in short: A law is a command backed by sanctions. 362 One might think to hear Hobbes. a) Austins Province of Jurisprudence Determined (1832) is an example of a soberly drafted, thoroughly organized work. 363 It is therefore not necessarily a surprise that he exerted and still exerts a powerful influence on the Englishspeaking, and northern legal world, as Scandinavia also seems to continue to look at him. While the form of his demonstration seems convincing the content
358 359

See: Vorrede, Grundlinien der Philosophie des Rechts That statement seems to refer to Heraclitus logos, in the stoic sense understood as ratio, which had referred to the overall world, the cosmos. But Hegel has based it on Anaxagoras nous translated as reason and understood as governing anything in and of the world, according to the example of natural laws (see: Hegel, Philosophy of History, Introduction, III,1). 360 Hegel, Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse, Akademie Verlag, Berlin 1981, Vorrede and e.g. 3, 4, 30 361 Austin, John, The Province of Jurisprudence Determined (1832), ed. Rumble W.E., Cambridge University Press, 1995, p.21. One can read there: Every law or rule is a command. That is said without immediate reference to the general/special aspect of precisely these specific terms. And further you will visit me with an evil if I comply not with your wish; or, A command is a signification of desire. There follows also a reference to military life. Comment: The question might arise: Is a law then a signification of desire? 362 Kelly, op. cit., p. 313,14 363 Except e.g. the first page of Lecture I, as the reader can easily verify himself, as well as a considerable amount of substantive inconsistencies throughout the text

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poses problems. It is clear that by Austins time not only the military jargon pervaded the post-Napoleonic world but, the concept of natural law had become used in Britain and on the Continent and the aspect of positive law began to dominate.364 But the emphasize Austin put into his long since falsified definition, requires some understanding. Not only did it correspond to the mood of its times, it also corresponded to some extent to requirements of governments since the reformation. Nothing was disliked more, even in times of world supremacy, than subversion by some legal slings and arrows based on concepts with wide room for interpretation such as e.g. that of natural law365, so often invoked by political adversaries. It is here that Thomas More might provide some insight. When the English Government established its full sovereignty and asked for acquiescence to the Act of Supremacy in 1535, Thomas More, the former Lord Chancellor, tragically refused and said in essence, that the parliamentary statute in question were repugnant to the Laws of God and his Holy Church, the Supreme Government of which, or of any part whereof, may no Temporal Prince presume by any law to take upon him, as rightfully belonging to the See of Rome, a spiritual preeminence by the mouth of our Savior himself.366 If anything it is this poignant document that shows the effect a legal concept may have, such as the one of natural law, understood as divine law, as it can lead to paying allegiance to another sovereign. That this is not entirely alien also in our times is shown by declarations of a very similar kind in legal proceedings of the 19th century.367 b) Austins definition, like the one of Bentham and the one of Hobbes before, obviously made such an understanding of the law impossible. Yet there can objectively not be seen any plausible reason why such a danger should exist anymore, as the scholastic world is no more and as it is clear that the concept of natural law had received its most convincing formulation long before Aurelius Augustinus, and had been reinstated to a considerable extent since by Hugo Grotius. The worst it can produce is a confirmation that a law has to be just, what is a given fact, even without it. That is a reality as the pertinence of the type of claim made by Antigone shows ever since (see above). Another aspect is provided by an ever-recurring distinction: Law seen as a willed order of precepts and regulations or law seen as an invulnerable, living tradition. 368 Yet as the

364 365

Instead of many, Kelly, op. cit., p.265, 274/75, 287-90, 304-/05 see e.g. Kelly, op. cit. p. 271,288, 315/6 366 Ackroyd, Peter, Thomas More, 1998, p.385/86 probably citing form the Yale Edition of the complete Works of Th. More. It cannot be excluded that More, the former Lord-chancellor might have known more about the then new people than us today. 367 Kelly, op. cit., 374/75 368 Wieacker, op. cit. p. 36

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following shall show, the always known and experienced customary aspect of the law got confirmed once more. c) But all this does not change the fact that the terms law and justice are distinct from the term power and that command is a rather unsuitable expression as it is the very example of a precept that can have its origin in one irresponsible and uncontrolled instance alone and arbitrariness being one more term which is the exact contrary of the term justice. That the concept of law includes the one of justice has been seen. Important in Austins formulation remains however the aspect that a valid law emanates from a legitimate body. 52) The beginning of the 19th century, i.e. after the Napoleonic wars, saw also in Britain a considerable codification movement, owing much to Bentham 369 and following similar enlightened principles as the one on the continent, even sometimes social ones, but not using the same tags for them, such as natural law, rights of man, equality370 - politics again, international this time. That was the time of John Stuart Mill (1806-73), also the godfather of Bertrand Russell, who highlighted another insight into the concept of law. He caught Antigones claim and Hutchesons, Shaftesburys and then Rousseaus moral sense by pointing at the resentment, which injustice invokes. Mill went on to defend the importance of legal equality and the womens cause 371 and, may be even more remarkable, of the protection of minorities.372 He was however (brought up as the successor of Bentham) the author of a book with the title Utilitarism taking up the strand of thinking, which was present in Hume and Bentham. In his time and culture that seemed to matter. It is not a defense of Utilitarism but rather a defense of the principle of Justice. He has the highest idea of justice but this text sounds sometimes but like a defense of entlightened egoism. May be that was already to be considered a progress in the given social reality. He thus had to complain that people would not see that Justice has also its utility!373 53) Then a new set of theories came out of Germany. Like Burke and Bentham many German lawyers did not trust too much in Lockes and Kants rational systems. Indeed some of the new codes created by the conviction of reason and natural law proved not fully satisfactory in their application. Too often factual (historic)

369 370

Bentham, Jeremy, Introduction to the principles of Morals and Legislation Kelly, op. cit. p.315-20 371 Kelly, op. cit. op. 318/9 372 Mill, John, Stuart, On Liberty, chapt. I 373 Mill, John Stuart, Utilitarianism, ed. Crisp, Oxford Philosophical Texts, Oxford 1998

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circumstances had not been considered sufficiently,374 what was naturally easy to reproach to such a complex new approach. The reaction to it was wild and lasting, what did not change a bit at the fact that the world is run today, 200 years later, mostly on the basis of legal codes or statutes. It is important to see in that context that France under Napoleon had become a champion of the new codes.375 That did not help their popularity in occupied countries (such as Germany temporarily) nor in Britain either. The protest brought the fact of the organically grown consensual structures, i.e. the customary aspect once again to the fore. It was the phenomena Volk and Volksgeist and Weltgeist (spirit of the people and world-spirit) and History which were invoked as moving causes. While Montesquieu had analyzed the Esprit des Lois in a rather rational manner, that Esprit (Geist) got now a romantic character. Romantic historicism is then sometimes used as name for these views. History makes the law, said someone just lately to the author, and explained that with a new party being swept into power somewhere, what had made that some basic legal clauses got changed fundamentally. A famous opponent to the new codes was Friedrich Carl von Savigny (1779-1861), who saw history or tradition as the quintessence of that which became law. 376 The time had obviously become ripe for wide generalizations. But he had also said, that the law provides by rules a limit, within which the individuals existence enjoys a safe and free space.377 That shows that one can see law from two sides, either as a restriction to freedom or on the contrary as its guarantor. One coincides with the aspect of will, the other with the one of order. Classic scholars and philosophers, saw history more in the light of an all including reason. 378 Henry Sumner Maine (1822-88) looked at similar causes under a historical and anthropological approach and, like them, had a theory about stages or pattern of legal development throughout history. Much more could be said about these authors under the title of an entire legal history. Yet as said the purpose here is just to try to look at essential contributions to the very concept of law and justice and the main expressions used thereby. 54) The concept of Law and Justice accumulated first the abovementioned elements between India, the East, Greece and Rome, saw a concentration between Augustinus and the high Middle Age and then a certain revival under
This concerned among others mainly a prominent early project, namely the Prussian Allgmeines Landrecht (ALR), 1794, see: Kelly, op. cit. p. 263, Wieacker, op. cit., p. 333ff., which attracted much criticism 375 There had been a considerable development throughout 18th century France not least under Chancelier dAguesseau, who insisted on the constant threat of the arbitrary under the old system of scattered rules and decisions. 376 Radbruch, op. cit., 22/23 377 Savigny, System, I 53 seq., cit. by Wieacker, op. cit., p. 353 378 Radbruch, Gustav, Rechtsphilosophie, ed. Dreier/Paulson, Heidelberg 1999, p. 24
374

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Grotius, followed in the 17th and 18th century by a specification with the development of specific legal principles and human rights, a generalization or standardization with a more or less standardized concept of natural law which happened to go together with the aspect of codification. Kant added to that a reasoned autonomous approach to morality and to law. To that came further the aspect of formal systematization propagated by Bentham and Mill and a whole school of mainly continental lawyers, of whom we cite the name of Georg Friedrich Puchta (1798-1846), the successor on Savignys chair, Savigny, who himself had sought to bring the systematic aspect of a legal order to the fore.379 Contrary to some interpretations, Puchta was starting from the Kantian concept of law and became then much interested in customary law (Gewohnheitsrecht) and Roman law. Roman law lived on as an academic discipline throughout the 19th century because the Corpus Iuris provided a practical collection of useful cases and examples and legal areas and solutions, well ordered and reasoned. This could be developed into a complete system of legal doctrine (or dogma) ready to be considered by legislatiors or courts. As the codification endeavors of the 18th and 19th century did not everywhere produce the hoped for results, these advantages continued to be of interest. The ones who studied Roman law were called Romanists or Pandectists according to the Pandects (also called Digests), the ordered collection of statements of Roman lawyers in the second part of the Corpus Iuris. Those who looked at traditional homegrown German legal structures were called Germanists. Puchta and many of his colleagues belonged also to the above historic school. All this had probably to do with an ever closer look at the aspect of the application of the law and not least also with a change of the discourse and approach to law due to a growing number of professional lawyers and a denser legal community and an ongoing stream of theoretical discourse and publications.380

Zippelius, op. cit., 248; Savigny, Juristische Methodenlehre, 1840, XXXVI, 10, 214 It is certainly interesting to notice in the case of the German example that despite of the deep rooted Germanic legal tradition, the study of the classical roman texts came since the 12th century with growing importance on top of that. Several epochs are distinguished: Glossators, around 12th, 13th century, Post-Glossators, Commentators or Conciliators during the 14th century, nearly all in foreign universities, Usus modernus (of Roman Law) during the following centuries, now in a growing number of domestic Universities, and that these Universities with law faculties produced, after a 18th century with a dominance by the law of nature, again a concentration on the Corpus Iuris Civilis and mainly of its second part, the classic roman legal commentaries, called at once by a Greek and a Latin name, Pandectae (Greek: all inclusive) or Digestae (Latin: well ordered), during the 19th century, what then was called Pandektistik, Pandektenwissenschaft. All this redoing and restudying had many reasons and produced a lot of interesting insights but blurred that which is the law and jurisprudence to an unnecessary extent. Not only the language barrier by Latin, to a lesser extent by Greek but the multi layered presentation of matters, sufficiently complex and abstract in themselves, made out of Jurisprudence a jungle of not seldom contradicting theories. See to all that Wieacker, as cited.
380

379

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55) The undertaking of codification had made people aware of the reality and extent of the reach of the development of law. It presented itself as a complex system, nevertheless showing common pattern between different countries e.g., such as the divisions of law for example. It became obvious that these rules were linked and that there were different levels of laws some more fundamental than others. As they were thought to be coherent, which they should be indeed, Puchta looked at the individual norm and at the individual legal expressions and propositions (Rechtsbegriff; Lehrsatz or Dogma) and considered them organically and hierarchically linked and open to scientific deduction from the top legal norm down to the individual (subjective) rights. The Legitimacy of a norm was thus based on its systematic coherence and rationality. The top legal term was considered an axiom. It was the method of natural science applied to law, which was in the case of Puchta and his colleagues thought as being mainly of customary origin and enacted by parliament. This was later called Begriffsjurisprudenz (jurisprudence of concepts). The scientific approach had already been around for some time, for instance with Hobbes, Spinoza, Pufendorf and Hume among others. One of Spinozas works even carried the title Ethica more geometrico demonstrata (Ethics explained in the way of geometry, published after his death in 1677).381. Puchta moreover saw law as an instrument for realizing morality. 382 The coherence of the legal system was intended to exclude uncertainty and arbitrariness in the administration of law. Therefore one had thought that the judge should just apply the appropriate norm and not develop too much of his own creativity. Ethical or social considerations should not be his business. That lead in France to a school of mere exegesis (cole dexgse) with the famous statement of that, maybe fictitious, law professor: I know nothing about civil law, I just teach the Code Civiler.383 We realize that this tends to go beyond our subject as we could say that we are more interested here in the top norm and its content if it is the quintessence of law and justice. Indeed we look in vain for a further explanation of such a top axiom. Puchta even refused to clarify the rather somber workshop, as he called it once, of the Volksgeist, which was nevertheless the originator of his top norm, supposed to rule the whole system. That Volksgeist was also called Volksberzeugung (popular conviction), which was, as he said, in more modern societies expressed by the legal profession.384 Thus the basic organic and customary (i.e. historic) view of the law lived side by side with a positivist and systematic understanding of it as the legal profession and parliament were thought to build the customary elements into the positive legal order. Theories dealing with the
381 382

Wieacker, op. cit. 303, 305, 308 Wieacker, op. cit. 353 383 Kelly, op.cit., p. 312 384 Wieacker, op. cit. p.399 ff.; see also: Schrder, Jan, in: Handwrterbuch zur Deutschen Rechtsgeschichte, ed. Erler/Kaufmann, Bd. IV, Berlin 1990, columns 95ff.

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Volksgeist are sometimes also given the name anthropological approach.385 When the French legal philosopher L. Duguit e.g. speaks nearly a century later (1901) in a similar context of solidarit sociale he joins the same.386 56) Antonio Rosmini (1797-1855), a philosopher and cleric involved in the struggles that lead to Italian independence, was a nonconformist. Against the tide of his century he restated the reality of a natural law and reminded Platos statement that the idea of the good is the highest directive and innate in man, 387 what reminds also Shaftesbury, Locke and Rousseau. He criticized Kant but used a similar, highly ordered and formal style of treating the matter. His use of the term will, much cited in 19th century legal theory, appears original and important. He used it not as to explain mans main general drive behind his actions, as it had been done before (see above), but as a necessary psychological precondition of the law. It is not sufficient to know what the right action is one has also to have the will to execute it.388 That view takes account of other not less fundamental human qualities such as inertia, hypocrisy and wickedness, the latter often an attempt to veil the former. Its significance may become clearer in the light of a similar statement by a famous American banker form the beginning of the 20th century, J.P. Morgan. He had said that it is less important whether a debtor had the ability to pay back a credit than if he were willing to pay it back. According to Rosmini the above list of psychological inputs into law would thus not be just threefold but four-, if not fivefold: 1. Facts, 2. Understanding, 3. Evaluation, 4. Will, 5. Norm. 57) While the younger approaches, mentioned above could all be called sociological to some extent, a new purely sociological approach, was introduced by Auguste Comte (1798-1857, a sometimes secretary of the famous Comte de St. Simon, (who influenced on the social ideas of Marx and of many others), who coined in fact the word sociology. As briefly mentioned above it appeared to this brilliant young scientist, that the rigorous method of natural science could also be applied to all areas of social interaction including that of law. He wanted to look exclusively at factual situations devoid of any speculative input. He wanted to secure absolute impartiality. One might ask: Why did he think to be more impartial or more able for that, than e.g. an experienced lawyer? That was the real birth of social positivism, which influences upon certain scientific
385 386

KBW Duguit Lon, LEtat, le droit objective at la loi positive, p.80ff. 387 Rosmini, Antonio, Principles of Ethics, ed. Watson/Cleary, Durham 1988, p.3ff., 6ff. ; Plato, Politeia, book VI, 16 (505a); Kelly, op. cit. 333,4 388 Rosmini, Antonio, Principles of Ethics, ed. Watson/Cleary, Durham 1988 (a translation of Principi della Scienza Morale, 1867), p. 64ff., 92, point 193

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undertakings up to today. It does not care that legal scholars tend to make a strict distinction between the social and the above legal positivism.389 His own theory however included a view of the development of human societies, a first theological stage explaining the world with gods and demons, a second metaphysical stage asking for the nature and essence of things and a third positivist epoch looking for the purely empirical facts. Lawyers belong to the second stage, on the third it is, according to him, the sociologist who speaks out of the experience with human life and makes the rules for them. He never thought of the fact that a reversal of the order could be the case or some intermixing of such aspects but freely speculated on, that the analysis of clearly ascertainable facts would lead on to insights into complex matter and allow predictions or at least to behave accordingly. He saw such a sociological approach on the same level as Astronomy, Physics, Chemistry or Biology. 390 Seeing law as a natural science, an already rather old theory as we have seen above (see: Hobbes and Spinoza), he thus came up with such a (indeed rather nave) new, systematic approach. As his work breathes optimism and declares moderation it was and is well liked. That does not change at its shortcomings. 58) Karl Marx produced a similar hypothetical but more complex building of several, in some cases not uninteresting theories, among which he dealt also with law. Among others it is for him the instrument (a superstructure berbau) by which the dominant class exploits the laboring masses, i.e. a direct consequence of the given economic structure of society to which social consciousness corresponds. It develops out of the disintegration of the natural community. The Communist Manifesto (1848) announced to the proletarian law, morality, religion, are so many bourgeois prejudices, behind which lurk in ambush as many bourgeois interests.391 He considered the idea that law is based on will, and
389

see e.g. Wieacker, op. cit. p. 430-432, also footnote 7, who refers for this positivism to Kant, as his followers had pointed to Kants distinction between moral autonomy of the individual and the positive legal order as a system for to guarantee as much freedom as possible, p. 352. The distinction is one thing the relationship between the two is something more. It cannot be upheld in the light of notably The Metaphysics of Morals, op. cit. p.65/66, what is law and p. 67, general legal principle. Kants distinction may however lead to an error. He said that the categorical imperative serves as leading ethical principle and as basic lawmaking principle but added that it lead in the second case to an objective precept, a positive law and only in the first one to a moral duty. This is the distinction between an objective condition applying objectively to several subjects and an objective condition applying subjectively to a subject. But it is false to think that the law does not require also an understanding, even a law abiding mentality, as the laws purpose, to grant as much freedom as possible, is at the same time the reason for the personal imperative as for the general principle of law. 390 Comte, Auguste, Cours de Philosophie Positive, 1830 seq, Lect. 1, 28, 48; Discours sur lEsprit positive, 1844, nr.12,15,18,22,73,19,77 391 Kelly, op. cit. p. 309 seq., 328-330

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indeed on will divorced from its real basis on free will an illusion.392 It is clear that such statements reflect the reality of dominant concepts around in this time. One has to conclude that he thought law to become superfluous once his ideal social state was achieved (but see above). This view got the title historic materialism. 59) The purpose is the creator of the law, said Rudolf von Jhering (1818-92), but also that a right has to do with the protection of interests, interest in the sense of the expression of social needs or desires.393 By that he helped to bring down the views attributed to the so-called Begriffsjurisprudenz and also to some extent of legal positivism. Instead came legal naturalism propagating the idea of the free access of social groups and pressure groups to legislation and the free law movement propagating a non-dogmatic judge, e.g. with regard to the interpretation of the law.394 Once more new wine in old hoses, one might say. 60) The beginning of the 20th century saw also the publication of Fundamental Principles of the Sociology of law by Eugen Ehrlich (1862-1922), obviously convinced of A. Comtes theory, stating once again that the center of gravity of legal development is to be found in society, Franois Gny (1861-1938) and many others making contributions to the same approach.395 61) If we look back at the theories that influenced the concept of Law and Justice, it seems to be advisable to cite a disturbing influence that might explain some ripples in the coming theorizing about the Law. We think of Friedrich Nietzsche (18441900), an eminent classical philologist and philosopher, who had certainly with reason severely criticized the intellectual carelessness and ensuing hypocrisy of the Western Culture. In his growingly desperate exploration of remedies he stated in one of his later works, Wille zur Macht (Will to Power, 1888), a total reevaluation of all values, an obvious impossibility as long as man is man. Yet his thinking became very influential. It might have been - a pure guess of ours - that these words stroke a chord in too many. If one does not conceive of history as totally accidental, one may e.g. have a look at the goings on during the past 20th century with violations of justice, wars and mass murders at a level unknown in history before that.

392 393

Cited from Freeman, op. cit. p. 878 (from Marx/Engels, The German Ideology, 1845-46) Wieacker, op. cit. p. 450 seq., Jhering, Geist d. Rm. Rechts IV 59,60; Der Zweck im Recht para, 12 394 Kelly, op. cit. p. 360; Wieacker, op. cit. 562/63 seq., 579 seq. 395 Kelly, op. cit., p. 362,63; Wieacker, op. cit., p.578

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Nietzsche had dealt with Justice in earlier works, not so much in his On the Genealogy of Morals (Zur Genealogie der Moral), but therein he referred back to Menschliches Allzumenschliches, where he confirmed to have dealt with Kants Categorical Imperative and spoke about the origin of Justice as a balance (Ausgleich) between relatively equally strong ones. 396 After a reference to a community similar to the one mentioned in the contractual scheme of Plato, he provided a flat definition of Justice. Justice refers to equilibrium and Equilibrium is the basis of Justice (Gleichgewicht ist die Basis der Gerechtigkeit) thus referring again to a platonic concept (see above). He also finds the origin of Justice in reasonable self-preservation (einsichtige Selbsterhaltung) but immediately switching from there to Egoism, i.e. its abuse.397 62) Another kind of sociological views came out of America and Scandinavia. Refusing to consider all the above, one looked only at what one thought to be the results of legal proceedings. Oliver Wendell Holmes (1841-1935) a justice of the US Supreme Court famously said, that he means by law the prophecies of what the courts will do in fact.398 In another way, one could say: Law is not what is put into the pipeline nor what is in the pipeline but that what comes out at the other end. That is certainly worth a thought. But it reminds the example of the one who has to say what a watch is: A quarter past four is what I mean by a watch, not gearwheels etc., axels, springs and hands, or then, a guess about the indicated time. Holmes reminds us though that there are several aspects of the law: its making, i.e. legislation, the influences on that, politics, laws general or systematic existence, its application, its results and its effects. Karl Llewellyn (1893-1962) another American Realist as this school is called, spoke of a law job399 meaning by that the administration of justice. The Scandinavian Realists went even further. Axel Hgerstrm (1868-1939) but also Karl Olivecrona (18971980) and others spoke of the effect law has on peoples minds, their mental states, a legal obligation e.g. described as conviction on the part of the one obliged. Olivecrona called law also classically imperatives,400 what has always been considered a possible qualification of the law as it refers to an ought. The closeness to the dismissed term command is to be seen in that context. Could it

396

Nietzsche, Zur Genealogie der Moral eine Streitschrift in vol. IV, Friedrich Nietzsche, Das Hauptwerk, Nymphenburger, Mnchen, 1990, nr. 3, 5, p. 5, 7 397 Nietsche, Menschliches, Allzumenschliches ein Buch fr freie Geister, zweiter Band, Der Wanderer und sein Schatten, in; Friedrich Nietzsche, Das Hauptwerk, Nymphenburger, Mnchen, 1990, nr. 22, p. 540, 541, 542 398 cited from Freeman, M.D.A., Lloyds, Introduction into Jurisprudence, 6ed. London 1994, p. 670 399 Kelly, op. cit. p. 368 400 Kelly, op. cit. p.369-71

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be that we consider imperative as a more general term than command, which may appear indeed as very specific? 63) By dealing with Kant above we cited three elements regarding a legal rule, 1) general facts 2) a general value judgment 3) a general norm (Rosmini adding to that understanding, evaluation and will). If we put the above into the same order there would be many more stages: e.g. 4) special facts 5) a special value judgment 6) a special norm/decision, 7) effects on the one concerned 8) effects on the general public etc. Not only that range but also the fact that we have to be aware that there are several different levels of facts leads legal analysis beyond the merely obvious, i.e. that which is so often misleading, but to the deeper aspects of the law having shown up in practical cases (see also above). 64) Rudolf Stammler presented 1926 Die Lehre vom richtigen Recht (Theory of the right or correct law). Having the social ideal in mind he rethought Kants approach. Underlining again every individuals autonomy he came up with the expression autonomous, binding, harmless willing (selbstherrliches, verbindendes, unverletzliches Wollen) as a description or development of the categorical imperative. On the other hand he called a state, which acted contrary to justice a delinquent state.401 Right law is such positive law, that corresponds to a given historical situation and to justice.402 65) Ernst Cassirer a widely learned Neu-Kantianer open both to art and to rational thinking considered the moral order (Sitte) of man a wonder. In the development of philosophy he sees the start and growth of a universal mental independence, which becomes aware and is itself proof of an integrated whole of being, the principle of order, physical and moral, being part of that. By that he considers man to have gained a common universal world of thoughts.403 66) Scheler and Hartmann considered justice as an innate value and invited to the comparison with other values (Wertethik)404.

401 402

Wieacker, op. cit., p.589.91; Kelly, op.cit., p. 378 Richtiges Recht ist solches positives Recht, das in einer geschichtlichen Lage jener Bestimmung gengt. See: Wieacker, op. cit. p. 590, Radbruch, Gustav, Einfhrung in die Rechtswissenschaft (Intorduction into Jurisprudence), ed. Zweigert, 13. ed., Stuttgart 1980, p.50 403 Cassirer Ernst, Zur Logik der Kulturwissenschaften, 6th ed., Darmstadt, 1994, p. 1 seq. 404 Wieacker, op. cit. p. 591 seq.; Frings on Scheler and Neumann on Hartmann in: Philosophie der Gegenwart, UTB, Gttingen, vol. II, 1981, p. 15 seq., vol VI, 1984, p. 148 et seq; Baran P., on

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67) Bertrand Russell (1872-1970) wrote together with A.N Whitehead a famous logic of mathematics Principia Mathematica (see above). This enabled him particularly to deal with ontology and episthemology. In his little but utterly dense book The Problems of Philosophy (1912) there is a passage, which deals just in that context with justice. He takes it as the example for that which he understands by universal. There he says: If we ask ourselves what justice is, it is natural to proceed by considering this, that, and the other just act, with a view to discovering what they have in common. They must all, in some sense, partake of a common nature, which will be found in whatever is just and in nothing else. This common nature, in virtue of which they are all just, will be justice itself, the pure essence the admixture of which with facts of ordinary life produces the multiplicity of just acts. This pure essence is what Plato calls eidos (ideas or form). The idea justice is not identical with anything that is just: it is just something other than particular things, which particular things partake of. Not being particular it cannot itself exist in the world of sense. Moreover it is not fleeting or changeable like the things of sense: it is eternally itself, immutable and indestructible.405 He goes on to say that universals deal with relations and that they are neither material nor mental, but something else. From this we have to conclude that the word justice refers to relations. 68) Hans Kelsen (1881-1973), belonging to the renowned Viennese school (Wiener Kreis of Schlick, Carnap, Neurath etc.) of the beginning of the 20th century, that championed a logical or analytical positivism throughout science in the sense of Auguste Comte, published 1934 his Reine Rechtslehre (Pure theory of law). It is as if he had wanted his theory to be neutral or value free (wertfrei), what is impossible in the matter of law, as we have seen that law is that discipline which is about values. That this is obvious can be ascertained by the consultation of any legal statute and by any judicial decision. He seems to have been teaching in Berkeley while Carnap, the logician, did the same in Los Angeles. Yet the method that worked in Logic did not in Law. No practically experienced lawyer can join a dream that procedures (operated by whom?) could automatically produce justice. Yet his theory is purely about the procedural aspect of a legal order alone. It is positive, systematic and formal and depends on a basic norm (Grundnorm). The content of this norm remains undefined. It is only the procedural aspect of its coming about which is defined. So everything goes back to the historically first constitutional legislator. Whatever happens afterwards is legitimate as long as it is procedurally legitimate. For somebody who started out
Werte in: Sandkhler, Europische Enzyklopdie zu Philosophie und Wissenschaften, vol. 4, Meiner Hamburg 1990, p. 805 seq., 807 405 Russell, The Problems of Philosophy, op. cit. p.52/53

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from Kant this is a rather surprising result. It has been briefly referred here as it is so often mentioned. It has nothing to do with our subject as that is precisely about values.406 It has probably more to do with fields like operations reseach etc. than with law. It may be in fact a piece about deontological logic (i.e. deontics, see above). The procedures are in law a means to an end. That end has been Justice eversince. Whether that has been attained is another story. Kelsens theory is however intended to be descriptive. He does not say that the legal order has to be like this. All he says is that he considers it to have worked like this ever since. 407 Such an approach of logical positivism is sometimes also called analytical positivism, or hard positivism all of the type of Comte, as compared to the above legal positivism or soft positivism.408 The totality of a posited (laid down), set of legal norms, e.g. in particular written ones, is rightly called positive. To think that such a system would not contain value judgments is not necessary. The idea that it could take on any value refers to an extreme case. Therefore positive in regard to law need not to mean neutral or value free (wertfrei), as is sometimes said. It just means laid down (see above). 69) To show Comtes error one can start form the assumption that also he, not very versed in the matter as such, saw that law deals with living people and their existences and relationships. It is true that it seems possible to try to consider or analyze such goings on in a purely logical manner. If however one does decide, one intervenes directly into living existences and relationships (one cuts into the facts). By that it shows that such a decision affecting living beings cannot be neutral or value free (wertfrei). Younger knowledge, and that from natural science (physics), shows, that even mere observations interfere with that which is observed. To think that such a value judgment deals with facts only when it is enforced is inadequate as it comes about already once the corresponding norm is laid down as such, that is, a norm of the legal kind. One might compare that to something like a relationship between a premiss and a conclusion if the existence of the norm alone would not already cause effects as e.g. Hgerstrm and Olivecrona, seemingly positivists to their bone, happened to show themselves in younger times (see above).

406 407

Kelsen, Hans, Reine Rechtslehre, 2.A. Wien 1960, p. 60,61, 200,201, 202-206, 357, 360, 402, Kelsen, op. cit., 209. It changes nothing at what was said here that Kelsen seems to have been in fact one of the creators of the Austrian Constitution of 1920 nor that he was a well known promoter of constitutional courts. 408 see e.g. Kelly op. cit., p. 384 and Riddall J.G., London 1999, p.48 and 26ff.

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70) Coming from a different school of thought J.Dabin from France nevertheless also stressed the fact by now much acknowledged that the existence of a society is a precondition to the emergence of general rules of legal quality. He distinguishes the extent of the consensual structures (agreements) from habits, where they may be locally limited, to laws from where they are universal.409 71) Thinking about law had become so complex in the first half of the 20th century that someone referred to the many voices and too rare simplicity. 410411 This was Gustav Radbruch (1878-1949), whos views are not only interesting as he himself represented that difficult time but because of his deep knowledge of the law and the dense empirical content of his statements, i.e. real experience underlying them. He was not only an outstanding scholar and professor of law but a soldier during the first World War, a member of parliament and two time minister of justice afterwards and finally, as an opponent to the fascist Government and losing his professional position thereby, somebody who lived through the turmoil of the second World War and saw the Nuremberg Trials of war criminals 1945/46. a) He broke already before the Second World War entirely with the foregoing sociological and formalist approaches and proved the equation of the idea of law with justice. Law can be unjust (summum ius summa iniuria, the highest law can be the highest injustice), but it is law only then, when it has the purpose to be just. Starting from Kant he declared his approach to the philosophy of law as relativist and rationalist. He held that law deals not with that which is, i.e. reality, but with that, which ought to be, i.e. the future (Humes and Kants famous distinction), and calls laws normative statements. Such statements cannot be verified logically, i.e. either as true or false but they can only be backed by more general norms. In this sense he compares the highest normative statements to axioms although he holds that different basic views should be able to coexist peacefully as nobody has a claim to absolute truth. He calls that Relativism, the distinction of the two approaches however Rationalism (i.e. looking at reality as one thing and looking at norms as the other thing, also called: Dualism of Methods Methodendualismus). 412 Equality, functionality
409 410

Dabin J. on Droit in: Encyclopaedia Universalis, Paris 1968, vol. V, 797 Radbruch, according to Wieacker, influenced by the South-West German variety of Neukantianismus and in his later writings turning to what is called material Wertethik (see Scheler and Hartmann above) but also Riekert, Windelband, Lask, see: Wieacker, Privatrechtsgeschichte, op. cit. 587, 591 411 Radbruch, op. cit, p. 33 412 Radbruch, op. cit., p. 13, 15, 17, 33

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(Zweckmssigkeit) and legal certainty are the elements, which define his own original concept of law and justice (law as justice). It answers many open questions: b) Law is a term, which has in a qualified way to do with values. The main value in question is justice. Its core aspect is equality. It is specified in the statement that equal cases have to be treated equally and unequal ones unequally. But that is not sufficient in the actual practice of the law (in the real world). Therefore Radbruch sums up all the specifying evaluations under the aspect of functionality (i.e. purposefulness), i.e. the functionality of the applicable law, which is the result of the many influences on legislation. But that cannot be the last word either. As laws purpose is the organization of the coexistence of members of a community, law has to provide one roof for all. That is provided by the criterion of legal certainty. That criterion requires a positive (i.e. an expressly laid down) law and that by somebody, who is also capable to enforce it. This criterion of legal certainty has to be understood as referring to the result related aspects of law and justice by which they contribute to certainty not just to the consistent decision making of the courts alone. Radbruch explains that the positivism of the law becomes such a precondition of the correctness (Richtigkeit) of the law. He says: It belongs to the concept of law to be positive, as it is the requirement of the positive law to be just. While he admits some flexibility in the term functionality, the principles of justice and legal certainty however are above the struggle of political parties involved in the legislative process. But reality shows that it is even more important that the quarrels about what is just and functional are to be brought to an end, than that absolute justice is realized. Therefore it is legal certainty which has to have the upper hand in the end. By that the first and main purpose of the law comes to the fore, which is order and peace in the community. Yet there is an antinomy between the aspect of justice and the one of functionality. That can be seen, by comparing on one hand the views of an administration and the views of an administrative tribunal controlling it, both dealing with the same cases. The former cares more for overall justice, the latter for the slightest inequality, i.e. its evaluation in the light of functionality. That applies even more to the antinomy between legal certainty on one hand and justice and functionality on the other. The important consideration is that these tensions are unavoidable. Therefore sharp limitations can become elusive where life knows only fluid transitions. Even legal certainty and its realization, the positivism of laws, can enter into an antinomy. That can be the case when a legal tradition has become so ingrained in the minds of the people that it supersedes something written in a statute. Such developments can cause even unjust rules to become positive law. Then it is again the aspect of justice, which has to come to the fore (e.g. through the courts or in a

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parliament).413 Thus he underlined the fact that each law needs a foundation in the minds of the people concerned, a support, a conviction, which have to do with the realm of morals and ethics. He added the point that only morals and ethics are able to create the binding force of the law. Legal clauses, he said, may create an obligation but never an ought414 and only morals can create the binding force of law.415 That requires moral views and feelings in the consciousness of each individual. He even spoke in this context of a double layer of values.416 After the Second World War he put the rational but in particular the relative approach into perspective and held first principles to be a universal necessity and truth. Radbruch moreover produced a convincing theory about the origin of laws. c) It is certainly of interest to see that he, an exceptionally experienced lawyer and practitioner like Cicero and Grotius before him, having gone through war and having personally experienced injustice like them, came to conclusions similar to them. Like Kant he could only dismiss ignorant posturing about reality proving legal conceptions false. These people had never distinguished between is and ought, i.e. between an indicative statement and a normative statement. Precisely in view of these terrible facts he had seen that something called law, which is not just, does not deserve that name and is legally null and void. He thus reduced the importance of the above relativity principle. That approach was then formally developed by postwar reality, i.e. in the jurisprudence not only of the Nuremberg Trials but also by German courts and in other places as well.417 72) Another approach to justice appeared under the title De la Justice (1945) by Chaim Perelman of Belgium. He stressed the difference of views of different people who look at the problem of distributive justice. The one wants distribution to each according to his works, the other to each according to his needs, the third to each according to his merit, rank, entitlement or to each the same thing. He calls that concrete justice and each approach a category. Within such a category each one should be treated in the same way, what Perelman calls formal justice.418 While modern legal orders rate merit highly there can be found nearly all these aspects in one or the other area of law. Yet distributive justice is
413 414

Radbruch, op. cit. p. 73 seq. Aus Rechtsstzen kann vielleicht ein Mssen, niemals aber ein Sollen abgeleitet werden. op. cit., p. 47 415 Nur die Moral vermag die vermittelnde Kraft des Rechts zu begrnden. op. cit., p. 47 416 Radbruch, op. cit., para. 5.1, p. 47 417 see: Radbruch, Entwurf eines Nachworts zur Rechtsphilosophie (Draft to a postface to the Rechtsophilosohpie (1947), op. cit., p. 194 seq., and Fnf Minuten Rechtsphilosophie (Five minutes of philosophy of law), op. cit., p. 209 seq. 418 Riddall, op. cit. p. 198 seq.

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not the only important aspect under a concept of justice.419 One may question however whether the danger of misunderstanding the above as a description of a simple class-system have been seen. 73) Albert Camus, the famous French writer and philosopher (1913-1960) said in an article against the death penalty that there has been a development in the human conception of Justice away from archaic vengeance and retaliation (Talion, an eye for an eye) to a more thoughtful concept. He associates the archaic view with nature and says:Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature. One can equate Law and Justice in that context. He goes on saying: We have all known that impulse, often to our shame, and we know its power, for it comes down to us from the primitive forests.420 He thus put a question-mark behind the link between Justice and Nature. That shall be dealt with below. 74) H.L.A. Hart (1907-1993), the late Oxford professor and former attorney, nevertheless choose to disagree with the above. He knew Radbruch and his views and had a famous debate with professor Fuller (see below) about them. He could not follow Radbruch but acknowledged the validity of even the most evil Nazi-laws. He held that a positive law is a law and the one who decided to disobey had to do that in the face of it and if necessary suffer the consequences. What he seems not to have thought through is the defense of such an opponent of the kind of Antigone above. Could he allege something else than that this law is genuinely inadequate, harmful to life and existence, unjust and therefore unenforceable, i.e. null and void? That he has to bear the burdens of reality remains true but remains distinct from that. Moreover the sole question in the case of the Nazi crimes is: Were the Nazis right or wrong? The answer is clear: They were wrong and unjust and their legislative, governmental and judicial actions were illegal. Obviously what is wrong cannot be considered right, i.e. legal. If someone would hold that they appeared as formally legal, the response is: They may have been formally correct but they were substantively illegal. It is not to be forgotten either that the Nazis were fundamentally against the rule of law and human rights. In the course of this debate Hart published his The concept of law (1961) wherein he criticized Austins concept of law and in particular the command and the sovereignty aspect and spoke instead of law as social rules. Although he overcame Austins theory the same cannot be said about Austins positivism linked with the idea of neutrality (Wertfreiheit), holding not only the theory being neutral, but also the laws themselves being of that
419 420

Riddall, op. cit., p. 266 seq. ; Kelly op. cit., p. 416 seq..; Freeman, op. cit., 367 seq..check See: Solomon/Murphy, op. cit., p. 285/286

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kind,421 which was to be dismissed already above. But the above can probably be considered to be a rather common comment on Harts views on the theory of law, as he is known for a methodically specific approach in this regard. He did not seem to believe that definitions could solve the difficulties to which the words embodying legal concepts (such as right and corporation) gave rise422. He seems to have preferred to ask for the conditions to which true statements are made in legal contexts about rights and corporations.423 This appears as an exercise in applied logic, which leads not to direct statements about the law but to statements about the coming about of such statements, i.e. of statements about statements about matters of law. We do not have the space here to look deeper into that kind of approach.424 75) Leon Fuller (1902-78), an American professor, familiar with Hart and Radbruch, and mentioned above, saw that laws are not just enforceable rules, but rules that have an additional quality. In The morality of law (1969) he calls that an inner morality. Thus he disagreed with Hart in the Nazi-case and did not acknowledge the quality of law to the Nazi decrees and enactments. He gave the example that a structure designed so as to stay stationary cannot be called a vehicle. 425 He established a list of seven points, which seem to him to be constitutive of that quality, among which there are consistency and non-retroactivity besides more formal aspects. He devised therein also a parable about a rex who was replaced by leading citizens.426 It might be of interest in such a context to note that there is an opinion that rex (Latin for king) has the same linguistic root as right. 427 If asked what is the one central indisputable principle he said he would find it in the injunction: Open up, maintain, and preserve the integrity of the channels of communication by which men convey one another what they perceive, feel and desire.428 It seems that Fuller did not think here of the fact that a decree or enactment has to be publicly made known but more of the fact that people have to talk to each other in general but also before they make laws. He points thereby to the importance of the legislative process.

Ridall, op. cit. p. 84f., 30ff., 39ff., 48 Freeman (Lloyds), op. cit. p. 344 423 Freeman (Lloyds) op. cit. p. 344 424 Yet these views are rather puzzling and the question arises about the situation of Law and Justice in the State of England 425 It comes to mind in this context that for something that runs left the word right is not the proper name, despite e.g. the fact that the one who runs to the left side is dressed in a coat on which one can read right, right, right. 426 see: Kelly, op. cit. p.415f., 421,422; Riddall, op. cit. p.79ff. 427 Jehring R., Der Zweck im Recht, translated by I. Husik as Law as a means to an end, The Boston Book Company, 1913, para. 12, p. 327) 428 Kelly, op.cit. p. 422
422

421

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76) Ronald Dworkin, an American, succeeded Hart on his Oxford chair. He continued Fullers attempts to prove Harts positive legal thinking wrong. His central line of attack is based on the reality of general principles of law (such as e.g. equity or no man should take advantage of his own wrong, i.e. the legal system would protect the former but not the latter). They are part of the process of adjudication, in the course of constructive interpretation by the judge, yet they do not form part of the set of positive laws. It is to be added that they seem to do that to a considerable extent in the legal orders of many countries (see below). These principles have according to him moreover a pedigree, that is, they respond to basic considerations, superior to the positive norms laid down explicitly. There is the question of the completeness or incompleteness of a legal order. According to Dworkin it is to be seen as an integrated whole (see more to both below). He stands in the classic legal tradition by presenting the law as including the idea of integrity (law as integrity), a term which covers honesty, reliability, truth. Besides of that a warning seems necessary concerning Dworkins view of a lively adjudication process, which seems to include e.g. also rather ad hoc considerations of new political trends, which would, if not covered by a legitimate legislative process, go entirely against the idea of the rule of law.429 77) Another source of thinking about Justice and one of dense empirical content came after the severe legal troubles of the Second World War from the German specialist on the history of law, Franz Wieacker. At the end of his famous Privatrechtsgeschichte der Neuzeit (History of Modern Private Law, 1967), covering roughly the past thousand years, he wrote a chapter entitled Auf der Suche nach der Gerechtigkeit (i.e. Searching for Justice). He found therein that the approaches by Natural Law, Legal Formalism and Positivism had dramatically failed when it mattered and sided more with Radbruchs approach to Justice, which he called materiale Wert-Ethik and stressed an open approach which makes use of the large store of historically proven legal solutions, 430 among which he sees a list of prominent basic individual rights (Menschenrechte) and of well known general legal principles431 (see examples below). He considers three important elements in that context: a) the existence of a personal legal conscience (persnliches Rechtsgewissen), in which he sees as an immanent reality of Justice and he considers it to be typically human432, which reminds Democritos and Kant (see above), b) the unbiased consideration
429

See: the report and comment on the Hart v Dworkin debate in Riddall, op. cit. p.111ff., on Dworkin, p. 87ff. See also Kelly, op. cit. 407 ff., also referring to Essers prior work on that 430 Wieacker Franz, Privatrechtsgeschichte der Neuzeit, 2nd ed., Vandenhoek&Ruprecht, Gttingen 1967, p. 619 431 Wieacker, op. cit. p. 616, 620 432 Wieacker Franz, Privatrechtsgeschichte der Neuzeit, op. cit., p. 610

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of reality and c) a secure methodology.433 The modern crisis of thinking about Justice has for him its causes in the relatively slower speed of adjustments of legal considerations, i.e. of that personal conscience, compared to the particularly fast and violent developments of younger modernity in science, technology and social life. Yet he expects that to gradually adjust as in the past and suggests tending to grant priority to practical moral requirements before technical-rational ones. 434 The reality and firmness of the principle of Justice compared to it need to adjust according to the practical case. He compares that to a mathematical formula on one hand and its application, the special calculation according to each practical case, on the other. He thus uses the term moral miscalculations (moralische Rechenfehler). 435 Yet he sees no fix proofs of Justice but rather a consideration of rational probabilities (vernnftige Wahrscheinlichkeiten) of proven principles and solutions having the potential to be of higher value (berpositive Verbindlichkeit). 436 It is then revealing that given a practical question he turns immediately to the neminem laedere (i.e. not harming anybody), the proven principle of Roman Law, like many a serious lawyer before him (e.g. Leibniz).437 Wieacker provides also a poetic statement on the relationship between Justice and concrete, historic rights: And yet there would be no colorful splendour of historical rights without the light of Justice, refracted by reality in different ways, (Und doch wre der Farbenglanz der geschichtlichen Rechte gleichsam nicht ohne das Licht der Gerechtigkeit, das sich auf verschiedene Weise in den Wirklichkeiten bricht.) making clear once more the relationship between rights, laws and justice.438 78) American political philosopher and legal sociologist, John Rawls (deceased in 2002), brought out a book by the title of A Theory of Justice (1971) and twenty years later a collection of essays under the title Political Liberalism (1993), directly referring to the former. The first is in fact less a theory of justice but more of a political theory. It seems therefore not to deal throughout with the sociology of law but to a greater extent with politics. His highly speculative texts are sometimes mixed with a fine irony and may have much to do with the state of his society, i.e. again with sociology but in a qualified utopian way, as many thinking experiments he is suggesting refer to more than one level of ifs. In his considerations he starts from the Aristotelian equation justice is fairness (see above, but also Montesquieu). He applies the dividing and choosing procedure (see below) as basic way to achieve justice and asks what constitution and
433 434

Wieacker, op. cit. p. 625 Wieacker, op. cit. p. 619 435 Wieacker, op. cit. p. 613, 618 436 Wieacker, op. cit. p. 610 437 Wieacker, op. cit. p. 612 438 Wieacker, op. cit. p. 613

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moreover rather daringly, also which factual outcome, people would devise if they were not certain in what position they might end up themselves, such treating the question of justice along the material distributive aspect. This author saw that laws do not necessarily produce a reality of sufficient equality. Therefore he stated that a system of government, i.e. its laws, should guarantee freedom for all and equality and accept material inequality only if it proves useful for the others. As already Solon knew, a law alone achieves not much. That depends to a considerable extent on the quality of the ones who apply it. Yet Rawls made clear that those who are supposed to be subjects of the law should not be deciding about it, i.e. he found it not a good idea that laws are made in the sense of to set the fox to keep the geese. And there appears the concept of justice properly as such a set up is found to be unlikely to be just or to produce justice. The purpose of this book seems to be the defense of the principle of social-justice. Dworkin considered Rawls theory from the first book as based on the natural right to equality of concern and respect. Kelly calls it utopian egalitarianism. 439 Referring to a remark by Rawls himself, Hffe called it Kantian. 440 Still it is interesting to note that the legal-philosophical generation after Wold War II started to ask for Justice in erveryday life and thus for the practical results produced by the legal (political) systems in place. 79) Another American author, Robert Nozick, seems to have opposed to Rawls a minimal state in: Anarchy, State and Utopia (1974), starting like Locke from the consideration of a state of nature and unlimited freedom of man. It appears in the modern context of field research etc., however that all these thoughts tend to be highly hypothetical. It further deals with the purposes of a state and a legal order. He considers life, health, liberty and possessions as natural rights and justice in holdings, acquisition, transfer and rectification with regard to the latter. It seems not to go beyond the Aristotelian aspect of distributive justice yet referring strongly to possessions while the former dealt first with the distribution of justice, which is different. 80) Niklaus Luhmann, a German sociologist of law referred to Harts new approach and spoke of a legal system as a social system within a social system. He considers it a closed or self-referential (termed autopoietic) 441 system, a statement, which does obviously in no way correspond to its social reality, as material and mental facts from all areas of the social spectrum obviously all the
439 440

Riddall, op. cit., p. 205 ff.; Kelly, op. cit., p. 418; see also: Freeman, op. cit. 356 ff. Hffe in: Dworkin, un Dbat, ed. Wesche St./Zanetti V., Ousia, Bruxelles 1999, Vorwort. p. 6 441 Luhmann Niklas, Soziale Systeme, Suhrkamp, Frankfurt, 1987, e.g. 501 et seq., 509 et seq. Compare in that context: Freeman (Lloyds, op. cit. Section 7. Scociological Jurisprudence and the Sociology of Law, p. 509-654

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time influence, change, confirm, originate, abolish laws, legal institutions and their functioning. The principle that legal decisions are supposed to be based on legal rules (the rule of law) does therefore not at all suffice for Luhmanns rather general statement or a little more precise, it seems not to make sense for the professional of law. He held that rules used in the past to be legitimized by natural law, but in the present they were legitimized by a (due) procedure alone, a famous statement in the younger history of law (reminding to some extent also Kelsen). He was strongly criticized (e.g. by Larenz442 but also by Habermas) for that, as it was one question to ask if something were fair and equal and another to ask only if something were merely accepted, e.g. suffered. As with regard to all other authors, also here it is left to the reader to have a closer look at these writings. 81) Zippelius, a German specialist in constitutional law and a philosopher of law, gives in his Rechtsphilosophie an overview of the existing approaches to justice, pays tribute to Kant and Popper and highlights under the title sense of right and wrong (Rechtsgefhl), itself under the main title justice (Gerechtigkeit), the following aspects: autonomy in the personal conscience, rationality in the personal conscience, appreciation of the nature of things in the personal conscience, the universal public consensus and the public majority verdict.443 It is in the very beginning of his Rechtsphilosophie that he mentioned the aspect which will show here as the key aspect of the principle of Justice, namely that Law is that order of human activity which regulates co-existence (Ordnung menschlichen Handelns, die das Zusammenleben regelt).444 82) Hffe, a German philosopher, dealing with law, published in a brief newspaper article a concept of justice, which reflected many of his earlier works on that subject and which seems to correspond in many respects to several recent trends in Anglo-Saxon legal theory. His conception is based on the obligations, which people owe to each other. That is meant in the most general sense, therefore not referring to obligation in the specific sense as in modern legal systems, i.e. such as in contract law. Under these he counts impartiality of the rules and distinguishes it from the impartiality in the application of the rules. The latter covers according to him aspects like e.g. the golden rule and commutative justice, the former however as the institutional guarantee of a distributive advantage of each one, i.e. that advantages and disadvantages are equally distributed. He rejects thus the utilitarian yardstick of collective welfare.
442

Larenz Karl, Methodenlehre der Rechtswissenschaft, Spinger, Berlin, 6th ed., 1991, p. 200,201 443 Zippelius, Reinhold, Rechtsphilosophie, op. cit. p. 124-127 444 Zippelius, Rechtsphilosophie, op. cit., p. 3

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Further he distinguishes four aspects of political justice, the rule of law, statehood including the separation of powers, democracy and human rights. But he stresses that such institutional justice depends on the small, personal justice, which is for him the life according to the rule of law, but also on the greater, personal justice which means acting in the interest of the common good. To that he joins the aspect of the civic spirit (Brgersinn), taken from Aristotle, who spoke of it as friendship, as an essential element for public peace and order.445 Summed up that means life in accepted institutions that guarantee the rule of law and human rights, the golden rule and see to it that advantages and disadvantages are not unequally distributed among citizens, i.e. life according to the law, the pursuance of the common good and all that in civic spirit. This article was the fruit of much previous labor on the subject, notably a work about Law and Reason aimed at an intercultural discourse (Diskurs) about law.446 There Hffe, in particular a specialist on Kant, Aristotle and Rawls, came to the conclusion that the realm of the law and that of morals intersect or belong together, discussed historical developments of law as a social institution, starting with religious foundations and arriving at modern personal and institutional autonomy, i.e. positive law making, the latter of which he saw starting already in old Babylon. Much of this text turns around Hobbs notorious subject of power as a constitutive feature of the law, speaking of an authority to compel, to force or to constrain (Zwangs-Befugnis, a term introduced by Kant), which shall be discussed below. An interesting point is made not only by dealing with the question/reason of the legitimacy of legal rules but also by distinguishing that aspect from the reason of defining the legal rule, i.e. the aspect of legitimacy by drafting a constitution and and further levels of that question. The anthropological questions discussed shall be dealt with below. In the end he comes to the conclusion, as his title Vernunft und Recht (i.e. Reason and Justice) says, that reason is at the basis of todays concept of law. 83) J. Habermas, a German philosopher of the so-called Frankfurter-Schule criticized Rawls as Hffe and Nozick and others (e.g. MacIntyre) had done, on the basis of considerable knowledge of political philosophy and constitutional law and held Rawls merit to consist among others in having turned against Utilitarianism (so open to misinterpretation and so often misinterpreted) and against value-scepticism. He warned that neither constitutional schemes nor institutions could serve as perfect guarantees for social-justice, referred to the existing catalogue of fundamental rights for everybody in modern constitutions and underlined the value of the public use of reason (ffentlicher
445

Hffe, Otfried, Of Justice and Friendship, Neue Zrcher Zeitung, Nr. 126, 2./3. Juni 2001, p. 81/82 446 Hffe, Otfried, Vernunft und Recht (i.e. Reason and Justice), Suhrkamp, Frankfurt a/M 1996

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Vernunftgebrauch), i.e. political activity on the basis of the constitution, such restating the active aspect of the principle of Justice also in personal and social affairs.447 84) Derrida, the French Philosopher and so-called Deconstructivist, said that deconstructivism were crazy for Justice and crazy because of Justice. He considers Justice to be infinite and irreductible, and that freedom requires responsibility to arrive at Justice, its realization requiring the rule of law in the sense of the Etat de Droit. And, he refers to Levinas who seems to have said, that Justice presupposes truth and even that Justice is the only thing that has reality or truth.448 Levinas, concerned by the terrible goings on during the Second World-War, said in his essay thique comme philosophie premire (i.e. ethics as first philosophy), that the main question or the question of philosophy (question par excellence ou la question de la philosophie) were not the question Why is there something at all and not rather nothing (Leibniz: Wieso ist berhaupt etwas und nicht vielmehr nichts?) but How is being to be justified? (Non pas: pourquoi ltre plutt que rien (Leibniz), mais comment ltre se justifie.) 449 He thus stresses the ethical question to the detriment of the ontological one. According to him, a text like the present one, were about first philosophy. It is to be added that his concept of ethical responsibility is a rather wide one. 85) There are actually more legal schools or approaches around (critical legal studies, feminist law, the economic analysis of law etc. etc.). 450 Ryan mentioned also works trying to explain law and justice by game theory or the so-called theory of rational choice calling them semi-technical. 451 In the realm of the AngloAmerican tradition there seems to have been a revival of the subject of Justice
447 448

Vershnung durch ffentlichen Vernunftgebrauch, see: Horn/Scarano, op. cit., p. 446 seq. Horn/Scarano, op. cit. p. 417 seq., 425. May it be added here for the sake of comparison that an experienced Lady had said the other day: In the end it is Love which is the only thing that counts. 449 Levinas Emmanuel, Ethique comme philosophie premire, ed. Rolland J., Rivage Poche, Petite Bibliothque, Payot & Rivages, Paris 1996, p. 109 450 See to that e.g. Kymlika W., Justice in Political Philosophy, 2 vols. Edward Elgar, Cambridge University Press, Aldershot, England 1992, giving therein a survey of articles on Justice by contemporary philosophers within the Anglo-American tradition, which seems to have seen a revival after Rawls A theory of Justice in 1971. That survey contains in vol. I articles dealing e.g. with utilitarianism, liberal equality (i.e. the social-contract argument) and libertarianism (i.e. free market capitalism referring to self-ownership, extensive liberty and mutual advantage contractariansim) all considered mainstream, in vol. II with marxism, communitarianism and feminism, all considered to be critique. 451 Ryan, op. cit., Introduction p. 16

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due to Rawls A theory of Justice (1971). It has been seen above that he did not deal with the objective principle of Justice as such but with its realization in modern reality. He reconsidered the mental and institutional framework destined to produce justice. In his case that meant social or political justice with a strong consideration of material equality. And that appeared not just as meaning equality before the law and with regard to the legal status as granted by modern legal constitutions but to a considerable extent equlity in personal well-being, i.e. in the outcome. That has structured the subsequent theorizing about justice in particular in the Anglo-American tradition. Also Dvorkin joined that line of thinking with a contribution in 1999 on The roots of Justice stressing the aspects of social justice and equality but also responsibility and the basic institutional set up destined to lead to that.452 A widely discussed work by M. Walzer, Spheres of Justice, seems also to follow in that line of social critique addressing specific areas of human activity.453 The danger of his theory reflected in the title seems already to have become real, as people start to refer justice just to the spaces of their gang, club, clan or network not caring much for the total space they are living in and using. In the end that is the undoing of the state of law by admitting states in the state, i.e. by cutting it into peaces and letting thousands of lines of serious conflict appear, in particular those between rich and poor. Many younger contributions on justice deal thus with social-justice most often under the aspect of distributive justice, referring to the material aspect. One author spoke even of the normal fixation of todays discussion about justice on the distributive aspect referring to material goods (Normale Fixierung der Gerechtigkeitsdiskussion auf das Problem der Verteilung der materiellen Gter). 454 While it appears as legitimate to try to devise schemes as to realize that principle, the discourse is often socio-political in style but hypothetical in the matter and also referring to the sentimental and psychological preconditions of just behavior. In the past Platon for example dealt with the institutional and with the mental/human preconditions to produce Justice but also with the nature of the principle of Justice itself. E.g. Locke and Rousseau did the same but looking more at institutional elements. Modern theorizing about Justice seems to favor the institutional aspect on one hand and the one of the psycholocical prerequisites of just behavior on the other. The subject here is different. As said it concerns the nature of the principles of Law and Justice as such. That may help to clarify prerequisites too.

452

Dworkin on The roots of justice, in a book with contributions about his theory of law titled Dworkin un debat, ed. Wesche St./Zanetti V., Ousia, Bruxelles 1999, p. 15-126 453 Walzer M., Spheres of Justice, a defense of plurality and Equality, translated by Herkommer H., as Sphren der Gerechtigkeit, Fischer, Frankfurt a/M 1998 454 Tugendhat E., Vorlesungen ber Ethik, Suhrkamp, Frankfurt a/M 1993, p. 391

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86) As to close the historical aspect of the concept of law and justice we mention again four famous nearly proverbial approaches to justice: There has been the old principle to compensate the same by the same, the socalled Talion-principle (ius talionis), e.g. in old criminal law as in an eye for an eye, a tooth for a tooth.455 Also mentioned above is the principle of mutual respect and attention, that is, the so-called Golden Rule. It is to be paid attention however with this term in England as it is used there also for another case, referring to the interpretation of statutes. 456 Both are obviously forms of the idea of justice in the sense of equality. The principle mentioned by Aristotle (see above), as complementing that of justice, is equity, which refers in its root again to the idea of equality but includes also the aspect of proportionality. Dividing and choosing: In a case where the problem is the just distribution of things there is the old approach of separating the preparation of the choice from making it. That means that the first divides (i.e. making the parts) and the second to choose which part he wants.457

455 456

Zippelius refers for that already to the codex of Hammurabi, Rechtsphilosophie, op. cit. p. 108 Glanville Williams, Learning the Law, 11th ed. London 1982, 106 457 Zippelius, op. cit. before, p. 238

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B SYNTHESIS
V Justice
A) Justice, the notion as such Rarely has there been such a long succession of different words being carriers of the same or similar meaning: Rita Dharma Nomos Logos Justice. It is proof of an age-old endeavor spanning different epochs and linking different cultures. Rita und Dharma are of Indian origin, Nomos (Hesiod) and Logos (from Heraclitus over Plato, Aristotle and the Stoa to Cicero) of Greek and Roman and Justice of Roman origin. Rita meant the Cosmic Order including the earthly one, as did Dharma, Nomos and Logos. Justice began slightly more down to earth as it originated from the word for the administration of Justice, i.e. the sentences or Court Decisions in ancient Rome.458 Who dares to claim in the light of that, that they were not supposed to be just? While Cosmic Order includes the earthly order, Justice means for many people only the latter or even less, namely a just outcome in a specific case. Living no more under starlit heavens, the cosmic aspect tends to be forgotten or not to be needed. We shall see however that Justice indeed refers also in todays world to the general aspect of order, earthly at least and for many also beyond. Today the root of the word Justice is used with a broad meaning e.g. in Jurisdiction and Jurisprudence. Justice is used in the Administration of Justice, Court of Justice, Ministry of Justice etc. and generally for the idea of that which is just. The latter is our subject here. Justice is in the vicinity of equity and fairness and then of Law, which is the word for its application, yet stands also for the general idea, the universal (the eidos). Equity is close to synonymous with Justice and has a particularly practical ring in Anglo-Saxon law where it is used for historical reasons as a mitigation of the rigors of the law, while it is elsewhere of universal meaning. What that can mean under a system of the rule of law shall be examined elsewhere. Fairness is more colloquial than Justice. As it will show that is close if not identical to the meaning of Justice. The term Law applies generally to everything that has to do with the Administration of Justice and its instruments, e.g. the laws. It appears more directed to the reality
458

Dias, Jurisprudence, as cited, p. 47, referring to Stein, Regulae Juris

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and technicality of the matter, as said, to the application of Justice. Ethics as the main field of study of that matter in Greek philosophy may be compared to that. Therefore Justice stands out today and therefore our first subject is Justice, todays name for that which is just and also for the eidos, the idea of that which is just. We shall call it a concept, a principle, with just that meaning. Law and Justice We anticipate here one aspect, which is to be further dealt with below. John Stuart Mill has written about the meaning of Law and Justice and brought out the synonymity of English Law with German Recht and French Droit and the senses of straight and uprightness for just and Justice. 459 Latin iustus means that which is just, right, honest, appropriate, correct. The root recht (straight) can be found in French correct, rctifier, rctilinaire, rctitude etc. and in English as well (correct, rectify, rectilinear, rectitude). Together with the Latin rectus it also carries the meaning just. The English term right carries the meanings of correct, true, appropriate, satisfactory, accurate, sound and so on. 460 The English use of these terms cannot be understood without knowing the corresponding terms in the most closely related languages, German and French as the following example shows. Law has in English a general meaning for all legal matter and the dealing with it and it has a special meaning referring to e.g. one law, i.e. the specific legal instrument. As that specific law corresponds precisely to the meaning of German Gesetz (that which is laid down, set) and French Loi, (which may be approached to the Germanic root leg, legen but also to Latin ligare, i.e. binding, and lex) corresponding directly. Thus it becomes immediately clear that English uses the specific meaning also for the general one. Yet the general sense of Law is translated by German Recht and French Droit both with the original meaning correct and straight (Latin: rectus) or upright. That appears however early on as a characterization of the concept of just, Justice (see above). So the English term Law in its general sense and the notion of Justice refer to the same idea or sense and they are therefore overlapping to a considerable extent. It has been seen that the concept of Justice developed from an early Latin term for court decisions.461 Their meaning, object and purpose are thus undisputable already on the basis of that alone.

459 460

Mill, John Stuart, Utilitarism, as cited See e.g.: Collins, Large Print Dictionary, Harper Collins, Glasgow, 1996 461 see: Kaser, Mill, Dias cited above

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B) Universality of the Principle of Justice By looking at the above historical list of approaches to law and justice it is obvious that there are highlights: The ancient building of Dharma has never been abandoned. The classical world, Plato, Aristoteles, the Stoa, Cicero and then the Corpus Juris Civilis Justinianus reconstructed it, ordered and completed it to some extent. Christianity kept it alive in a concentrated form, despite Augustins try to break it up. 462 Democritus and Kant represent two singular approaches both trying to provide a universally convincing foundation. Democritus found it in mans thinking and feeling by pointing to the structure of our mind - syn-eidesis, con-scientia, conscience. Kant found it in mans reason combined with his conscience explaining him that he cannot have freedom without contributing by his own example to justice, discipline and order the Categorical Imperative. Radbruch brought that with an eye to public and private legal practice into a completed system, clearly distinguishing main constituting elements and addressing in particular the interplay between them, establishing verifiable priorities and antagonisms thus showing the relationships between them. Besides of exaggerated and political positivism, other political statements and the easily misleading utilitarian principle, nothing is to be taken away. The obvious coherence of this common endeavor worldwide over more than two thousand years shows that the general concept of justice is one and universal. C) Another remark on Natural Law A brief comment has to be added here to the ancient concept of natural law, which has haunted e.g. Anglo-Saxon legal life ever since, although it shall not be in the centre of the discussion of justice here. It seemed to focus mainly on two views. One is the view that all is linked and that man belongs into an all including cosmic order. The other is the very concept of linking that order - nature - with law.463 As the Corpus Iuris says in the Institutions: Natural law is that which nature has taught to all living beings.464 In fact it says to all animals. That is pure dharma (see above). It is the ever recurring idea that law is that which has always grown naturally by tradition as without any interference by the mind of man, an idea so often mentioned just in the British discourse (Burke etc.). That view may lead to a very fatalist attitude, insofar as automatically emerging behavior, i.e. also the law of the stronger, may find comparatively easy
462 463

in lex aeterna on one hand and lex naturalis on the other (see above) We do not refer here to Augustinus distinction between lex aeterna and natural law, maintained by Aquinas (see on page ..) which appears to us as an exception. 464 Corpus iuris civilis, Inst. I. 2. before 1.:Ius naturale est, quod natura omnia animalia docuit.

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acceptance. To that contrasts the new natural law, as e.g. established by H. Grotius, which refers to human nature and opens the doors to an attitude of responsibility to oneself but also towards others. It is as if he had seen that the human mind belongs also to nature and that it has its own autonomy, i.e. that it has considerable autonomy and freedom to decide about its own behavior. That had in fact already grown in Roman times, as the idea of the rule of law started to be shaped (see Corpus Iuris, Constitutio Imperatoriam, before Inst. I.I) and it is a precondition of every functioning community. As we shall see, we cannot dissociate Justice entirely from the human mind.465 That remains of importance even if one realizes that it is part of an all including order or that it may have its limitations in existential conditions. Yet it has its space of freedom and the responsibility, which directly goes with that. It is just this domain, which we try to organize according to the idea of a general order, whose aspects and elements we are constantly searching for. This has proven to allow besides of some grave aberrations to generally improve the human condition. In the European context it is important to see that the Christian Church in its older and in its younger branch have collected thorough knowledge about Law and Justice. The younger branch, although promoted at the time by considerable parts of the legal community, tried to make a difference also with regard to that theory. As the recourse to ratio had lead to such evils as the Inquisition and as it regarded, as Bodin and Hobbes in later generations, man himself to be of intrinsically evil character, it referred to the Scripture (and the political authority) alone. That seems not entirely necessary, as there can only be one general concept of justice. It follows also from its own tenets. If one states the universal right to civil disobedience, which was proper in particular to Luther and to Calvin, one can obviously not make abstraction of (real) reason in its broadest sense, which is also at the basis of the whole concept. Some commentators spoke of a burning determination of all Reformers not to allow a conflict between natural law and positive law.466 In this context it is also of interest to mention the famous insight of many a mature man that the world is the best of the worlds possible (Leibniz). Many experiences and insights lead to that finding but one has also to see that it is close to ancient dharma as it is the view of an organic order, though constantly evolving yet without mentioning its responsible and reasonable ingredient nor its development. While it says no more than what can be that is it tends to open the way to a fatalist attitude. The necessity of a link between justice and an active endeavor lacks.

465 466

Not even Augustinus succeeded in trying to do that (see above). See e.g. B. Hring on justice in the New Catholic Encyclopedia, Washington 1967, p. 68ff and the literature cited there, E. Brunner, Gerechtigkeit, Zrich 1943, p. 322, note 27

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D) Main concepts and notions used in the context of Law and Justice 1) The concepts as such It is revealing to list the terms and notions associated with the concept of law and justice throughout history as we have found them above. More or less as they developed chronologically they are: Normal, Not Abnormal, Natural, Cosmic Order, Earthly Order, Piety, Conscience, Mentality, Reason, Virtue, Duty, Equity, Fairness, Talion (revenge, an eye for an eye..), Behavior Appropriate to the Community, Respect, Self-Respect, Mutual Respect, Peace, Highest Good, Truth, Intelligence, Beauty, Harmony, Equilibrium, Balance (aequalitas), The Upward Path, Golden Rule, Golden Mean, Character, Basic Attitude, Agreement, Covenant (Consensus), Activity, Self-Control, SelfPreservation, That which is Correct, Equality, Proportionality, Honesty, Giving to each its own, Straightness, Uprightness, Yardstick, Good Faith, Power, Will, that which could be a Universal Law (Categorical Imperative), Security, Functionality. One term has to be added to that list. It is Standard as it is virtually present in this catalogue. It follows easily from the meaning of normal, not abnormal. Besides the obviously problematic references to Power, Talion (revenge) and Will all of them appear to be correct. As said before Equality, Equity and Proportionality form part of the most important legal terms used in everyday legal practice today. They belong to the General Legal Principles (see below). They are essential tools in an evaluation as to achieve Justice and they are specified according to various areas of the law. Other aspects remain mainly in the domains of ethics and morals, which we shall also meet again below. They will all show up in the following text. Functionality cannot stand alone as it refers to a particular aspect. Utility is misleading. That Justice is indeed not just useful for human existence but necessary is undisputable but that can obviously not serve as a useful definition (see below).

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2) Comparison and General Appreciation As this catalogue starts with developments in antiquity it contains criteria that were classified in the Old World under the title of virtues of Justice and of Moderation as e.g. in Justitia and Temperentia. Obviously they come together in the idea of Justice. Equity appears often in the above discussions, yet as is to be shown below, it is a synonym and adds as such not too much to an explanation of the principle of Justice. The same applies to fairness and correct (see below). One gets aware that the notion just or of justice is applied and to an action and to a state. One could speak of a process and its result or in the language of modern technology of process and product. It applies also to the purpose of the process. If man is the acting person, the brain is needed before the act. Thus that purpose is then also in his subjective intention. Other words like e.g. care refer also to a process, i.e. one is careful or one applies care. The term care does however not apply to a product or a state. It appears just as the general, theoretical term for a specific quality referring to a process. Precision e.g. seems to be different. One can be precise and apply precision, such referring to a process, but one can also call a product or a result to be precise, precisely as with just. Although the meanings of precise and of just happen to overlap to a certain extent, they are not the same. Just refers such to a process and to a product/result. Justice refers to the general idea of being just in an application, i.e. referring to the process and also to the general idea of a state, i.e. the result/product being just, i.e. Justice (see the coming about of an eidos as shown by Plato in his Politeia, as cited above). While words like precise refer mainly to material things, just refers as often to living beings and lively conditions. In the substantival form of Justice it refers but to lively events. It is thus hardly to be conceived as static, yet any idea of elasticity has long since received the connotation of abuse, and has thus become useless for an explanation. In practical matters it is refered to the process, when it is e.g. spoken of the administration of Justice or of procedural Justice. The term just can practically refer to a state, a situation and an outcome. And one can also say with this regard:Justice rules. In the above list there are notions that refer to a personal virtue (self-control, self-preservation, honesty, straightness, uprightness, good faith etc.), yet they can also be conceived as objective criteria. They thus can also be conceived as a general virtue. Both refer to the processual aspect, e.g. an action or as said a virtue.

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Some refer more to psychology, i.e the state of mind of man as actor, as in mentality, reason, piety, conscience, intelligence, character, honesty. They then affect also the action, i.e the process. The terms, order, harmony, balance, proportionality, behavior appropriate to the community and the universality-principle (categorical imperative) refer to another aspect, namely to relationships. That appears immediately as significant and for the explanation of the process, e.g answering the question, how it has to be conducted and for the structure of the outcome, answering the question how does it look like, how is it. A criteria of just relationships between men and between men and things and men etc. seems thus to come to the fore. It is obvious that just, justice do not refer to one person or one thing alone. Several persons, things, events, aspects, are taken into consideration by that one notion. One could call it therefore a complex notion or a relational notion. It appears thus as a general principle, but also as a personal and a general virtue and it refers to an intention, to a purpose referring to an action and to its outcome, a state. It shall be tried to find first the core explanation. As it refers to the active handling of several beings, things, events it has a functional quality. It is therefore looked to a functional explanation of that notion as such. In the past much work has gone into the analysis of justice under the aspect of its fields of application, e.g. constitutional, administrative, criminal, civil Justice etc. That naturally is a defining aspect. One could go through all of the so-called legal, political and social subjects and their sub-subjects and find that term. While they may require to be dealt with as the case may be, they seem often not to contribute too much to the core idea of justice. As an exemplification they remain always valid and sometimes they may provide a defining explanation.

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One can thus distinguish between the following categories of qualities:

-State (fact/result related) order, peace, security, beauty -Purpose (result related) order, peace, security, beauty

-Activity (process related) the upward path, normal, not abnormal, natural, correct, straight, upright -Structure one-dimensional equality, yardstick, talion (revenge, an eye for an eye.) cosmic order, earthly order, harmony, equilibrium, balance, proportionality, golden rule, golden mean, agreement, covenant, giving to each its own, functionality, behavior appropriate to the community, universality principle (categorical imperative) mentality, conscience, character, piety, attitude, self-control, self-preservation, good faith, straigthness, uprightness, intelligence, self-respect, mutual-respect, honesty, virtue*, duty* the highest good equity, fairness, correct

multi-dimensional

-Intention

-Orientation -Synonym

As the qualificative term purpose refers to a result it covers the same qualities as state which is the result. Virtue and duty also refer to a state yet not to the one of justice but to that of man. Both are thus different from the other qualifications mentioned as they do not qualify the matter of justice but the person of man (therefore the asterixes * above). It is usual that an intention or a purpose is dealt with accessorily compared to a thing as such. The intention may be seen as a mental prerequisite but the purpose lives in the thing itself. One could also say it is the thing or it names the thing. In that sense the statement Justice is order, peace and security is valid. But in the following it shall be tried to find first the gist of the matter in the structural/functional sense and then to speak about purpose and intention.

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One can such say that the criteria listed under the titles of structure, intention, purpose and orientation, have also to be seen in the light of virtue and that in the light of activity, and that of purpose also in the light of state i.e. result. Moreover the virtuous aspect applies to each person, i.e. it is personal or to apply to a multitude of persons or to an institution, i.e. to be general. The above list may be disputable under several aspects, yet it serves as an analytical tool. However the undisputable fact that the majority of criteria found over a period of about 2500 years refers to order or to what has been called multi-dimensionality and relationality, shows immediately where the principle of Justice does find its main characteristics. The multitude of criteria however is an indication that this principle of Justice does indeed have several aspects or facets. Expressed in verbal form their meanings may sometimes be overlapping. They shall be further inquired in the following. E) The Principle of Justice as such Justice appears foremost as a general principle, it appears as a general virtue and it appears as a personal virtue. The general principle is twofold. It refers a) to the approach to Justice, how to establish it, how to get to a just situation, such also to the purpose of the action, also called the processual aspect and b) to the outcome and the results of Justice (actual or supposed), also called the aspect of the result or product. One could speak of a functional and a factual understanding of the principle. The general principle appears thus a) as a principle of action and as b) as a principle referring to a state, a fact or an existence. The two virtues however refer mainly to the principle of action. 467 We shall find these aspects again and again mentioned under the following topics and prominent applications shall be referred to under the title basic individual rights and general legal principles.

467

There is a view that the Greeks distinguished verbally between (personal) virtue and the general principle, calling the virtue, i.e. the aspect of duty and action, dikaiosune and the principle of the just state, the just result or existence, dike (sometimes personified as goddess); see: Barney R, cited above, p. 1,2 of 13 (Internet). As these aspects are here fourfold (just action, just outcome, general virtue, personal virtue) one could match them with Pythagoras square, as a symbol of justice, by allocating each aspect to one corner.

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1) The Nature of the Principle: As found since earliest Antiquity (see above): Justice is a principle of Order and in particular one of Co-ordination.468 a) Life originates the principle of justice because it requires it. Life refers to animated existence and in particular to a multitude of individual existences. They represent it and they are thus its end, certainly not its means (Kant). Justice has necessarily been born out of the need to coordinate them. Justice is there to guarantee the necessary space, the freedom of the individual existence within a multitude of other existences and such the state of each individual and of all of them. That means their co-existence (Kant, Zippelius). It refers thus as found before to the relationships between them (Aquinas, Montesquieu, Russell).469 It is there to having them fairly living side by side in harmony and equilibrium. As has been said by the Ancients, it is a matter of order (from Dharma over Plato and Aristotle to Cicero and beyond). It means the absence of collisions, the absence of conflict and therefore peace. If harm and damage happened it means reestablishment, restoration or compensation. One could speak of the healing of wounds or the re-growing of destroyed structures. Life can in practice hardly mean without any friction. Under the aspect of Justice, of a just target/ideal however it does. That means also in practice with as few frictions as reasonably possible. As any existence is an end in itself it means also that nobody has to make more way for others than due. As men need space to live, the opportunity to feed themselves and as they value possessions, that means their fair distribution. It thus refers to the individual and total opportunity and activity and to their outcome. Justice is therefore the name of a specific principle of order. It refers to the social realm. In Hebrew for example it thus reads behavior appropriate to the community. Montesquieu called it a political virtue. 470 Anything said about it has to bee seen under this title of order.

468 469

In the Indian Culture the notion of Chakra seems to have conferred the same meaning. see: Aquinas, Summa Theologiae, II-II, question 58 - answer; Montesquieu, De lEsprit des Lois, cited according to the English Language ed. The Spirit of the Laws. Cambridge University Press, 1989, Book 1, (p. 3) where he insists on the relational character not of justice but of a specific concretisation of it, the laws; and then Russell, who calls justice a universal which refers to relations, op. cit. p. 58-61. 470 See the same Montesquieu, who does not say justice although he means precisely the same but virtue and calls it political virtue (cf. in his foreword to the Esprit des Lois).

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b) It appears that the functional aspect can be positively formulated. The existential result related aspect is more elusive. Besides of order, peace and security, harmony and equilibrium we find only a negative formulation for it, i.e. the absence of friction, of collision, of harm, of discrimination and of disadvantage. c) The principle of Justice is a mental concept. It is a general mental concept, a universal, an eidos, an idea and it is an independent mental concept.471 c) Along the lines drawn by the above summary of the history of the subject we shall in the following inquire into the characteristics, aspects, attributes and references of this social principle of order. By doing that we shall not repeat the citation of the sources, mentioned above, but refer to the mostly prominent authors names. Yet we may hardly claim to have considered them all. 2) Reach and extent of the Principle of Justice As appears from its nature the principle of Justice applies where there is Life. As living beings we can duly say with many others (see above) that its reach and extent are unlimited. The awareness of the principle of Justice may sometimes be different depending on the place, time or subjects concerned. That shall appear once we look at the shifting degree of awareness of that, which is due, right or just, from matter of ethics and morality to matter of law. Yet that applies only to the accessory. As it follows immediately from its nature Justice means everywhere the same in principal matters. 3) The Origin of the principle of Justice The origin of the principle (eidos) Justice is the reality and principle of Life itself for the reason just mentioned.

That point is rather obvious. Yet it may be added that Savigny spoke of Law in general as a common conscience of man (ein gemeinsames Bewusstsein des Volkes), see: C.F.v. Savigny, Vom Beruf unserer Zeit fr Gesetzgebung und Rechtswissenschaft, 2nd ed. Heidelberg 1828, p. 11. One might also refer in this context to the concept of a general discourse (discourse, Diskurs) of Wilhelm von Humboldt and of de Saussure, as cited above.

471

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4) Justice, the Guarantor of Freedom and its Corrective for its proper sake The principle of Justice happens to be on the same level as the principle of Freedom. Both are principal requirements of Life. Life needs Freedom. Yet the same Life requires Justice, the rules of dos and donts that allow the above coexistence. Life cares thus by Justice for the individual lives. It requires it for its own purpose. That is an existential aspect. Such it is that same Life that needs Freedom, which requires Justice as corrective. It is the same Life that needs Freedom, which requires rules and a fair degree of attention to them (see e.g. Kant above).472 That means discipline and it means self-control (Plato). There is no way around that truth. Lets add on the side, that the Ancients knew more about that (e.g. Mencius), namely that the better one does, the more discipline is required in everything and precisely not the other way round. It is in the French literature that we find stated that the universal human rights were drafted in 1789 as to assure la coxistence des libertes.473 We have seen above that Kant described this objective necessity of the principle of law and justice and one commentator has called that a principle of selfpreservation adding: Reasonable self-preservation is to be distinguished from wild self-defense, i.e. by communicative regulation and in principle agreed upon construction of practical action because of being mutually bound by the principle of universality (categorical imperative, ed.). Moral self-orientation by the universality of the maxims of action and also a self-imposed legal statute of means of enforcement as defense against injustice become required explicitly then when no divine being sees to preservation and when theres none by nature. That is indeed the situation under the conditions of modernity. 474 Such the
472

That could to some extent also be deduced from Savigny. While he does not speak in a most general and most specific way of Life as it is happens here, e.g. by thinking as tangible of Life as in an object of legal protection (as e.g. in the clauses of a penal code), he does use the term life when speaking about lively tradition in the sense of the flow of historical life (see e.g. C.F.v Savigny, i.e. stressing the traditional aspect of the natural growthy of law. See e.g.: System des heutigen Rmischen Rechts, vol. 1, Berlin 1840, p. 53) but he clearly describes law as an institute which protects each individuals space of freedom and autonomy (see above). 473 Tunc A., on Droit in: Encyclopaedia Universalis, Paris 1968, vol. V, 796: Heritiers de Rousseau et de Montesquieu, Kant et les redacteurs de la Declaration des Droits de lhomme et du Citoyen de 1789 demandaient au Droit dassurer la coexistence des libertees. But before, see the above mentioned categorical imperative by Kant 474 Vernnftige Selbsterhaltung unterscheidet sich von wildwchsiger Selbstbehauptung durch kommunikative Regulation und prinzipiell einvernehmliche Konstruktion der Handlungspraxis, weil gemeinsame Bindung an das Prinzip der Universalisierbarkeit (kathegorischer Imperativ, ed.) besteht. Moralische Selbstorientierung an der Verallgemeinerbarkeit der Handlungsmaximen und ebenfalls selbstgesetzte rechtliche Statuierung von Zwangsmitteln zur Abwehr von Unrecht werden explicit dann erforderlich, wenn kein gttliches Wesen die Erhaltung steuert und ohnehin eine Stabilisierung von Natur aus nicht gegeben ist. Das jedenfalls ist die Situation unter den

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concept of Justice includes and self-control (Plato) and self-preservation (Kant), the first being the precondition of the second. Justice may be seen in Heaven but it does not fall from Heaven. Thus with regard to the individual participant at that game of Life with other participants it is him to contribute to that frist and foremost. That is not sufficiently done by just adhering to a general contract establishing the state with its laws. It requires his continuing personal contribution also in the spaces yet untouched by the state. That can be described as awareness of the others, their needs and (legitimate) interests or as respect and more concretely as general concernedness and thus responsibility. It is the necessary personal attribute to any claim for personal freedom. Hegels pathetic assertion, that Law is the existence of self-confident freedom (see above) proofs thus to be unsuitable. That statement refers to Law, i.e. to the body of positive law. Still, considering that Law has to do with Justice, in particular because he refers to the Stoa (see above), his concept of Justice could probably not be far away from that. It would however show that it does not comply with what has been found here. Justice and laws based on it can just not refer to autonomous (subjective) freedom alone as Justice is that principle which is there to have several individual freedoms coexisting. Each individual freedom is conditioned by other freedoms surrounding it. The corrective aspect is thus constitutive. 5) The Purpose of Justice Order, Peace and Security It follows from the above that the purpose of Justice is the coexistence of living existences, which means in practice Order, Peace and Security. It evokes ever since the ideas of Harmony, Equilibrium and Beauty, which are more esthetical appraisals of the former. Hesiod described the goddess of Justice, Dike, to be the daughter of Themis, the goddess of order (see above). The relationship is a fact but in reversed order. Order is supposed to follow from Justice, from just action. But it is to be added that this purpose implies real peace and security, which means that each existence is entitled to its fair share of that which is available (since Antiquity, Plato and Aristotle, today e.g. Rawls). One might then say: Justice rules!, thus considering the purpose to constitute the nature of it. By stating that, our innocent beginning turns immediately highly political. If anything, it is that which we call State headed by that which we call Government whos first and foremost task it is to create and guarantee conditions of peace
Bedingungen der Moderne. Kant, Metaphysik der Sitten, nachwort by H. Ebeling, op. cit. p. 403 (translation by the author)

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and security for every existence within their jurisdiction. Immediately we become aware that we might not have seen the wood for the trees, as that which we call Justice is precisely that which is at the core of the functions, which we call State or Government, as clearly shown e.g. already by Plato. This point is strongly to be made, as its importance cannot be overstated. Yet it is not part of the general awareness. It is e.g. undisputed that both and Lockes Two Treatises of Government and Montesquieus De lEsprit des Lois, which are at the basis of our todays constitutions, deal with Justice but both do hardly mention that name.475 Serving their time they were busy taking the government function apart, just in the sorrow of guaranteeing justice, but too busy to mention it. It is about time to start asking if they did not forget half of the story. 6) The Orientation of Justice: the Highest Good Logos the Divine Life But another look provides an even more striking sight: As it is, many cultures have just for that function of order under this purpose used their highest words and names. We see by that clearly a direct line of human endeavor and conception from one government function, the Judicial power, to the realm of the whole government and state as such and then to higher powers conceived above it. Justice is a principle, which touches mans existence on all levels. We remember Heraclitus introduction of the term Logos for the principle that directs the process of the eternal change in the world. He saw it as all-inclusive, including Ethics, i.e. Law and Justice.476 Plato used two different concepts. He called the absolute highest with equal importance the highest Good 477 and God, i.e. the Divine and often associated Truth with them.478 He said that it were above Justice. All this refers to a directing principle of Life. Today the concept of Life is often used as directing principle itself. By doing that, one is entirely in line with the Ancients. Throughout the ages they frequently interchanged these same concepts, using one instead of the other. It makes thus sense to see the reality and principle of Life as Alpha and Omega, the origin and the end of that principle, which we call Justice. Such an orientation invites and requires every individual to embark on an upward path in the words of Plato and also of Shankara, which we shall address under the title of a personal order.
475

See e.g. P. Lasletts foreword to John Lockes Two Treatises , cited above, p. 85 or Montequieus foreword as cited above 476 Barnes J., cited above 58/59, 123 seq.; KBW, 33 477 Naturally in the sense of the qualitative subject good, not as in Goods and chattel 478 Plato, Politeia, 352a), 507a) 521b), 534c)

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The birth of the principle of Justice by that of Life is revealing. If one looks at past times of horror it becomes clear that it is of no use to treat the term Justice in an abstract and lofty way, a reproach made in this context e.g. by Kirkegaard to the philosophies of Kant and Hegel (the latter being followed in direct line by Marx and Nietzsche).479 One should in matters of Justice definitely not loose sight of the wood for the trees. It is however obvious: There is no Justice without Life and there is no Justice if Life is not respected. If Life is the origin and the end of Justice, Life should consequently also be the most important value of legal protection. That happens indeed to be the case, as any civilized legal order immediately shows. But there is more. We shall try below to approach that principle which we call Justice by a comparison with just relationships, with a state (Zustand, etat). That which is common to this particular principle is its adaptability and living character, as to take care in each given case of all the involved existences and circumstances yet keeping firmly its nature and orientation. One could also list this aspect under the title of purpose. Plato spoke of a highest Good, Shankara of a greatest Good. Aquinas mentioned the aspect of the Common Good.480 It was to be shown that Justice is a principle which operates in the social realm. In its existential aspect it means no undue advantages and no undue disadvantages for anybody. That refers to the idea of common well-being, of general prosperity. Nothing else can indeed be the aim of a principle which is there to serve Life. 7) Justice, an Ideal? Is a target an ideal? If one calls it such it is a necessary and real ideal. Without aiming at that target a Society and its State get nowhere, certainly not to Civility. While the intention has to be to achieve perfect Justice, it can turn out to be difficult to arrive there. That has to do with the nature of the matter, which has been compared with the highest Good (see just above) and which can be compared with Beauty (see Plato above). Yet the purpose of Justice is primarily a functional one and the esthetical appears as of secondary importance. We add however that it is not alien to us to see that beauty is primarily functional as it refers to that quality or shape which performs ideally. In this view it refers directly to the above. Still while the optimum is the goal, as in precise measurements the result may lack to a certain extent in precision, despite the best instruments and efforts made.
479

KBW 163; Johnson Ralph Henry, The Concept of Existence in the Concluding Unscientific Postscript, The Hague 1972, 210 seq. ; Perkins R. L., Upbuilding as a Propaedeutic for Justice in: International Kirkegaard Commentary, Vol. 5, ed. R.L. Perkins, Mercer University Press, Macon/Georgia/US 2003, p. 325 seq., 331 480 in: Summa Theologiae, as cited above

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The same has to be said in another way as that seems not to be so obvious. This ideal is a rock-hard and most present reality as a guiding principle, an aim, a goal, a target, a destination, an objective. It serves to protect and preserve living beings. That refers to Justice as a principle of action. But it refers also to its existential character by the application of the ideas order, peace, security, absence of discrimination and disadvantage. When it is not there, that is certainly not of its fault. Its absence is the fault of those private and public agents who failed to act responsibly. Just when it is absent it is of use because just then it becomes helpful as it can be claimed. It is that expression which serves to address a deplorable state of affairs. It is the eidos (Plato, Russell) the idea, the concept, the principle, the expression, which then comes to help, as it is as such a recognized fact. It is as real as a guiding, steering, monitoring device. It is as real as the target for the archer. If he does not hit it he is alone to blame. 8) Justice, a Natural Order? another view of the Origin It has been shown above that the old Indian culture referred to the principle of Justice under the names of Rita and later Dharma. It had there and then already developed into a grown-up and independent mental concept. Elsewhere, e.g. in ancient Egypt, the principle of Justice had remained centered on an idol like Maat and then on an idolized Pharao. From Dharma onwards through the antique Chinese, Greek and Roman cultures up to the occidental Middle-Ages and partly beyond, the origin of that principle of order called Justice had been sought after in Nature. It has been described above how that happened - Cosmic Order, Earthly Order, Normal, Not Abnormal, were the key terms. Another point needs mentioning under this title. It is Albert Camus statement, mentioned above, that there has been a development in the human conception of Justice away from archaic vengeance and retaliation (Talion, an eye for an eye) to a more thoughtful concept. He associated the archaic view with nature and said,Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature. It seems fair to equate Law for Justice in that context. He goes on saying: We have all known that impulse, often to our shame, and we know its power, for it comes down to us from the primitive forests. 481 That archaic pattern may remind to some extent also these other strands of thought who praise the natural, organic growth of rules, clinging to tradition and customs over all and despising reason. It appears thus that the general principle of Justice has been linked with the idea of nature in its cosmic dimension, while the worldly dimension of nature requires reason and discipline. Nature from the cosmic scale evokes order and harmony but also a nature in
481

See: Solomon/Murphy, op. cit., p. 285/286

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the sense of health and fitness. It just seems to be meant to require the individual nature of egoism, weakness and passions to obey that pattern seen in the cosmos and not at all to indulge in exaggerations. Such the principle of Justice has first been referred to the cosmic nature, i.e. to the absolute, often understood as divine, and only later to human autonomy.482 It had been considered that the observation of order in the nocturnal sky led man to realize that he was subject of the same. That means that the rules of the order he saw above, were to be compared to the rules of order surrounding him and that his Cosmos, i.e. the ordered Universe, had to have a direct correspondence on the earth. Thus the astronomical and the moral order were both destined to be snatched away from Chaos. That has been concluded from earliest epics, where the divine was responsible for the order in the heavens as for the order on the earth, and among men.483 That could be an answer to our above question why calendars and laws have originated around the same time and that would, if true, back the above theory. If not, it would at least have lead to the finding of a practically useful instrument. This is said with much precaution, as it is possible that many authors and many people understood the theory of the relationship between Nature and Law precisely thus. If that were indeed an essential element of the origin of Justice and the Law, a general shift in the human mind and in the general discourse from Cosmos to Chaos might over time have essential consequences. 9) A Rational Order The Golden Rule and Kants Moral Law require a rational exercise. That applies to the understanding of the nature of Justice quite generally. At least since Plato, Aristotle and the Stoa, one turned to reason as to explain its nature (see above). That is backed by modern authors. 484 If Justice is an ordering principle, and if it refers to the relationships between existences, then one might be able to describe it along dimensions or proportions? There came up criteria like: Equity, i.e. equal, which is a proportion, Equality, i.e. equal, a proportion, Proportionality, a proportion,

See e.g. Hffe, Otfried, Vernunft und Recht, Suhrkamp, Frankfurt a/M., 1996, p. 24 See: Cassirer, Ernst, Zur Logik der Kulturwissenschaften, 6th ed. Darmstadt 1994, p.1 and 2 speaking of Kosmogonie and Sittenlehre or astronomische Ordnung und sittliche Ordnung or Rechtsordnung. 484 See e.g. Hffe O., in Vernunft und Recht (i.e. Reason and Law), op. cit., e.g. p. 25, 29 seq. under a law-defining aspect and under a law-legitimating aspect.
483

482

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Suum Quique, i.e. to each one its own, from Aristotles distributive justice refers to a special case, namely the distribution, first of justice and then also of things. It means to each one the same according to given circumstances, i.e. appropriate or of relative equality. That implies again the concept proportional (German: Verhltnismssigkeit), i.e. proportionally equal, a proportion according to given conditions. That cannot be further dealt with without knowing the specific conditions applying. In legal practice that principle is every day of effective use once these are established and it refers there not so much to distribution but to the relationship between the means used, e.g. by an administration, and the effects, i.e. the degree of limitations of the freedom of an individual or a business. The principle of the Golden Mean refers also to such a proportionality of the kind of a relative equality. It is know from Aristotle. But one of the major texts, which constituted the official curriculum of ancient China, around the same time and already before, was and is called Chung Jung, which also means the Golden Mean. Observing the right measure is as noble and as difficult a task and certainly worth the endeavor. It joins the idea of the self-monitoring approach mentioned above. These criteria remain of importance in particular the terms equity, equality and proportionality. As said they are among the most important general legal principles in todays legal use. They do themselves not entirely answer the quest for the nature of justice. Nobody said, Justice is equity, Justice is Equality, Justice is Proportionality, while the reverse often holds. But they are important references to the principle of Justice. Functionality was mentioned by Radbruch as a feature of the principle of Justice. It covers two aspects. On one hand it joins the teleological principle of interpretation i.e. the question after the purpose and the effect of a legal principle or a law. On the other it refers to the purpose and usefulness, e.g. of a rule, and to the aspect of application and enforcement. That refers to the very ratio of a rule, thus indeed to rationality.

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10) A Relational Order a) That relational aspect is the key to the structural aspect of the principle of Justice. It is of and requires an ordered structure. It is co-ordination of persons, things, events, often of several of them under a multitude of aspects. Co-ordination involves dealing with several things and to bring them into a state of order, static or dynamic. One can thus speak of the relationships between these things, concrete, intellectual, direct, indirect. Just that happens to have been e.g. the sum of Montesquieus work in De lEsprit des Lois. He called these relationships rapports 485 and tried to establish all the phenomena that form part of them like customs, climate, religion, geography, forms of government, numbers of people, trade and so on. He referred them however to laws. Yet his discussion makes clear that these were directed to justice. 486 Here it shows that this structural aspect is the core characteristic of the very principle of Justice. It refers not just to the general influences on laws but also to all what happens under laws. Justice has to bring all the existences, events and aspects into a mutually or generally acceptable state or order, be it case per case or with the help of some standardized criteria (so-called laws). That immediately gives an idea about the complexity and the multitude of aspects of that principle of Justice. Thats why Aristotle was searching for a law or a general characterization behind it and cutting through all these relationships. He found the principles of equality and proportionality. Yet it might be difficult to find one general law for them, as in each real case there appear slightly different proportions according to the persons, matters, qualities, interests etc. involved. Just, right, correct are just the words for that general idea, co-ordination is an explanation, when these relations are arranged in harmony or equilibrium. When it was said above that the nature of Justice refers to co-ordination it became immediately clear that it deals with relations, including complex relations and relationships. No generalizing statement beyond equality and proportionality (Aristotle) has been found to this day, with the exception but to some extent of functionality (Radbruch). It has been seen above that and Aquinas and Russell had mentioned the relational aspect of the principle of Justice, the first as relations among men, the second as a linguistic fact. Early on however it was Pythagoras who had tried to express that aspect symbolically. He considered the square (1 x 1, 2 x 2, 3 x 3 etc.) to be an ideal expressions of that principle of Justice, as it involves ideal (equal) relationships (see above).
485

Montesquieu, De lEsprit des Lois, book I, chapter 1, first sentence: Laws are the necessary relationships which ensue from the nature of things. 486 His time was loath of dealing with generalities. The concrete, the empirical facts were in the foreground.

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b) One could also say that the term order covers that idea of Justice under the aspect of an overview or of: (1) A general view. (2) On the next level one realizes that such an order has to be achieved. That happens by the activity of co-ordinating. One calls that then also co-ordination in a subtantive form. The concept of order as such but in particular the prefix co indicates that this ordering activity concerns several elements, beings, things, events. (3) On another, next level one looks at those elements and realizes that there are relationships between them, for example A owes money to B. C has to confirm a certain fact to D. E is a condition to be established concerning A, B, C and D. B has to grant to A, C and D access to his land etc. A, B, C and D are all gardeners. B, C and D are ornitologists. A is the father of C. (4) All that can happen under private law, but it can also involve administrative law, constitutional law, international public law and so on. (5) And, all that can be part of one, same case. It can happen in a general case, i.e. involving a general law (as in Montesquieus case), e.g. before a parliament, or in a special case, e.g. before a court of law. The correct establishment of such relationships, leading to peace and security be it by a general law or be it in a specific case, is called co-ordination, i.e. activity, in the course of the process and order once it is finished, i.e. concerning the outcome, the state or result (product). 11) An Aesthetic Order? Justice has taken on an esthetic quality in history as one added the comparison to Beauty and Harmony (e.g. Plato). Augustinus and Aquinas called it Love of the Highest Good and of God.487 They seem to be of the poetic realm, while Harmony and also Equilibrium seem more practical. The latter could even be likened to the rational references above. Pythagoras use of the square as a perfect symbol of Justice is disputable 488 and would have to be situated
487 488

KBW 71, 85 Yet there could e.g. be cited the above four aspects under it, 1) process, 2) product, 3) personal virtue, 4) general virtue,

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between a rational and an esthetic if not a spiritual approach. But it is to be repeated also here that Beauty has a very functional aspect. It is as said that shape that performs best under given circumstances. When in movement, that is also called Grace. That seems to appeal deeply to us, even to the fattest belly. And that makes sense. It refers to ideal proportions, just relationships in rhythm, color, movement, sound etc. In the aspect of just proportions it certainly compares to Justice in its existential aspect and with respect to its purpose. It is also as general and as versatile as Justice. One could ask if the idea of just proportions were not itself an eidos. It seems to be a favored characteristic of Life. While wrong proportions stress us, adequate proportions or even ideal proportions relax and enjoy us in our healthy state. But there we have again just in the defining words and we would thus be thrown back to where we started. If we replace it e.g. with adequate or appropriate the same happens. Therefore just is that word which refers to ideal proportions - for the purpose of Life. That applies also to Harmony (see again below). It is not the place here to comment on the overwhelming existential importance of the principle of Love. While Justice as a normative eidos can be objectively required, Love cannot. But after these comments it is as if we required something like Beauty (just proportions) in daily social dealings. Could it be that we are requiring here ever since what we consider impossible under the esthetic aspect? The approximation of Justice to that other real ideal appears justified. The achievement of real peace and order in particular out of a state to the contrary evokes certainly the idea of beauty. And then we read that beautiful sentence: Beauty renders truth tangible. But that stems from a contemplation of works of art, where the term truth takes on a wider meaning.489 12) A Personal Order a) Kongzi (Confucius), Socrates, Plato and Aristotle and their followers all stressed the fact that education of the individual is a necessary precondition to just behavior. That appears as an eminently personal aspect. As found above it became Think! by Plato. One could add: Look around, ask, inquire! It means also belonging to a community, i.e. a State (Plato), thus being informed. That is supposed to help shaping the character to one that sees, knows and understands the above nature of Justice, to a just character, finally a virtuous character, dedicated to truth, aware not just of its rights but also of its duties, its general and personal responsibilities, to itself, i.e. self-respect and to others, i.e. to mutual
R. J. Dostal, as cited, p. 31, referring to Gadamer and to Plato, Phaedrus, 250: It is through beauty that the recollection of truth is awakened. As that fan of a female singer, who said on TV: When she sings I hear the truth.
489

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respect. That latter aspect turned out to be very helpful in daily life. It became called The Golden Rule (since Confucius and Plato and beyond, also called regula aurea): Do not unto others as you would not wish them to do to you.490 It includes the other old, even more direct admonition Neminem Laedere (Dont harm anybody). Chinese culture wisely stresses the former too, self-respect, confidence, which presupposes the individual to be appreciated, to be loved. On that can build the latter far better, one might add. In Roman times Honeste vivere (living honestly) was added to the above as a personal and objective rule. It means in reality most often sticking to Truth. To that came suum quique to each one its own. That can be seen as a concretization of the existential aspect of Justice, i.e. its purpose and result (see below). But it can also be seen as a concretization of the active aspect of Justice. As such it means abstaining from egoism. Live and let live, i.e. let the others live too. b) Plato made an explicit case of mans personality (the soul) consisting of different parts (wisdom, courage, desires), thus being able to attaining justice only by keeping them in equilibrium and harmony (see above). His final answer after the long inquiry of Politeia was that Justice means Self-Control. We immediately see that this entirely fits with the above. We cannot always expect the necessary ordering or monitoring function to come from outside, i.e. from the official authorities. We, part of that, which we call Life, have first to contribute ourselves to that. It is required that we do this by developing our capacity of monitoring ourselves. That means self-control. But Plato explicitly required the same also of the state, i.e. of the institutions. That this objectively is a precondition to mans self-preservation has been shown above. And by that the aspect of community enters the picture. Justice preserves and protects the individual, but it is no individual principle. It refers to several individuals coming together, to a group, to a community. Thats why e.g. the Hebrew language carries the meaning behavior appropriate to the community (see above).

It is peculiar to e.g. English and American Law that it understands that same term golden rule differently, i.e. referring to a specific approach to interpretation in the sense that words must be given their ordinary meaning, or one that avoids an inconsistency, see: Oxford Dictionary of Law, 2002, 262; see for the latter also Blacks Law Dictionary, 8th ed. 1999/2004, p 713, in the sense of a liberty to depart from the littoral rule that leads to a repugnant, absurd, unjust or inconsistent result, also called Baron Parks rule. See also Williams Glanville., Learning the Law, 11th ed. London 1982, p. 106-108, citing the case that e.g. a statute was to be corrected because it foolishly said or while it meant and.

490

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c) Two singularities mentioned above are also to be arranged under this title, namely Democritus Syn-eidesis 491 and Kants moral law. They refer to a personal impetus. In Democritus that appears as a given reality, in Kant as a rational endeavor. Democritus said, whether wanted or not, each personality disposed of a Syneidesis (Greek, translated in Latin: Con-scientia, which just gave our word conscience), a conscience, which indicates the correct way. That can be found in a slightly different formulation also in Mencius, Hutcheson, Shaftsbury and Rousseau, who where of the same opinion. It is mans tragedy that he finds himself so often between the requirements of his conscience and institutional imperatives (a term coming from business life, e.g. by B. Graham and W. Buffett for irrational and inappropriate investment approaches), i.e. the one-sided requirements of ones firm, a party, a group, ones existential basis. There are times when it appears fashionable to let oneself go and there are times, when more people stick to a more or less virtuous line. That Conscience is indeed a reality need not be discussed further. It belongs to mans unhappier times, when he tries to ignore it (see more to that in Mencius). Kant spoke of a moral law in man, for which he presupposed the above, as he believed man to be healthy, intelligent and capable to act according to his own reason. As a reasonable rule leading to Justice, he formulated: Act so, that the free use of your will may coexist with the freedom of everyone according to a universal law (his categorical imperative, see above). We realize that this, which Kant used as a kind of mental test is precisely that, which makes up the basic nature of the principle of Justice, as mentioned above. The principle of Justice is that universal law as it refers to all existences and to all concerned in given circumstances. He presupposed the above virtuous men, who had gained insight into the nature of justice. It may have been his experience in his time that those who participated in a debate (e.g. his friends, colleagues, his students), were educated, well informed and (thus) rather virtuous. And for the rest he may have assumed the efficiency of the growing public instruction and education as it appeared by the end of the 18th century. We have been able to learn since, that this remains a necessary and everlasting program. One becomes aware that the above Golden Rule is also a comparable exercise of reason.

491

It has been seen above that eidos means idea and that its meaning comes from plan, design. Such one might be tempted to shift from together knowing (con-scientia) to control knowledge.

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d) Furthermore there is a third personal foundation supposed to be leading to just behavior. It is the ancient one mentioned by Plato and Cicero and taken up even by Kant at the end of his Critique of pure Reason. It is similar to the above Orientation of Justice i.e. the orientation to a Highest Good, also called Logos, God or Divinity. It is to be conceived as supreme directing principle as introduced by Heraclitus and mentioned by Plato, Cicero and Shankara, linking it with the older concept of a Cosmic Order including the earthly one (Dharma). It may have a link to Conscience as it has to be seen and understood through it. That which appears intellectually as a final orientation of Justice requires also a personal endeavor. e) Such a personal disposition was called a basic attitude and a mentality by the Ancients. That they were no nave idealists is shown by their use of the terms activity and energies, which means reality, in that same context. They did not deal with Justice in the sense of an intellectual exercise. They meant business. They wanted to see that personal development happen in reality. Had they not shown that Justice is not possible without? What applied then, applies today. Therefore Plato, Aristotle and Shankara spoke of an upward path. Shankara invited man, like Kant, to choose and to strive for truth, beauty and goodness. He called that an endeavor to progressively approximate the highest Good (see above). f) With Virtue the aspects and qualities of Honesty and Truth show up. It corresponds to Ulpians first precept of the law Honeste Vivere (see above). The importance of Truth cannot be overstated in the light of Justice. If the latter is there to avoid frictions and collisions, Truth is certainly a universal receipt to achieve that, be it as a personal self-monitoring principle, be it as a principle in public and institutional matters. It happens to be something like a common denominator. With the well known exceptions in some cases of social life (e.g.: Is it necessary to tell everybody that C has been seen with A?), truth refers to all. It has been known as a major aspect of Justice since the concept of Dharma. That is reinforced by the fact that it shows up in legal life also as a duty of those who apply the law (e.g. in the principle of due process of law) but also on the side of the rights, i.e. as one of the most important values of legal protection. g) In the immediate vicinity we find that of Responsibility. It follows directly from the functional principle of Justice, which is, as we saw, a matter of Life. When rules are to be observed, respected, frictions and collisions to be avoided, to be repaired etc., it cannot be a neutral affair. Living beings are concerned as

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bystanders, actors, victims etc. Life makes that general and special duties are presupposed or resulting. Virtue as such includes a feeling of consideration, respect and concern and of general responsibility for ones situation, which happens not to be in vacuum but in real life. It appears in Ulpians third criterion Neminem Laedere (not harming anyone) (see above). Yet the general character of the principle shows also when one looks at the neighboring terms Respect (Self-Respect, Mutual-Respect) cited already by Democritus and Plato in this context and also Reference by Dharma. All three refer to the element of Responsiveness. It is that which fully developed in procedural justice (due process, e.g. audiatur et altera pars, i.e. the right to a fair hearing). That in turn highlights the aspect of Impartiality and makes clear that it is part of that of Responsibility. That includes the judges (the one who is supposed to act in justice) duty to study the case and all its relevant circumstances properly, to ask questions and more. And it becomes most clear, when one starts to look from the side of the contrary of justice, which is arbitrariness. Under this aspect it was found that arbitrariness is avoided, when all relevant elements have been considered and all irrelevant elements excluded. 492 That means not just hearing the parties, but looking into all directions, paying due respect to all relevant elements. Responsiveness presupposes Attentiveness and Circumspection and it presupposes Impartiality. Responsibility covers that in the broadest sense. It becomes immediately obvious that just action requires responsible action, which is one that takes all relevant aspects into due consideration and leaves the irrelevant out. It follows that there is no justice without a responsible approach and then that there is no Justice without Responsibility. That corresponds to the Codex Justinianus definition if Justice - Ius est ars aequi et boni insofar, as one looks at its second element boni (goodness). This means in the context of Justice the sympathetic look in the interest of the ones concerned into all and everything, which matters and to leave out that which does not matter. That is acting responsibly. But it includes also that other important practical aspect, which is Impartiality. A responsible approach excludes any bias, any partiality. It includes obviously knowledge and reason as no real reasonable action can be conceived without them. And not least it is also to be referred to mans autonomy, which entails responsibility, stressed in particular since the Renaissance, e.g. by Grotius and by Kant. That means that man has his space of freedom and autonomy but also responsibility, his own and proper rights and duties. And it further means a fair degree of civic spirit and solidarity, see below

492

As it happened, by the Supreme Court of Switzerland, see: BGE..

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h) After having, though succinctly, looked back over 2500 years of dealing with Justice the question emerges: What are then now the most useful receipts for each man and women, boy and girl in daily life? It appears immediately from the above: (1) (2) (3) (4) (5) Not fighting ones own conscience Living honestly (Truth) Hurting nobody (Life, Responsibility) Rendering to everyone its due not being egoist live and let live (Life, Responsibility) Self-control (Responsibility)

For each finger one precept. It is clear that the third precept not hurting anybody could be replaced by the Golden Rule: Do not unto others as you would not wish them to do to you. It has the same aim. It requires additionally seeing oneself in the position of the other. It is a personal choice, which one to prefer. Summed up all that comes down to: (A) Life (B) Truth (C) Responsibility By being aware of that one can still respect ones conscience and work at ones self-control by aiming at the Golden Mean.

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13) From a Personal to an Interpersonal Mental State As we saw above Justice is in one respect a personal affair. Everybody has its own perception about it. Lets think of Antigone again. First her feeling was entirely personal. But then she thought that what had become her conviction applied generally and in the end it did. That was Sophocles fiction. But the process of the possible growth of a concept like Justice is shown appropriately. As soon as we are personally convinced it tends to go beyond us. We may find that it applies to the others too, that they should see it the same way. As we do. That comes from the fact that inner justice is a mental perception, yet often shared by many. An agreement, a consensus between many may form about the Justice of a solution or situation. Therefore it can get an objective quality also under this aspect. One may think of something like a contractual agreement between many, which is also a purely mental reality even if it is written down. All that is the description of a possibility. It is not a given set of facts. It may happen thus, yet there is no rule about it. If personal concepts of justice coincide that picture fits easily. If they diverge, such a consensual structure is incomplete or remains inexistent. There is only a minimal link in emergency cases when peace and order may have to be restored by force. It is then reduced to the common knowledge, may be with a grain of acceptance, e.g. about submission. The terms agreement and consensus evoke the further term convention from convenire, Latin for coming together. They all refer to the fact of people joining their intentions, thoughts or opinions. As it happens it is in this context that also the institution of the Law shows its potential. As a more or less impartially pre-established rule, taking into account essential interests and purposes it allows a judge to apply the law to a specific matter. Justice happens thus to be readily established in a rather convincing way as the above agreement-like structure is pre-established in the law. We shall come back to that below.

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14) Justice, Right or Duty? Both are concerned. Thus immediately the aspects of moderation and coordination show up. With the concepts of virtue, personal endeavor and responsibility mentioned above the notion of duty shows up. Justice with its elementary importance for human existence certainly covers that aspect. But it goes beyond that. It is owed to oneself as it is owed to others. It makes sense to remember the senses it got already in antiquity: behavior appropriate to the community but also not just self-control but self-preservation (see above). Yet that concerns everybody. Thus it is as much to be conceived as a right as it is as a duty and it appears that it has also the meaning of mutual-preservation. Which position and quality happen to be accentuated depends on the practical situation in question. Therefore it is nothing less than an existential concern of man. If man is aware of that it is as all-including and universal as a basic attitude and a mentality as seen above. 15) Justice, an Agreement? Epicurus likened the principle of Justice to an agreement (see above). That is supposed to be mutually agreed upon, tacitly or expressly, in a community or a society. Thus he refers indirectly to e.g. Platos contractual scheme not only as origin and basis of the state but of Justice. People do usually not make explicit agreements naming Justice as subject, but they adopt constitutions and make laws precisely with the intention to achieve order, peace and security, i.e. the purpose of Justice, and by that with the intention to support Justice. Thus it makes sense to see Justice as an object of agreement and of the state, in particular when such an agreement can be established in reality be it by tradition, customs and practices, be it by explicit laws. By that one arrives at the consensual and institutional aspect of Justice.

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16) Justice, a Public and Institutional Order Quite certainly, as found, it is the ordering function, which is at the core of the nature and existence of a State and a Government. Self-control on that level means in Platos sense the harmonious life between classes in the state (guardians, executives/officials, farmers/craftsmen). Today or better, since Locke and Montesquieu 493 , it is understood as a harmonious life between the main government functions (Legislative-, Executive-, Judicative Power). We call the institutional set-up with this purpose Separation of Powers. It makes perfect sense to exercise self-control in these functions to assure that harmony. It involves certainly Truth and Responsibility. Today it is often helped but also growingly complicated by legal rules. But it is not just the set-up, it is the whole working of the official institutions which are supposed to be directed to justice, institutions on one hand and office holders personally on the other. That concerns the entirety of the existing legal rules, their application and their effect. That refers to the public and institutional effort. But we cannot omit to speak of the legal rules. In conditions worthy of the qualification civilized they are concrete expressions and applications of the principle of Justice. If the working of a Society and its State are based on a legal constitution one can speak of the Rule of Law. It has a clear and plain meaning: A society and its state (including government) obey primarily not to a human but to a normative authority, i.e. the legal rules in place. Sometimes everything is personalized. People are tired to think complicated things, they just look at the persons who are in principle supposed to apply the rules and they do not trust them to do so, nor are they ready and capable to act themselves e.g. in Kants sense. The rules are made a mockery of. The Ancients would say, tyranny is around the corner, if by that very fact it is not already here. But if the rules work that is itself the embodiment of civility. It is today the major form of institutionalizing the just working of a State. It is the institutional corollary of personal Self-Control. That requires also the adequate application of these laws, which is the matter of good government. Only then it can be spoken of SelfControl on the institutional level. Its achievement requires an everyday endeavor on the upward path (Plato) comparable to the one on the personal level. The mentioned principle of Separation of Power is only one, by now well known and all too often misunderstood or disregarded principles in the framework of the rule of law. That requires in fact that all official functions are properly distinguished, coordinated and accordingly regulated comparable to the modern organization of
493

We shall not omit to mention that a clear separation of powers, i.e. between Judiciary and the Executive, existed in the far advanced system of government of China already 3000+ years ago. See: The Book of historical Documents Shoo Qing

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a commercial enterprise (job-descriptions). As is obvious the application of the principle of Justice goes from top to bottom of a State. While all that is easily said, it has to grow step by step out of a given society. It has to be 1) known, 2) understood, 3) accepted, 4) respected (mentally applied) and 5) practically applied and followed in the reality of everyday life. We have seen that Mesopotamia (Hammurabi) had set examples of that approach already 4000 years ago. We have also seen that China was united by the consequent application of legal rules. That is still decried today, i.e. after 2000 years, as harsh Legalism, as it has not only been a new thing, but was furthermore too brutally enforced. Yet todays World on the national and on the international levels happens to be organized by legal rules. It is a question of adequacy that the right rules are found and of discretion that they are correctly followed and applied. One is tempted to consider it to be self-evident that these rules grant rights and freedoms from and towards the state and other people, e.g. under public and under private law respectively. There will be said more about that below. 17) Justice, a Means a Principle of Action As soon as there is a clear concept of the principle of Justice it requires to be applied in the social realm. Even the above general qualifications might serve for that. Transformed into concrete laws and their application make the active quality of this principle even clearer. There can be no doubt about that. Justice is destined as a principle of action from Society to its State, to its Legislation and to its Application. It is thus a means. 18) Justice, an End, an Outcome, a State, a Condition a Principle of Existence The purpose of Justice is order, peace and security. By that it appears that Justice has both the quality of a means and that of an end (see above). The outcome of Justice i.e. the just arrangement of things (order) is the desirable state. It can be lasting. Therefore Plato could call it Beauty. As we shall see, Laws tend to arrive at this by just rules. The effects, the situation arrived at, the situation existing have to be just. Thus the principle of Justice refers to both, to a means but also to an end. Radbruch has convincingly shown that there are not just core aspects of that which we call Justice but there are distinct relationships between those, tensions and antagonistic relationships, i.e. polarities and an inter-play between them. That makes clear that Justice is not to be seen or thought as an immobile object, or a fixed structure, but besides being a principle of action on one hand as a state or condition (Zustand, un tat, une condition) on the other, with

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several distinct qualities, which may change according to the situation, yet keeping the direction towards the same purpose. Thinking and feeling about Justice or injustice is probably correctly addressed as a mental state. But as several men may speak similarly about justice with regard to a given specific situation, the perception of this state may get an objective quality. It is an ever recurring mental eidos (idea, concept, principle) which is destined to translate into reality and to show up there. 19) A Means, an End, but also an Endeavor a specific Principle of Action As Justice is an ideal state, Platos, Aristotles and Shankaras emphasis on the upward way and on the activity towards it makes sense indeed. That is part of the meaning of the feature of character as required by Aristotle. To conceive it as duty is a necessary consequence. To think that one could not even be there, having understood that, borders to the tragic. Justice can be seen as an Ideal yet it is a necessary Ideal. Human existence and human behavior provoking the recurrence of personal and general claims to Justice time and again proves that ever since. So it is an objective and a subjective necessity to strive after it. That meets in a rather pragmatic way with the ancient sayings: The way is the goal and Not going forward means falling back. The purpose is to get somewhere specific. For that one has to move and that in the right way. See to that also what was said under personal order above. That makes it clear once again that the idea and the practical objects of Law and Justice cannot be dissociated from the areas of Ethics and Morals as we have seen above. 20) So-called Kinds of Justice It was said above that one calls just or Justice the behavior and action according to the existing laws on one hand and, on the other the universal approach to it. Aristotle called the first conventional, and the second natural.494 We call the first lawfulness or legality and consider it an obvious functional necessity of any legal order (see below). His distributive, retributive, corrective or commutative Justice has been dealt with above. What interests us here and what we encountered above is the quest for the universal nature of Justice. That includes the consideration of phenomena like just behavior, just mentalities, just approaches, just persons, just actions, just situations. Individual persons in private life or in business life and public officeholders or
494

Aristotle, see above and Nicomachean Ethics, V.10.4/5

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administrations, governments, the legislative, the judicative and the executive bodies owe or are entitled to demand Justice under the aspects of doing something, of not doing something or of tolerating something as the case may be. There are cases of acknowledgement, establishment, allocation or reestablishment of facts, of states, of interests, of protection, or help, of contribution, of right and of duty, of entitlement, of participation, of grants, of commandments, of prohibition, of bans, of deeds, of negligence and of misdeeds, of punishments etc. Procedural Justice e.g. (sometimes also called formal Justice) concerns the rights and duties of parties on one hand and public authorities on the other in administrative or judicial proceedings. It is surprising that no specific notion of Justice in regard to the legislative body and its rights and duties, has become prominent, i.e. where Justice in its general and principal sense has to be observed first and foremost. The hope of a guarantee that Justice would be arising from well designed institutions, i.e. the dream of a more or less automatic observance of Justice, has been terribly disappointing. Hardly a surprise, as it is humans who are to operate such institutions and proceedings. 495 It is and can however be addressed in proceedings of a constitutional court where there are also several aspects of procedural character to be observed (i.e. concerning presence, presidency, precedence, participation, information, voting, counting of votes etc.). But despite all these specifying notions there is hardly a situation in human life where the aspect of Justice could not come up. It is again to refer here to most prominent applications of Justice as mentioned below under the title of basic individual rights and general legal principles. Further aspects of Justice shall be dealt with in the following points. a) Internal and external (outer) Justice Outer justice refers to the desired result. That is social order, peace and security. This is directly addressed by that, which we call the purpose of justice. The just arrangement (order) of things is the sought after result. If outer justice corresponds to the end inner justice corresponds to the means aspect of justice. That shows the relationship between an inner and an outer side of justice clearly. That relationship has itself a name. It was called Activity above referring to the picture of the upward path. Just is a quality that applies to the means and to the end (and to the relationship between them) but it makes sense to address the outer part as order, peace and security. It has been shown above that it is not absolutely necessary to associate outer peace and order with power, but it has also been said that for practical reasons, in particular in emergency situations,
495

See to that also Kelsen and Luhmann above, criticized for this same (rather obvious) fallacy.

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such an association may become a strong necessity (e.g. Hobbes, in our time Radbruch) Inner justice refers to the personal thinking and feeling of the ones concerned, and if there are, of observers but also of the general public. It refers only indirectly to what we called above personal Order. The inner part has also much to do with order, peace and security. It can be called inner order, peace and security. Peace and order in our thinking and feeling usually arrive when we are convinced of justice. Simply said, one usually sleeps better with justice than with injustice. This practical consideration makes clear that this aspect is different from the inner peace which people may have to make with themselves e.g. just in cases when they have to overcome cases of grave injustice. Yet the latter confirms what is said here, i.e. the reality of an inner order of the mind and of a peace of mind. The criteria for such an order are in the case of justice not arbitrary. They are rather objectively valid. See below. Compared to the mentioned case justice refers to a benign inner peace. Justice is such a means and an end, may be even an origin. The association with order, peace and security remains valid throughout. That has been repeated as we saw above for more than 2500 years now. It remains true. The aspects of inner and outer justice belong together. They are mutually dependent. One cannot reasonably conceive outer peace without inner peace. If an essential part of a population is convinced of injustice there is not much chance for outer peace. The same applies vice versa. There may be the danger of governments subjugating a population entirely against their inner feelings of justice. That remains an extreme example and general experience shows that they tend not to last, as several cases in the 20th century show. Vice versa it is not only a theoretical possibility, that governments may be subjugated against their inner justice by the public or in particular by active minorities. It can also be observed how much governments rely on open or tacit public support or conviction. One can point to frequent opinion polls and to population control measures. But the danger of arbitrariness is a reality for any government as it is for any group or association and their representatives participating in it. The fact remains that it is in the end the population, made up of every single person in it, which forms a society and a state. Its common features show through in any political system. Again, Justice is no mathematical and no mechanical object. There tend to be exceptions in everything. That does not destroy the objective reality of its main features. As Radbruch has shown, it is in emergency cases that purpose of external or social order, peace and security that can become a priority. 496 In normal times that happens to be tacitly presupposed and the

496

Radbruch, Rechtsphilosophie, op. cit., p. 74

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internal peace and order, i.e. the personal feeling and conviction of justice become conceived as a priority. We call Justice that which has to do with the inner order, peace and security, i.e. the mental concept, while we call Justice also the outer order, peace and security, i.e. its purpose and actual result, referring to the first. These are two aspects of the same thing. We can say that Augustinus, Bodin and Hobbes, Spinoza, but also Bentham and Austin cared much for external Justice, i.e. peace and order and were loath of talks about inner peace and order, i.e. Justice as such, which were more in the minds of Antigone and the ancients and of the moderns from Grotius to the generations through the enlightenment which had the leisure or inclination but also the experience to care more for that aspect. b) On the subjective and the objective aspect of Justice Justice is seen as something eminently personal. On the other hand people claim its universal validity, independent of personal influences. The terms subjective and objective are used here in that sense. These aspects are not the same as the above aspects referring to the inner or outer quality of justice but they may coincide. Inner justice e.g. intersects with the subjective aspect but inner justice has also an objective aspect. See above. That Justice is of a subjective view or feeling has never been contested. There have even been schools of thought (Sophists, Positivists, Relativists to some extent) who claimed that Justice is only subjective. Antigone has been cited as an example, where the origin and growth of a personal feeling and a conviction of justice can be observed. Everybody experiences that himself. When personal feelings and convictions diverge between several people in a given matter, then the subjective aspect of Justice becomes obvious. As to overcome such divergences men start to communicate as to collect and compare information with the purpose to reconsider their tenets, to adjust, to change, to replace, to complete them or we end up sticking to our initial approach. Such a procedure leads nearly always to a reduction of such divergences though not always to an entire disappearance. The elimination of the well-known information gap is a practical example of such a tendency to objectivity. All objectively verifiable facts and events can be called objective. But we think here of objectively verifiable aspects of Justice. That is something more specific. By human standards the eternal quest for Justice qualifies already as an objective given. That applies even to certain elements of Justice. According to human history notions such as equality, proportionality, equity have a good

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record with this regard. They have proven useful since more than 2500 years now (see also below re: general principles of law). In the light of that it is difficult to call them unsuitable or not existing. It also is practically impossible to govern without meeting their sturdy reality. Furthermore it appears not to be convincing that Justice can only be conceived as normative as laws and could therefore not be proven 497 (but see below). Yet this seems to apply for Justice in the sense of a means but not for Justice in the sense of a state or condition (see below). Approaches, which contest its objectivity, tend to show that one can apply a wrong kind of yardstick to it. They deal with it as if it were a matter of mechanics or mathematics. c) General Justice versus specific Justice This antinomy refers to an example mentioned by Aristotle, where he brings the principle of equity into play (see above) and to one of the antinomies mentioned by Radbruch (see also above). It is said that general clauses of a law represent the general idea of justice with regard to a certain subject matter. On the other hand is said that the solution found in a specific practical case represents a specific idea of justice taking into account all the specific elements given (justice of a singular case, Einzelfallgerechtigkeit). Aristotles problem and Radbuchs antinomy can be seen, when the concrete solution according to the general rule of a certain law appears inequitable in a specific case and where Aristotle calls in the principle of equity and Radbruch that of functionality as to find an equitable solution for a given specific case. Equity understood here still in the general sense of just, fair and ethical, not in the very specific and technical one as it acquired under English law. Radbruch spoke of functionality because under todays dense legislation there appear not so many cases anymore where one could base a decision alternatively on a free evaluation according to equity. The judge has to act within the framework of a given legal order. He thus uses to look at the possibility to construe the law or he asks if there are lacunas to be filled. In both cases one of the first things to happen is to take a step back and to ask: What are the purposes of that law? And, thats where the term functionality comes in. As Radbruch had said, it is such but a more specific variety of Aristotles idea of equity. It is to be added that there is also another use of the term general justice. It refers there to a society applying the law through government, administration and courts.

497

see: Radbruch, Rechtsphilosophie, op. cit., p. 15 seq.

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d) Distributive and Retributive/Corrective/Commutative Justice This famous distinction by Aristotle has been mentioned above. The kind applying between individuals has been translated as retributive, sometimes as corrective Justice and by Aquinas it got the name commutative Justice (see above). The kind applying between official authorities and individuals has been called distributive Justice. While today in times of abundant codification and jurisprudence many legal clauses or cases do match one or the other of the aspects of distributive or retributive justice, these two kinds of justice do not suffice to cover all cases of e.g. just, appropriate and correct laws nor with regard to the problems a judge has to deal with in legal proceedings. Various legal clauses in civil law but also with regard e.g. to security, health, hygiene etc. legal procedure and legal decisions have not much to do with either of the above. All of them can have to do with the notion of Justice, none however matches the idea of co-ordination, nor of self-control, nor of self-preservation directly, which happen to be at the heart of the matter. The aspect of distribution looks different today compared to the old world. There is no overlord, arbitrarily distributing his graces but those who make constitutions and laws and those who participate at their elaboration, usually based on the principle of representation. The application of preexisting legal rules cannot be likened to a distribution. According to modern constitutions Justice is to be distributed on the basis of the principle of equality before the law applying to everybody the same way, so is the distribution of water and infrastructure etc. Sometimes the aspect equal is met but indirectly (e.g. in tax law). Therefore the aspect of proportionality comes in, as already Aristotle has found. While the principle of equality before the law prevails for aspects likened to distribution, the ones of so-called retributive Justice can be compared to modern torts law. Contract law is another matter. Aristotles lasting achievement out of the mentioned discussion is besides of the establishment of the matter and the possibility of classification as such, certainly the development of the principle of proportionality and the principles of interpretation and completion of laws.

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e) Social and Political Justice It has shown above that all justice refers to human co-existence. It is thus always social and always political. Quite often it has also a qualified political trait. That applies e.g. around questions of non-discrimination and participation. However the term Social Justice looks in particular at the results of the workings of Society and its State and asks if they correspond to the purposes of Justice which are order, peace and security. Not least under the aspect of order it considers the fair distribution of space and possessions. This is often considered to be but a so-called political consideration. In fact it tends to have to do with the real working of a state. That is the term which happens to shine up in younger literature about Justice quite often. It refers then to the case of the just mentioned distributive Justice (see e.g. Rawls). It is one important aspect of the principle of Justice as said above. Some authors seem to think it to cover the whole question of Justice. That is not the case. 21) Justice and Reciprocity Reciprocity is another principle mentioned by Aristotle though not as an equivalent to justice but as a cause for social cohesion (see above). As social order, peace and security have been found to be the purpose of Justice and since they are usually furthered by social cohesion, reciprocity comes, if Aristotle is right, close to that. Reciprocity is in particular one of the principles that has been developed during the past centuries under the title of international law.498 It turned out that it was bad style of state A to accept help from state B but to refuse it once it was in the same position or to have its citizens enjoying liberties in state B but to refuse the same to the citizens of that state. On closer consideration reciprocity is a form of applied equality between the ones concerned. That goes beyond the talion principle as mentioned above but puts the finger on the requirement of basic equality in a community of nation states or members of a society. When A sells to B, A should also buy from B, for instance. It is of interest that modern theory mentions it under the title of Justice (see instead of many Hffe above). That is not at all a theoretical deficiency. Much to the contrary it could be an alarm. It could be that some modern societies do not always observe the most primitive forms of social justice, which is a precondition for social peace and thus of Justice.

498

Simma B., on Reciprocity in: Encyclopaedia of Public International Law, vol. IV, Amsterdam 2000, p. 29 seq.

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22) Justice and Friendship Friendship again happens to be a term used by Aristotle in the context of Justice. As seen above he used it when talking about civic spirit (Brgersinn) or harmony (Eintracht). That seems to have been a constant reminder in the city states of old Greece against quarrelsomeness and for political stability. 499 Naturally that is helpful for Justice as a friendly approach allows to overcome egoist aspects and to see the interests of the others. But friendship has also another side. It shall be stressed below that objectivity and impartiality are important expressions of justice not least in procedural law (e.g. under the principle of due process of the law). As friendship by its very character easily leads to partiality, it entails, if given e.g. between a party and a judge, usually a legal disqualification by procedural law. That aspect prevails in legal practice. Friendship is thus not further to be discussed here as a feature of the concept of Justice. 23) Justice and Solidarity Solidarity is another aspect which belongs with the aspects of reciprocity and friendship to the wider discussion of social justice. It has also directly to do with the personal and the political aspect of Justice (see above). It is a fact that the establishment of legal positions and relationships as such, e.g. legal rights, conceived between the individual and the state on the one hand or between individuals themselves on the other, is of utmost importance but remains precarious because laws and rights can and do not function properly in a vacuum. These stets of rights (legal relationships) may not come about at all or remain isolated as they do not make up the whole realm of living existences, interests, necessities and attitudes. In a living social realm an individual is not only concerned by clearly defined legal sets or structures (also called legal institutes). Modern legal orders let that appear by stating thousands of cases of responsibility in all areas of law. Modern international public law makes that clear by admitting the aspect of reciprocity ever since. Ancient Greece and in particular Aristotle caught that obvious and most tangible reality by stating the requirement of at least a minimal level of civic spirit. Neither a polis (a city state, a community) would work without that nor could a larger state of law (tat de Droit, Rechtsstaat). That means the aspect of solidarity and community. Such that second level spoken of e.g. by Radbruch (see above), the one of ethics and morality supporting the first one of laws and rights need not just back and carry the first level alone but first and foremost a feeling and reality of
499

See: Nestle, op. cit., p. 381 seq. citing Democritus, p. 385

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concernedness and solidarity. That is not the same as justice. But a working principle of justice requires that. If we look at present goings on in the world there are spaces, perfectly defined as nation states with names, flags, borders, a territory and authorities/institutions and seemingly with a people. Yet at a closer look there is not a (one) people but there are several, e.g. three, maybe culturally, economically and e.g. ethically and religiously separated, not wanting to have to do with each other. The typical consequence is that such a state and its authorities do not work or not effectively and Law and Justice remaining in a very precarious state. If we come back to the idea of spheres of justice (see above) a principle of degree or mean appears. A state may be able to bear spheres of loyalty or solidarity to a certain extent, but not a partition of the respect for Law and Justice. Yet even when there are spheres of solidarity, which is certainly always a reality, one may think of the example of wider families, lines, cleavages, fractures may appear which prove the existence of spaces not covered by any solidarity and problems with the principle of Justice being the immediate consequence. Just on the side, as that is a matter of constitutional law, as soon as legal entities (states) grew bigger than one family or several related families it has been one of the first duties of states and governments ever since to see that this cleavages do not happen, as such a fair degree of solidarity does not grow automatically. That may not necessarily be done clinically just by installing or rearranging institutions. It may take more. 24) Justice and Utilitarianism? Utility, utilitarian refers to another aspect. It is not comparable to the concept of Justice. Justice is certainly useful. But it is not just useful it is of an existential necessity and one of mans highest ideals, what is of another order. That is however not denied e.g. by Mill, who had, as said above, tried to popularize the principle of Justice by starting from the term Utilitarism. He defended the principle of equality and social justice as did the champion of utilitarianism, Bentham, before him. 500 But the qualification useful like e.g. helpful, beneficial or good is far too general to serve as a significant element for an explanation of the specific principle of Justice. Utilitarianism appears as a hypothetically maximizing slogan. Its short form the greatest good for the
See: Shackleton R., The Greatest Happiness of the Greatest Number: The history of Benthams phrase, In: Bentham Jeremy, Moral, Political and Legal Philosophy, vol. I, ed. Postema G.J., Dartmouth/Ashgate, Aldershot 2002, p. 29 seq., 34/35. referring to Hutcheson Mill J.S., Utilitarianism, ed. Crips R., Oxford Philosophical Texts, Oxford 1998, both going back to Hume: to the history of the utilitarian principle in law and for a thorough critique, see: Zippelius, Rechtsphilosophie, op. cit., 4th ed., para. 14, p. 103-106; and Russell Bertrand, A History of Western Philosophy, Allen & Unwin, London 1945, chapter 26 on Utilitarism
500

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greatest number can obviously provide results from 0% to 100% (if e.g. 3 of 1000 do well one can say, that this is the greatest (possible) happiness of the greatest (possible) number, as in the case when e.g. 998 out of 1000 do well). It is thus not just useless as an ordering or coordinating principle but it is an invitation to abuse. Such can obviously not have much to do with the nature of Law and Justice. To some extent it seems also to have to do with a confusion of means and end. Peace and security are an undisputed purpose of Justice ever since. The search for even more i.e. for psychological maximum happiness remains still in the realm of a purpose. Justice on the other hand refers mainly to that functional or operational principle destined to lead to such peace and security. It refers to the means with regard to that end. When it was said above that Justice is also an end that meant that it can refer also to its purpose. Yet It appears thus as a means with a rather humble purpose (peace, security) compared to a greatest happiness principle.501 Of e.g. the notions peace and security however it cannot be spoken of as operational or functional principle, of the one of utility either. 25) Justice and the principle of Due-process of the law, i.e. Impartiality, Openness, Objectivity, Truth and Responsibility With this aspect we happen to be at the core of Justice as a Principle of Action or of Process. In practice the concept of due process of the law covers these formal or procedural aspects. It refers to the aspects that have to be considered when applying the law, i.e. in the course of the administration of Justice, but already by conceiving it as a principle. Justice requires an impartial, an objective, a rational and an open approach. It becomes particularly clear once several persons are involved, that justice requires objectivity. That implies Impartiality. As it has to be realized, seen and understood by others it has to be Rational and Consistent, i.e. explainable and explained, which implies Openness, Truth and Responsibility. The well know impersonation of the young lady Justitia (the Roman goddess of Justice), e.g. as a figure on a fountain, blindfold with a balance in her hands, provides a perfect symbol of two of these aspects of impartiality. This aspect appears in practice most often under the principle of Due Process of Law, i.e. in the field of procedural law, yet these considerations apply to any application of Justice and the Law. The matter of explication just mentioned refers predominantly to the administration of Justice, i.e. to decisions by official authorities, courts, i.e. to institutions. We shall come back to that below under the titles of rule of law and judicial review and statement of reasons.
501

as J. Bentham seems to have called it. See: Mill, Utilitarianism, op. cit., p.3

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26) Justice and Truth It is to come back to the important concept of truth mentioned again just here before and which has been dealt with on several occasions above, not least under the title of language, of justice as a personal order and of Kants ban on lies. Therein Kant discussed in fact a comment by Benjamin Constant who had established a direct relationship between law and justice, duty and truth. Constant considered it a duty to tell the truth and the concept of duty to be inseparable from the concept of law and justice. He further said, where there are no rights there are no duties. He thus concluded that there is only a duty to tell the truth to someone who is entitled to it. Kant refuted that. It has been seen above that he concluded that from reason (Vernunft) by citing a special case i.e. the necessity of the principle of the consideration of contracts (pacta sunt servanda) and a general case, the categorical imperative, i.e. the peaceful functioning of a society. He thus called truth to be an unconditional duty, which applies everywhere (eine unbedingte Pflicht, die in allen Verhltnissen gilt). The principle of truth is necessarily, i.e. functionally, at the basis of a functioning legal order as has been seen above. There is an exception to this principle, e.g. in penal codes under many a legal constitution, namely that no witness has to make a testimony, which causes harm to himself. The latter conclusion seems to hold not only due to these convincing arguments and the further fact of the practical impossibility to evaluate in each instance such a theoretical entitlement, but also because Constant seems to have made his conclusion of principle based on a mere exception to the rule, namely that nobody were entitled to a truth that were causing harm. Yet he did not consider the harm done to individual and public peace if truth were held back. There are cases, well known in social life, where it is inappropriate to say things under the title of truth, which are not necessary or of minor importance but cause harm, e.g. emotional, mental one, of greater importance. These are obviously mere exceptions to the rule unqualified to change it. 502 The other decisive argument for the general validity of the principle of truth under the consideration of law and justice is an eminently practical one. It is the importance of the bona fide principle (Treu und Glauben), i.e. the duty to honesty and truth in todays private and public law and public international law (see also below) and particularly in contract law and moreover the fact that truth belongs to the most important objects of legal protection, one may e.g. think of the treatment of fraud, forgery etc. under penal law.

502

See: Kant, ber ein vermeintes Recht , op. cit. P. 637 643

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Thus there seems to be a functional relationship between the principle of justice and that of truth or even an overlapping of the two concepts to a considerable extent. The establishment of Justice requires the general validity of the principle of truth. If Justice is an end, truth appears as a means. But it may also appear as an end in itself. 27) Synonyms of the notion of Justice Fairness and Equity are both synonymous to Justice. That shows already from their ordinary meanings: fair for beautiful, free from blemish, from injustice, equitable, referring to an equal chance of success, equity in the conditions afforded to a player, honest, just, besides of other meanings like light or clean etc.503; equity for the quality of being equal or fair, fair and right besides e.g. the special meanings in the English legal system. 504 They overlap each other and with the term justice. (a) Fairness Fairness approaches the same idea as Justice by using a different word, yet one with more or less the same meaning, as just mentioned. It shows up already in translations of the Indian texts about dharma and of those of Aristotle (see above). The word Justice has been in formal and official use for a long time. The word fairness appears as more colloquial. As said it adds nothing essential. (b) Equity Equity reminds Ulpians third sentence ius est ars aequi et boni. Bonum, the good, we have considered above. For equity from aequi there cannot be found another explanation than just related to equal. Even in the closest languages to English, German and French, the translation is Gerechtigkeit (i.e. Justice)505 and Justice. It is conceived though as more general than justice in Aristotles famous concept of construction and completion of a legal order, mentioned above. Aristotle called them identical, but considered equity to be of a higher order. 506 Radbruch calls equity the Justice of the specific, singular case
The Oxford English Dictionary, 2nd ed. Oxford 1989, vol. V, on fair see e.g. The Oxford English Dictionary, vol. V on equity 505 There is a second German translation possible, which is Billigkeit, referring to suitable, fitting and as in the saying recht und billig, but by that one is again thrown back to where one started. See: Kluge, Etymologisches Woerterbuch der deutschen Sprache, 24th ed. Berlin 2002 506 Aristotle, Nicomachean Ethics, book V.14.2
504 503

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(Einzelfallgerechtigkeit, see above). But the term equal appears as more concrete than the term just. In the form of equity it seems to go beyond the idea of equal but remains within the comparisons with justice, fair and ethical.507 Equity was destined to mitigate the rigor of the law in the English equity jurisprudence508 such as to get closer to perfect Justice by taking into account the intricacies of each singular case. That appears as a case of a double approach as the latter is just that what is sought and due under the application of the principle of Justice ever since. Its use in international law is not without problems either. One author said of equity: Its existence, therefore, as a separate and distinct source of law is at best highly controversial.509 It has been seen that Justice, Truth and Freedom are concepts directly born out of the concept of Life itself. As said the additional concept of Equity got a special role by Aristotle in the case a legal rule would not appear as providing a just result. Equity with the meaning observant of custom or rule would then jump in (see above). English law for its own particular reasons has, as said, taken that up and created a long separate legal tradition based on that. Observant to custom and rule can not add very much today, as the legal rule is the rule and as it usually includes the consideration of tradition i.e. custom. It is again Kant who supplied hereto an original consideration. He deals with the aspect of ambiguous law and mentions two cases hereunder a) equity and b) emergency law, the first being a law without enforcement (ein Recht ohne Zwang) and the second an enforcement without law (ein Zwang ohne Recht). He knew that equity was usually invoked, when the application of objective (strict) law seemed hard. Then also the sentence summum jus summa injuria (highest law highest injustice) got mentioned. Kant sees an equivocation, an ambiguity and confusion between a subjective approach to justice and an objective one and excludes an objective solution in that case. Thats because the subjective claim would belong to a forum poli a court of conscience, while an objective claim belonged to a forum soli, i.e. a regular court of justice. Yet Kant was living under an older system and may have thought mostly of cases against the Crown, i.e. the State, were that one, e.g. the administration, could (in the past at least) in some cases provide more or require less than what was legally due and that on the basis of equity.510 A similar aspect shows up in the case of mercy. It follows from the nature of Justice as a means of coordination that it requires to consider in each case all essential aspects while all unessential aspects are to be left unconsidered. Justice is just that very concept which requires rendering perfect Justice by taking into account precisely these intricacies of each
507 508

Martin, Jill, E., Modern Equity, 15ed., London 1997, p.3 Keeton, George W., Sheridan L.A., Equity, 3ed. , London 1987, p. 8 509 M.N. Shaw, International Law, 4th ed, Cambridge University Press, Cambridge 1997, 84 510 See to that Metaphysik der Sitten, op. cit. p. 71/72, 74

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singular case and certainly not those which are not essential to, or which have nothing to do, with a case in point. Thus there cannot be a double standard. That does not change the fact that in rare cases contextual considerations may enter the picture, as e.g. in cases of mercy, if the authority deciding the case has the required competence. (c) Modern use of the notion of Law It might be that we happen today to be in a time of transition when a further change of the word referring to the principle (eidos) of Justice takes place according to the pattern shown above: Rita-Dharma-Nomos-Logos-Justice. If we take the use of the term legal in todays colloquial parlance, it seems often to go beyond any relationship with a clause in the law and to mean just that which is right or just. Such it might be that the word Law is going to take over sooner or later also the meaning specific to Justice. (d) Comment The fact that the terms justice from just, fairness from fair and equity from equal have been circling around some common goal for centuries proves again the existence of something, not matched exactly by these words yet well approached by them. We call that persistently sought after thing, a principle, an event, a state, a condition, or a general idea, an eidos. If these millions of parties and their lawyers have not been fighting mirages in negotiations and law suits during the past centuries, then it (Justice) is obviously something though abstract but real, as found above, a target, a necessary ideal. 28) Relative Aspects of Justice It has always been said, that laws and the feelings about Justice can be different in different places and times. Yet it could also be shown that this is restricted to relatively accessory meanings of Justice and that it does not apply to the main concept, as the nature of the principle of Justice makes clear. There is however another aspect of relativity, which has been provided by cognitive sciences. Piaget e.g. reported that children in the age group of 6-8 years markedly associate that which is just to that which is allowed, i.e. to authoritative commands, while elder children, i.e. from 10-12, start clearly to refer

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for that to the general idea of equality/inequality. 511 This seems to show the reality of a development in the idea of Justice according to a personal development. It would then be another source for different conceptions in different places. It shows further that the idea of relativity might have much to do with the subjective and personal aspect of the principle of Justice.512 29) Justice, the Contrary of Arbitrariness (Willkr) Justice is the contrary of arbitrariness. It is like a defining approach of arbitrariness, to state: It is arbitrary, e.g. in decision-making, to consider aspects which are not essential for the decision in question and it is arbitrary not to consider aspects that are essential for the decision in question (see above). Turned around one can say about Justice: It belongs to Justice to consider that, which is essential for a decision in question and not to consider that which is not essential for a decision in question, i.e. in the light of the ones concerned, of the community, the public good, the specific nature of the matter, the result to be achieved and the various purposes, above all social order, peace and security. That aspect has naturally directly to do with the personal aspect of Justice, the relative aspect of Justice (see above) and with the sentimental aspect of Justice and enemies of Justice (see below). One does, except in cases of arbitrariness (Willkr), not much talk about all the elements which are unfavorable for a just approach. They are abundant. Yet egoism has substantiated above, greed, arrogance, envy and jealousy are to be mentioned and the famous institutional imperative too (see also above), which all tend to limit the impartial circumspection required for a just and for a moral approach. Statements are rare, where it is dared to address that. So one can find it said that envy tends strongly to hamper Justice, e.g. among professional colleagues and that it were difficult to accept them, in particular when they happen to be better. Then it would practically be excluded to accept them. Yet under the aspect of Justice it is just that which is required.513 Therefore it turns out here, that Justice, in particular personal morality and justice, is a rather demanding concept, requiring the ability to learn and to apply that, i.e. to act according to it, thus requiring a trained, a sporty, even a rather athletic
511

Piaget Jean, Moral Judgment: Children invent the Social Contract (1932), contained in: The Essential Piaget, ed. Gruber/Voneche, New York 1977, p. 187 512 It is interesting to see that this sequence from just as command to just as equality has been considered to be comparable to the difference between a religious approach versus a moral approach, see: V. Gerhardt and also F. Oser in: Ethik ohne Religion, Wichern Verlag, Berlin 1996, Protokoll der Podiumsdiskussion I, p. 71,72 513 See e.g. W. Pannenberg in: Ethik ohne Religion?, op. cit. p.102

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mental constitution. Yet just that is due as has been seen since at least 2500 years of human development. No humanity, no justice, no lasting social peace, seems to be possible without that. That belongs to the qualified psychological human preconditions under the aspects of Justice and Law (see also below). 30) On Enemies of Justice Why only speaking about Justice in the affirmative if the fact is uncontested that in private and in public life it is all too often not observed? In dealing with arbitrariness above, some well known general motives for injustice have been mentioned. It may happen to everyone to be blinded by its own interests and thus not acting according to Justice. Yet that cant be excused, although need and scarcity may sometimes be part of a reason for that but also egoism, arrogance, feelings of revenge or the inability to find other means than lies, deception, treachery and violence, but also negligence of all kind, leading then all too often to illegal goings on. In the past the state, the government, a ruler used to be prominent targets of accusations of injustice (see e.g. the case of Antigone above). Yet such facts may in some cases also have fallen into a larger set. That refers to the rather serious fact that far too many cannot help but all the time being attracted by violence, abuse and nonsense, totally neglecting direct and indirect damages occurring. Obviously all that has to do with a lack of selfcontrol and with the negligence of the principle of self-preservation. Enemies of Justice are thus the worst enemies of Freedom. Anyway, if Justice is an everlasting project, as it has to be, precisely also in view of such facts, then the mentioned approach of education, living examples, awareness, understanding, respect and habituation, life in a community and a society and that backed by laws and if necessary by their sanctions, may be an adequate answer.

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31) The Ambit of Justice The above general rule can be specified. If justice refers to an objective situation and if several people have a view about it, it is necessary to look at the various points of view involved. These are at least: -The views of the individual/s directly concerned -The view of the individual/s indirectly concerned -The view of the public -The view in the light of the specific nature and facts of the cause concerned, including e.g. laws applying -The view in the broader light of the public cause or common welfare, i.e. the Public good -The respective evaluation of the result is part of them all.514 These views involve as Zippelius has shown the aspect of personal autonomy, i.e. the possibility and fact of an individual evaluation and judgment of each one concerned. They involve the personal conscience which participates in the Kantian sense in such an evaluation and judgment (like an inner law court515). As soon as there is a multitude of people involved there may arise an agreement of views, a so-called consensus (agreement), which has indeed an important influence on what is considered to apply in a given situation, particularly as one can speak of a public consensus. It further involves rationality in the personal conscience and in the appreciation of the nature of things and it can involve the public majority verdict. Yet the latter can be particularly unjust and tyrannical as e.g. the 20th century has shown all too clearly. It is then to be curbed by Justice (Radbruch), which requires that there are people qualified and able to apply it. These aspects go through the heads of responsible legislators, administrators and judges. It brings us back to the above considerations.

514

See also: Zippelius, Rechtsphilosophie, op. cit. p.125-127, where he stresses in that context particularly the aspects of personal autonomy, personal conscience and general consensus 515 See: Kant, Kritik der reinen Vernunft, Vorrede zur ersten Auflage (i.a. introduction to the 1st edition)

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32) Harmony We have to come back here to the term harmony in its general sense including the aspect of civic spirit or civility. It has been found above that this is an important basis of Justice (from Ancient Greece to Radbruch). In such a general sense it appears that it belongs to the purpose and nature of that which we call Justice to consider all living beings or persons involved, the ones concerned and the closer or wider public objectively and in their subjectivity in a given context and to consider all personal and general, all sentimental and all rational relationships and to coordinate them, by bringing them into the best possible harmonious order. That means that Justice concerns not only considering all essential elements but their reconciliation if possible in an ideal way or then in an optimal way in the sense of establishing a set of appropriately equalized interrelations, i.e. of right or equitable proportions. Right and equitable meaning then, correctly or optimally considering and reconciling all persons and elements involved under the given circumstances, their points of view, their interests or aspects. In short one could call that the optimal reconciliation of preconditions and interests. Sometimes such harmony may sound rather ugly, sometimes agreeable, sometimes pleasing. But it may sound ugly only if nothing else is possible. Or the other way round, if it is the best possible and still necessary result. No bias, no partiality, no arbitrary consideration is allowed. Considering only one point of view and forgetting all others is not covered by it (see e.g. also the aspect of distributive justice mentioned above). Evaluating the general interest correctly but overestimating the possibilities or capacities of the ones concerned (see above summum ius summa iniuria law too rigidly interpreted (can be) the greatest injustice or fiat justitia pereat mundus applying the law although the world might go under) is not covered either. We realize that the aspects mentioned in the above points appear here again. It is very likely that when dealing with Justice, we nearly automatically start from the fact of such a circumspect and careful appreciation. Precisely this is however not at all to be taken for granted in practice. Much to the contrary the main effort to define justice circles around the description of the endeavor necessary to arrive there. Again truth and responsibility shine up.

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The impersonation of Justitia mentioned above provides also a symbol for this reconciliation. Often it involves conflicting views and interests but also conflicting values or objects of legal protection. These have to be analyzed and evaluated against each other in the given context (Rechtsgterabwgung from Rechtsgut)516. It is Plato who had mentioned the term harmony in the context of justice and Democritos before him (see above). Plato compared it to an all including equilibrium or mean. That expresses perfectly ever since what we again have tried to show here. 33) Justice, a Sentimental Order? What would have been so well suited to be juxtaposed to the rational aspect of Justice has to be mentioned here towards the end because it refers to all the former aspects and presupposes their knowledge. a) It has been seen above that Democritus found syn-eidesis, which is conscientia, i.e. conscience which means literally together knowing. By that he showed that it acted like at least a second mind. This is obviously so. But Justice has become an intellectual concept, even one which requires argumentation and reasoning. It is thus of a different order than conscience. Yet nobody could deny that our judgment is often composite, including a more general evaluation like coming from conscience and a so-called rational one, built of several well addressed mental building blocks. Experienced attorneys become quite often aware of that fact. When they get a complex case, matters are often not that clear and answers far from immediately clear. So it happens that they first make a step back and look at the matter quite generally thus maybe getting a certain direction of thinking by that. This being a preliminary approach, it can turn out that the careful analysis leads into another direction. Still it can also be that a carefully built body of reasoning may seem to hold intellectually but still not feel quite convincing. Then one of the intellectual elements may have been somehow misplaced etc. It shows that at least two aspects come into play, the reasonable one and a contemplative one. It has to do with the famous fact that a judgment requires to hold analytically and synthetically. Only if one succeeds to match both aspects one can be satisfied. So there is indeed an additional contemplative element or one called of feeling or one of another order of reasons.
516

Tongue in cheek wed like to add here that somebody seems to have suggested the shorter term Gterabwgung (weighting of goods). That reminds the Gterbahnhof (the freight depot or goods station).

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b) Such an approach is not at all alien to the consideration e.g. of very practical and daily used legal principles, such as proportionality either. It is typical for the evaluation of all elements, yet they have to be objectively ascertainable. c) There has been mentioned above another order of reasons, which are called of mood or feeling or of a natural act. That is the ones mentioned by Mencius and taken up e.g. by Hutcheson, Shaftsbury and Rousseau. It was explained by Mencius example of the little child being about to fall into a well and a grown up man seeing that. One concluded that this man were moved, would help or at least care and called this an example for a moral or just sentiment as a precondition to moral or just behavior. That approach seems to meet in fact what has just been said about syn-eidesis. d) Under another aspect it has been found that the decisions to act justly were based not on reason but on intuition (G. H. Moore) and that they were not rational but emotional (Ch. Stevenson).517 That happens certainly often to be the case in private life. No person asks before each action: What is the nature of the concept of Justice? One does not have to because matters are or seem sufficiently clear. But there are many cases when one thinks rationally about what the right course of action would be. And there are many specific cases where one has to ask that question. It thus cant be denied that man has since at least 2500 years asked for rational approaches to Justice and found some indeed operational ones, as cited here, and that Democritus has just shown that such an approach of a general mental order can back the rational reasoning, which in other clearer cases may carry alone. The rational approach is most often required when people are entitled to verifiable decisions. What has been found there has naturally also entered into mans conscience and feelings. e) The sentimental aspect has an even wider importance. Yet here the feeling is not only personal but also general and it becomes rationalized. That aspect has been touched upon already above, under the title from a personal to an interpersonal mental state for example. aa) It has been seen that the General Rule of Justice is a culture, a way of life and a mentality and that this inspires the term of civility. It was e.g. Radbruch (and already Aristotle, see above), who had insisted that a positive legal order requires
517

See the references by W. Pannenberg, op. cit., p. 90

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a foundation in the minds of the people concerned, a support or a conviction backing them. It is the result of, and has to correspond to the mind-set of the people concerned. That concerns their mentality. Only when that one values Justice, a just approach may become a general reality. There may be deviations but neither too sharp ones, nor lasting ones. This has also directly to do with the approach of laws to tradition, involving habits and convictions. This is seen clearly from what is dealt with below under the title of Ethics. bb) The concept of having Justice originating from a Highest Good - Logos The Divine is naturally of a sentimental order and immediately involves feelings. Heraclitus would probably have added a rational reasoning as had Plato with his theory of eidos (see above). The same applies also to what was said above under the title an esthetic order or a personal order. cc) The concept of Dharma starts from the conception of Cosmos, of an ordered Universe including the world of man. That involves obviously a sentimental but also a rational aspect (see above). dd) The constitutive aspect of community or society follows from the above if it were not already a functional part of the concept of Justice as a concept of coordination as such. That means a coordination of individuals in a group, a community or society (see above). That is even pronounced ever since e.g. in the Hebrew meaning of the word Justice, as behavior appropriate to the community. Again the meaning and importance of this aspect are highlighted below under the title of Ethics. The terms consensus and agreement shall be found below under the title of laws. These are rational concepts, yet as an event of and in a community they inspire immediately an atmosphere and a feeling. ee) When it is held that the development of Justice requires an education of the minds, furthermore a rational explanation but also living examples and a whole atmosphere in a society, the feeling of each individual to have its place in a community (somehow similar but not necessarily restrictively conceived as sometimes in citations of the old Chinese concept jun-jun, chen-chen, fu-fu, zi-zi or Plato, see above), the confidence into such behavior being common, then the terms habituation and feeling, spirit and conviction and tradition go naturally with it.

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ff) When this desirable and required state is achieved the aspect of feeling becomes objective and thus to be of another order. It is feelings which have an objective element. When one speaks of just feelings in such a context they can immediately be rationally explained, i.e. rationalized. Thus we come back to what was said above that mental and practical facts of just behavior involve at least an element of feeling, spirit or conviction which could also be called ethical, moral, or of conscience and a rational, objective element. See also below under the title of law or virtue, where it is found that both are required for an operational concept of Justice. gg) If smaller societies, from where concepts of Justice and legal concepts originated, are getting wider, including in certain respects the whole world, the aspect of Justice has then to be based on world-wide common feelings and convictions, finally a world-wide community and a corresponding consensus or agreement. That naturally happened with international public law. Yet it has for a long time remained a common conviction within learned international circles. It is with wider internationalization and globalization that its concepts will become more familiar to a wider world such that one shall be able to speak of world-wide legal convictions. 34) Justice the Source of Law In international public law equity is called a source of law. 518 It thus is considered of basic relevance for a legal order, like general principles of law, which govern more specific legal rules. In fact equity is considered to be a general legal principle. The principle of Justice has turned out to be the fundamental principle ruling them. While the real source of law is Life, Justice derived from it like Truth and Freedom, is more specific. Justice is the basic source or reference of all norms, not just legal but also ethical and moral. That will show again below.

518

See: Art. 38 of the Statute of the International Court of Justice (ICJ)

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35) Legitimacy of Laws? Legitimacy of Justice? Due to the above there is no reason to open a question concerning the legitimacy of laws, nor of Justice. Justice is as elementary or fundamental as the reality and concepts of truth, freedom and beauty requiring no further justification. There would be only one, if required - Life itself (see above). Laws have to be based on Justice and they have to pursue the target/ideal of Justice as seen, otherwise they are illegitimate, null and void (see also below).519 The corresponding empirical reality and criteria existing and developed over the past (roughly 2500 years) have been mentioned. The scientific principles relevant for the establishment of statements about these matters have been mentioned too, e.g. referring to J. Newton and G. F. Leibniz (see above). Justice, Law, Ethics and Morals originate from and deal with living beings and matter. Their regulation or definition or the judgment of the necessity of such matters may have to take that into account. One could also refer to the social contract (Plato) or to self-preservation (Plato, Kant) as to complete the above thought. Some other moral, consensual and authoritative aspects of lawmaking shall be further dealt with below. Yet there has been asked the question if the use of power by the application of legal sanctions can be considered ethical or even just.520 It did appear above that a law without sanctions risks to remain precarious. Based e.g. on the concept of the social contract it may certainly be asked if the adherence to such a contract necessarily involves sanctions and the use of power. One could also consider a veto power of anyone concerned as in cases of international public law among states. The aspect of functionality and practicability however would immediately appear. But there is also the growing awareness of the concept of proportionality. 521 Compared to the Middle-Ages the legitimacy of the enforcement of legal rules by the use of raw power has been greatly reduced. In further stages the restriction of personal liberty, such as the incarceration in case of financial dept has also been banned. In circumstances of prosperity there is a tendency to use fines which are considered a milder form of sanction compared to harder means. If the purpose of a state under the aspect of civilization is prosperity in justice, as held here, it appears that the degree of mildness associated with the notion of civility, shows the connection between the three notions civility, prosperity and the degree or concept of Justice or vice versa. That may matter when one tries to compare legal realities in different places.
519

This cannot be used as an easy excuse not to obey the law because what may be a personal feeling, requires then an objective reasoning. 520 E.g. by Walter Benjamin and later by Hffe (see above) 521 That refers to the general aspect of the principle of proportionality not to the special or finer one which applies in principle in each singular case of private or public law.

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And there may be another approach leading to the question of legitimacy. Why is anyone legitimated to make laws and state sanctions forbidding me to drive around with my car as fast as I can, to forge money, to request a licence for buying a gun etc., or forbidding me to behave in all respects as I please? Plato had said that the weak ones were naturally most interested in the coming about of a social contract, establishing a legal order and a state. Such they would get laws and rights and Justice for their own preservation (see above). But there may be people who do not feel weak but strong, clever and shrewd and ready to take on whatever challenge. So they might claim to establish their proper exclusive state or sphere of Justice and let others care for themselves. Yet it becomes immediately obvious that one enters by such considerations into rather well known territories, as the question of products, services and trade but also culture etc. arises and the well known reality of tangible restrictions by confined spaces becomes a subject. So whatever, there is neither empirically nor theoretically much alternative to the mentioned considerations of e.g. Plato, Aristotle, Kant but also Cicero, Grotius and Radbruch. In particular there is no clinic, automatic or easy approach to the conditions even of a minimal state but certainly not to Law and Justice in the full sense of the word.

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VI Axioms of Law and Justice

Since the subject of Law and Justice has now been considered under a number of aspects, it is to come back to Radbruch because he had said 1) that laws are normative statements, which cannot be verified logically as true or as false, and 2) that they should be coherent with highest normative statements, i.e. axioms. On the basis of what was found above we would like to challenge his first conclusion but we have to confirm his second one. A) The Axioms of Law and Justice as such 1) In the light of the clear nature of Justice there is a logical aspect to be considered. The establishment of the coordinative nature of Justice is a functional statement and it can thus appear as a logical rule. Therefore: the statement of the coordinative nature of Justice appears itself as the first Legal Axiom. A norm that does not fulfill this criterion is not only unjust and illegal but also logically false. An act that does e.g. more harm than good appears in the light of the principle as logically false and at the same time as unjust and illegal. 2) Normative statements, i.e. laws, should be coherent with highest normative statements, i.e. axioms. That ought became an is i.e. a fact. As it happened the preceding inquiry has shown that the above and at least three further principles emerged as indispensable for the principle of Justice: Life, Truth and Responsibility. They are also axioms. They can not be dissociated from a principle of Justice. They fashion its nature and shape. a) Life originates Justice and it is also its end. It is the highest and absolute reference of Justice and as a normative value the highest legal axiom, thus even higher than Justice itself. Its protection and observance is due among men and certainly by their state.

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b) Truth has often been mentioned among the highest Goods. It is of a comparable nature to Justice as it immediately tends to neutralize conflicts and lead to peace. It reveals itself as the most important functional aspect referring to the application of Justice both as a criterion of the personal approach to it and of the public institutional one, but furthermore as a core value of legal protection. In most cases its protection and observance is due among men and certainly by their state. c) Responsibility refers also to the aspect of action of the principle of Justice. It is thus another major functional aspect referring to the application of Justice both as a criterion of the personal approach to Justice and of the public institutional one, but furthermore as a value of legal protection (e.g. not least in matters of autonomy, freedom or competence). In most cases its protection and observance is due among men and certainly by their state. 3) Comment We call the above four principles Legal Axioms, i.e. of the first order, beyond convention, of immediate relevance, above the so-called constitutional rank, but fittingly mentioned there. They are due among men and certainly by their state. B) Universal Legal Concepts From the above legal axioms follow several other undisputed and well tested concepts, nationally and internationally. That concerns the concept of Basic Individual Rights (also called Human Rights or Universal Rights) and those concepts, which happen to be called General Principles of Law referring to main cases of interaction between people and in relation to the official authorities, i.e. administration or government. The latter statement usually has alarm bells ringing, as the accent on individual rights has all too often been abused, particularly in the younger past in the socalled West, for promoting rather peculiar agendas and habits and sometimes rather extreme concepts. That is not the intention here but the clear concept of rights and duties of each individual as the principle of Justice requires, i.e. in regard of a functioning society.

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1) Basic Individual Rights Universal Human Rights It is now about 4000 years since that general legal rules were invented (see above). Under the principle of Justice and the aspect of such rules a basic set of individual rights, freedoms or liberties are of obvious necessity. 522 At least since Vitoria and Suarez, Grotius and Hobbes, i.e. during the 17th century, their general concept started to become shaped and they became adopted as laws from the 18th century onwards (see above). Furthermore they were then understood. However as e.g. the Western World is about to learn, this is never to be taken as granted.523 Justice refers to each individual life. Legal rules tend to restrict the exercise of Life such as to safeguard a necessary core domain of Life. Therefore this domain of freedom wants to be defined. Thats why one talks of freedoms or of rights. A legal Constitution that does not explicitly contain a guarantee of those appears as not complete. These rights are called universal and inalienable, i.e. not negotiable. Such their validity is also considered to be above the law and above a constitution. The term freedom or liberty (French libert for freedom) can be compared to a space wherein a person is free to move or to act. The aspect of coordination in the principle of Justice immediately exemplifies that. Freedom of thought, freedom of speech, both address that. It can or cannot be used, depending on the one who is entitled to it. Right has a more actual meaning. It refers also to that space of freedom but it is closer to its use. It means also the actual potential to use that space, to fill it out. While one talks about the general idea to speak freely, one uses the word freedom. While one talks of the actual use of this freedom, e.g. when one protests: You cannot say that publicly and the other answers: It is my right to do so. Then the word right appears. It has a relationship to the word force and certainly to claiming that freedom. He could also have said: I have that freedom, but the insistence on a right appears as a stronger accent on ones legal position, i.e. as to claim, to enforce it. As often in
522

It is not the place here to let follow a history of the development of these legal concepts. We have seen above that already in classic Greece punishment started to require a trial. Later, since the famous Magna Charta, 1215, and e.g. the Bill of Rights 1689, in England, detention required a legitimate authority. That lead over the Declaration of Rights of Virginia 1776 and of the amended US constitution 1787/1791, to the Declaration des Droits de lHomme et du Citoyen of 1789 in France to the modern codifications of Basic Rights, as e.g. the UN declaration of 1948 or the European declaration of 1950, and as they can be found in the Constitution of the US or of France and related constitutions in other countries. 523 Still one is rather surprised to read e.g. in: O. Hffes, Gerechtigkeit, eine philosophische Einfhrung, Beck, Mnchen, 2001, p. 73, that both Christian Churches, the older and the younger branch, have in the past been much reserved with regard to a codification of human rights

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law the differentiations are gradual. The words used suggest clear delimitations yet there often tend to be no clear lines of demarcation but zones, sometimes fluid ones. Right is the opposite of duty both clearly addressing specific legal positions. A right to Life makes only sense for something or somebody that does or can live.524 Such, a right refers as said to a potential to be executed. It can be one in the future. The protection of such rights means that a society constituted in a state guarantees them by general legal rules, i.e. in a constitution or a law. In an imaginary state of nature freedom can be thought to be total and unlimited.525 Yet as man is a tribal being, there might always have been tribal limitations based on raw and ready enforcement. General pre-established legal rules are just there to optimize that matter, i.e. to grant as much freedom as possible, by adopting the least amount of limitations.526 But one thing is clear. Each individual person is by its very existence entitled to life, with all that this involves. Who, and on what grounds, could deny that? As said above, under the rule of law that has immediately the following consequences: a) Justice is about each individual life, obviously man and women. Such each individual life is protected, starting with the fertilized egg to the undisputable death, and with regard to the entire physical and mental integrity, as so-called personal freedom, including privacy, and with regard to the freedom of movement in general and e.g. to leave a country. Cases where that freedom is in question as in matters of accusations and detention under criminal law, special rights to a specified accusation, protection, an attorney, a translator, time limits etc. are concerned, for which it is referred to the mentioned well-known catalogues of human rights. b) The right to live refers to mans whole existence. As man is a being of metabolism, it follows from the above, that the protection to eat and to drink, to be active as to secure its existence and to rest has to be guaranteed. Furthermore the freedom of this activity has to be guaranteed.
524

Savigny e.g. compared right to power in a territory and referred to it as power to be synonymous to privilege. See: Savigny, Friedrich Carl von, System of the Modern Roman Law, Translation by William Holloway, Madras 1867, p. 6 525 May be there is a tradeoff, so that unlimited freedom can for a being like man be a total loss of freedom. 526 Therefore Hegel could speak of the state as the actuality of the ethical idea and to add, because that state is the actuality of concrete freedom. See: Wood, Allen W., Hegels Ethics, in: The Cambridge Companion to Hegel, Cambridge University Press, 1993, 229 referring to Hegels Philosophy of Law, & 257 260. It could be that that might be easier understood if one replaces ethical by legal.

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There shall be added here a consideration which refers to these basic rights but belongs to an actual case in constitutional law. It shall be mentioned as an exemplary type of question. If a society organizes itself in a state, living e.g. as a people on the own territory, it is self-evident that each individuals existence is concerned. There is then no such thing as: There will always be rich people and poor ones, e.g. those starving to death or there are only 14% on or below the poverty line. Such things are ignorant mutterings of crassly incompetent and irresponsible persons obviously not aware that the very fact of a common constitution makes, that everyone of that same people becomes immediately concerned. To what extent, one might then ask. Equality is always a first reference, proportionality another. That implies a productive activity or e.g. an employment. Yet the concept of a jungle is the contrary of civility.527 c) As man is an intellectual being it follows from the above also the protection of his physical and mental dignity and of the spiritual and intellectual freedom, i.e. the freedom of thought and of ordinary talk, i.e. to receive and to convey information and the safety and privacy of communications of such information.528 e) These are the absolutely necessary basic rights under the principle of Justice. They can be found more specified and multiplied in modern catalogues of basic rights. It belongs to each legitimate Legislator to add those examples of basic rights, which can be reasonably granted. Yet there is a danger. If vested interests and vocal minorities subvert a government or a parliament it happens then what is happening today in legislation in general. They replicate themselves in the law, i.e. they write into the constitution and the law whatever they, the particular interests, do and want, not caring much for the common good or being naturally convinced that what is good for them has to be good for all.529 That happens to be the eternal problem of government since the night of times. It requires indeed a real government. f) Some principles like e.g. equality or due process, which are often mentioned under the title of basic rights, are here to be found under the title of general principle of law, because they are often to be seen in an institutional context.

527

If not a piece of land for farming or a space for hunting according to the place and circumstances involved. 528 See to all that e.g. Sieghart Paul, The lawful Rights of Mankind, Oxford 1985, 107 seq. 529 See to that also Plato, Politeia, 488b 489a. A society that prides itself to see for a change in government, e.g. between one buccaneer and one privateer requires not much comment.

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g) Effect on Third Parties (Drittwirkung) These rights have been developed against authorities, against the state, reminding Antigone (see also below). Thus they are usually seen in this context alone. But as it happens it is out of adversity that general legal ideas were born and shaped, referring to the principal object of legal protection, i.e. the individual man. It could have been otherwise. Yet despite that specific way of development many concepts thus shaped prove to be of rather general importance under the aspect or Law and Justice. Some of them are not only due by the state towards the individual but very well also among individuals. 2) General Legal Principles The concept of General Principles of Law recognized by Civilized Nations stems from international law. They are recognized as one of the sources of international law in Art. 38 (1), (c) of the Statute of the International Court of Justice (ICJ). The other sources are conventions and international custom. Also here we found traces of their development already e.g. in Grotius and Hobbes (see above). The term is used here precisely in the above sense, i.e. referring to General Legal Principles which are recognized by civilized nations. They are held indispensable for the well-functioning of legal relations in organized societies.530 That means that they can be found in the national legal order of such nations, either explicit in statutory legal clauses or established by the practice of the courts. Here are mentioned the most obvious of them. There are neither all mentioned which can be found in international or national law, nor can all those mentioned be found in international and all national laws. Jet those mentioned are of undisputable importance under the aspect of Justice. They are indeed more general than specific concrete legal clauses. They are also more respected as hardly any of these rules encounters protest or criticism. They have proven to stand the test of time.531 Many of them grew out of custom.

Mosler, Hermann, General Principles of Law in: Encyclopedia of Public International Law, Amsterdam 1995, vol. 2, p. 512 531 Brownlie Ian, Principles of Public International Law, 4th ed. Oxford, Clarendon, 1990, p15seq.; Mosler, just cited, 516

530

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a) Institutional aa) The Rule of Law / Legality If there are general legal rules and, if a society uses that instrument to organize its state and to set guidelines regarding its actions, then the principle of the Rule of Law has to be the first general legal principle of its legal order. Today there is often spoken of the rule by law. 532 That points out, that somebody has to apply these general rules, i.e. the laws. That is the government. It might be headed by a highest officer applying the law and foremost guaranteeing and controlling its application. But he is not above the Law and if he is conceived to be, he is not above Justice because he has to guarantee it. He does not act for himself. He acts in the interest of the/his society, i.e. its common good. The understanding of that may be illustrated again by that famous admonition of a ruler to one of his executives: You are an officer of the crown as I am.533 The legal axioms apply under any circumstances and the general concepts of law at least in a state of civility to anybody. Such the first and foremost meaning of the principle of Rule of Law is legality of all actions of the state but also of any member of the society concerned, in its actions, i.e. their respecting of and their sticking to the law. bb) Judicial Review Early on the principle of the Rule of Law was associated with that concerning Legal Review. If the law is supposed to dominate public and private actions, these and its actors became accountable. They are subject to control. That is in fact an even older institution than that of the Rule of Law as it had been widely practiced already in ancient and medieval times, probably by applying general ideas of justice.534 Today legal rules serve as a basis for that. Furthermore it
532

See e.g. Asian Discourses of the Rule of Law, ed. R. Peerenboom, London/New York, 2004. It shall not be discussed here that the old Son of Heaven-theory for the top government function may have a link to that. Furthermore this principle happens today quite often to be put into perspective as officeholders appear as not to understand the law or to apply it properly. So the impression might emerge that they might use the law for their parties or their proper ends. 533 Vous estes bien officier de la couronne comme moi. , Louis XI of France, 15th (the crown having been the symbol of a united society, the subject of the common good, of its sovereignty, never a mere ornament) 534 For the European context it is referred here to Alfred, an English King, a contemporary of Charlemagne, one of whos main activity was to travel from tribunal to tribunal as to check the

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emerges today as a general impression that a two-step control, i.e. not only by one body of review, but additionally by another higher one, happens to be deemed to be due under the aspect of Justice. cc) Recorded and reasoned decision-making It is obvious that such a control by judicial review requires recorded and reasoned decisions and by the ones controlled and by the supervising ones, as there has to be a clear and undisputable objective of control. Decisions by Official Authorities have to be recorded and reasoned. That concerns e.g. laws, decisions by Courts and by the Administration, judgments, regulations, orders etc. The statement of reasons is to be as clear and as brief as possible. dd) Legal certainty / the Capacity of Enforcement Thomas Hobbes famously insisted on the feature of power to be decisive for the quality of law. He went too far in that because he omitted that a society can on the basis of its agreement/consensus alone see to the applicability of a law, such avoiding enforcement. That aspect refers more to those responsible for the application of the law, than the law itself. But it is not least Radbruch, who underlined the enforceability of a law to be part of its characteristic qualities. Therefore one says e.g. That law is in force. i.e. deemed to be applied and vested with the potential to be enforced. First and foremost however the principle refers to the reliability of a legal order, i.e. that it is clear what is in force, that that is respected, and that it is predictable and uniformly (equally) applied and then also that it can be and if necessary is enforced. But see to that more below. ee) Non-retroactivity of laws, in particular in penal matters That principle has directly to do with the above. Everybody subject to the law has to know beforehand what his rights and duties are. It is the severity of punishments which make that this principle plays a more prominent role in the branch of criminal law. Yet its principle is general.

judgments and all too often to review them, and to take appropriate action; see: The Life of Alfred the Great, Penguin Classics, reedited 1995

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ff) Functional specification of public duties and competences, e.g. Separation of Powers That principle refers to the rational organization of a state and its government. Considerable beginnings were made in antiquity, e.g. in China, where the separation between the executive and judicative power were established and government departments clearly distinguished early on.535 It goes today without saying that government functions and offices have to be distinguished and regulated with regard to duties and competences as it is the custom in businesslife (job descriptions). Yet the principle has also another side. It means that the separation of functions makes that they become mutually accountable, which is usually addressed by the term checks and balances. A constitution is supposed to regulate that in the forms of the law. Its link with Justice and the rule of law is clear. Justice has to rule also within government. Only a functioning system can guarantee the rule of law. gg) Res Judicata Matter settled could be a translation. That principle refers to the finality of litigation, i.e. when a matter has been finally adjudicated upon by a competent court it may not be reopened or challenged again by the parties or their legal successors concerned. This is again a reference to Justice, to the procedural one. The judge speaks once. If one could take up matter resolved one would embark on a never ending adventure, abusing the rule of law. hh) Due Process Due Process (Rechtsstaatsprinzip, Justizfrmigkeit eines Verfahrens) means the conduct of legal proceedings according to established rules and principles for the protection of rights, including e.g. the right to a fair hearing, a public one in many cases, independence and impartiality of the judge and full and equal participation at the proceedings and the protection of that. That principle provides a whole set of special rights to a party in legal proceedings all directed at allowing the defense of ones legal position in an optimal way, as guaranteed by a civilized state under the rule of law. They are specified according to a specific constitution and/or the procedural laws concerned. The reference to Justice lies in the
535

See: The Book of History of ancient China (Shu Quing)

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defense of the individual in the specific situation of legal proceedings. It could, as said, as well be mentioned under the title of basic rights. ii) Presumption of Innocence That principle refers primarily to criminal law. Criminal proceedings are directed to the establishment of truth, not to the professions of the parties. As long as the competent judge has not stated guilty (on the basis of truth) an accused person, who may be wrongly accused, even by its own professions, is to be held and has to be treated as innocent. Rarely a well established legal principle has been more thoroughly ignored in public life than this one today as publicity and media in collaboration with willful officials tend to exploit the faintest suspicion whether true or false, whatever the judgment by the only instance competent to establish the truth in the matter has spoken. This is again a defense of the individual under the aspect of particular legal proceedings. The same as above can be added. b) Substantive aa) Equality Equality is also a basic human right but the principle reappears here, as it shows up in a more technical sense in procedural law either in legal proceedings between parties or before official authorities. It is a rather practical concept. It has been mentioned above under the titles Talion and the Golden Mean. One of its expressions is audiatur et altera pars (i.e. also the other party is to be heard) referring to the right to be heard by any party in legal proceedings. Generally its main meaning is equality before the law. It has been associated with the idea of Justice ever since. That follows easily from the above historical outline and the above mentioned two basic facts, where it refers to cases of distributive and corrective Justice according to Aristotle. He added the principle of proportionality for cases with a relative equality. It has become recognized as a universal right of man since the enlightenment and it is inscribed today in several official human rights catalogues 536 , most prominently in the United Nations Universal Declaration of Human Rights (UN Charter, 1948) and the European Convention on Human Rights and on Fundamental Freedoms (European Convention, 1950) for instance. It has also its substantive side. As each individual life and existence in society is basically of the same importance it

536

See Sieghart, cited above

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refers to one of the most basic concretizations of the principle of Justice. It plays an eminent practical role in daily administration of the law. bb) Proportionality Aristotle developed the principle when he dealt with equality. The idea was that strict equality sometimes leads to unjust solutions. It may then be mitigated by the principle of proportionality. He thus spoke of proportional equality. It has today gained a wider application. Be it in administrative law which deals with the appropriateness of the means used by an administration in the course of the execution of the law, or in criminal law referring to the means used e.g. in a case of legitimate self-defense (e.g. when a person defends itself by powerful means against an illegal invader), it is the proportionality principle which shows its universal importance. Proportional to what, may be the question in these cases? Proportional to the purpose of the law, the matter in question and the result to be achieved in the fist case, proportional to the purpose of the protection of oneself or of legitimate rights in the second, is the answer. The administration has to consider the principle while executing the law and the individual person has to observe it in his behavior and actions. Thus the principle refers to the execution or defense of ones rights be it as a private person or as an official authority. Under the aspect of the coordinating quality of the principle of Justice it shows immediately that the principle of proportionality is a concretization of it. No violation of the principle of relative equality or no more friction than necessary could be appropriate descriptions of it. cc) Functionality Functionality has been used by Radbruch as to mitigate the rigor of strict equality. It shines up in considerations referring to proportionality as that is evaluated in the light of the purpose of a given law or legal principle (see above). It is of a similar function as proportionality yet more specifically referring to the nature of a certain legal norm.

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dd) Good Faith Good faith, means mainly honesty and the duty to truth. It showed above that this principle is un-dissociable from the principle of Justice. It has turned out to be a necessary requirement for fair legal proceedings since Roman antiquity. It is today firmly established as a general legal principle e.g. in contract law, in administrative law and even in international public law between states.537 ee) Pacta sunt servanda Pacta sunt servanda means Agreements of the parties must be observed or That men perform their covenants made. One cannot agree e.g. on a price for a service and once the service has been performed ask for more than before. That concerns all aspects of a contract. There is only one exception (see below). Contracts are such an important social instrument where values happen to be involved and the question of Justice discussed everyday everywhere. Therefore these concretizations are of importance. ff) Clausula rebus sic stantibus That principle marks the exception to the rule, i.e. the principle pacta sunt servanda. A contract ceases to be obligatory (i.e. binding) as soon as the state of facts and circumstances out of which it arose has substantively changed. The accent is on substantively or essentially and on the absence of faulty influence. gg) The prohibition of venire contra factum proprium / exclusion of the arbitrary The first is a special case of the second. It means contradictions in a legal position and the ban referring to it. Arbitrary is explained as unreasonable, capricious, irrational, despotic, tyrannical, founded on prejudice.538 As has been found above it is the contrary of Justice. In a more legal technical sense it occurs when essential matter is left out by the decision of a case while inessential matter is considered. It applies to private and to public acts and actions. It is besides the principle of equality another main cornerstone in the concretization of Justice.

537 538

See for the latter Mosler but also Sieghart, cited above See: Blacks Law Dictionary, 6th ed, 1990, 8th ed. 2004

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hh) Comment These principles constitute not the totality but the core of necessary general legal principles. There can be found more in different legal orders and there might emerge more in the future, e.g. in the practice of international public law. 3) Exceptions to these universal legal concepts Limitations of or exceptions to basic rights and general legal principles require a legal basis supported by specific norms, by the protection of better interests of other individuals and/or by public interest, by the public order and/or by public morals. 4) Evaluation By going through the above aspects of Justice its nature has become more tangible a) with the enumeration of its undisputable characteristics as a principle and b) by citing its also undisputable and largely undisputed general concretizations in basic rights and general legal principles, i.e. its immediate importance for the individual human existence. By that it got a clear shape. That shows still what it meant in the past but also what it has become today. Justice has been concretized substantively with regard to the persons concerned and formally with regard to institutional requirements and concerning the procedural position of individual parties. That happened largely during the past 400 years. It became spelled out that which follows from the above mentioned two main traits of Justice, the aspect of action (e.g. as in virtue) and the aspect of purpose, outcome or existence (e.g. as in peace and order). Yet the first one prevails at least in the number of concretizations, but not in quality. That has its core in the basic individual rights or universal human rights, protecting and defending each individual life and existence. From there follow all other concretizations.

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VII Ethics
We have seen that the realm of Justice corresponds to the realm of Life and it has shown that Justice is conceived as a public and personal virtue. That covers the full realm of Ethics or, the other way round, Ethics covers that whole space. Ethics is said today to be the Science of Morality or Moral Philosophy and the full title of this chapter could thus read: Ethics, Morals, Customs, Conventions, Usages, Practices, Manners and Habits. It is not so that from custom to habit there could not be cases of amorality or unethical content. But they are then just the contrary of moral and ethical. By that we look at the birth and growth of the social cases of dos and donts. The principle of Justice rules also that realm.539 It underlies all that which has to do with social rules. A) It was said above that the words ethics and morals have basically the same meaning. Ethics is of Greek, morals of Latin origin. One is the translation of the other. As appeared also above, Greek philosophy was mostly concerned with the three classical subjects: Natural Philosophy (e.g. natural science), with Dialectics (including Rhetoric and Logic) and with Ethics.540 Ethics concerned the questions about right or wrong, law and justice. In our times the knowledge of the origin of these words got lost, and they became often used as if they meant each something special, e.g. one being more personal than the other. There is a revealing example in younger times from an Encyclopedia of Ethics. One author said therein: The distinction between Morals and Ethics is important to any serious study of ethical matters. When ethical views and moral beliefs come into conflict morality must prevail because moral beliefs are universal and fundamental.541 Fair enough, but what happened if someone would hold: Ethical beliefs are universal and fundamental? It is then in the same Encyclopedia that one can read from another author: They (ethics) are that which is moral. Ethics involve following not only the letter of the Law but also its spirit.542 In English and German for instance there is also a genuine own lingual root dealing with those matters. In English it is e.g. the word custom, with a broad meaning that can
Dabin J., sur Droit in: Encyclopaedia Universalis, Paris 1968, vol. V, 797 Diogenes Laertios, Leben und Lehre der Philosophen (Life and teaching of Philosophers), Reclam, a book from the 3rd century AD, see: book I, 18 That book of Diogenes Laertios was written 600 years after the life and times of the great classic philosophers. Its authenticity is often criticized, yet it draws still directly from the literature and culture of antiquity. As it is cited in many a serious work, we shall not refrain from doing the same in one or the other case here. 541 D.V. Weatherman, on moral principles in The International Encyclopedia of Ethics, London Chicago 1995. p.564 542 A.F. Bloom on law in the above Encyclopedia, p. 485
540 539

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include e.g. a habit but also customary law and in German Sitte, Sittlichkeit with an equally broad meaning including e.g. practice and morals. Other terms show up in the vicinity, such as: Usage as in usage of trade, Practice as in banking practice, Habit as in social habits, Manners as in business manners and Convention, which is often used instead of custom or practice. They concern all those social events, which in gradually different ways have to do with an aspect of ought. That links the general and strongest establishment (formalized and equipped with official sanctions) of an ought, the law, with the often more special and weakest forms of an ought, habits and manners. B) Since Antiquity it was held that any law is based on principles of morals and ethics. Even the words were used alternatively (see above). Radbruch added the point that only morals and ethics are able to create the binding force of the law. Legal clauses, he said, may create an obligation but never an ought. That requires moral views and feelings in the consciousness of each individual. He even spoke in this context of a double layer of values. 543 That can be understood as referring to an outer layer of a formal or coercive aspect of the binding force of the law and an inner ethical, individual one. It means not really a double consensus, one officially formalized e.g. by a legitimate parliament, the other freely present in the social body. Yet it approaches that. That, which comes out of parliament happens to be embraced actively by the minds of the individual citizens. Radbruchs truth becomes immediately clear. No legal order can be established lastingly by external, institutional means only, if there lack the internal personal acceptance or conviction of the ones concerned. There is such to distinguish between the mere knowledge of a law and the respect for it. Radbruch insists on the second aspect. Yet it may happen that a government/parliament has more information and can afford a more objective view and enacts a law which is, even after abundant information, not (yet) understood by a majority of the people concerned. That should be the exception not the rule, but it can happen. No blame can fall on such a law if its beneficial nature and just purpose is clearly established in an objectively reasoned way and made publicly known. C) We thus deal here with social phenomena of a habitual or normative character. They appear as either closely or remotely related to law. Sometimes people make the point of private habits or manners. That is not the subject here. Only phenomena, which are socially relevant, i.e. once they happen in the public space or affect the public space, i.e. others, are of interest here. Like laws they have to do with social situations, involving behavior, attention, consideration,
543

Radbruch, Philo. op. cit. 5.1., p. 47

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confidence etc., respect and duty. They can be compared with law e.g. under three aspects: - The extent and intensity of the social agreement (a consensus) - The likeliness of official sanctions and - The degree of formalization. In societies where legislation, whether delegated or not, is based on the idea of general participation or inclusion, e.g. through representation, it is clear that laws are based on the idea of an agreement, i.e. on a general agreement (consensus). That is not always; some would say, rarely a direct one. Sometimes a citizen though disagreeing with the content of a certain law, says, I agree with the system of lawmaking (e.g. majority rule) and I accept the law because of that. There may be another case where I agree and others dont. There are cases where people disagree entirely and leave a society, when they can. When they cant they have their political rights and the full range of legal redresses available. In the end they might choose the way of civil disobedience, which also obeys specific rules (see above). Yet the idea of agreement underlies all of the mentioned normative phenomena, from a simple common practice to the most important legal rules, such as in a constitution. That concerns the procedural technical aspect. The substantive aspect544 as said is covered by the mentioned legal/ethical axioms, which are by now in fact thoroughly experienced specific aspects (of the principle of Life). It is then no surprise but rather natural that just these are supported by strongest agreement. Such an agreement may in special cases cover just a habit or a certain practice e.g. of a certain business be it local or partial. But there is the rub, practices may change in character, all of a sudden taking on more general consideration, more concern, involve more than an unqualified expectation and starting to show some normative character. It appears then the aspect of intensity of such normativity. That is further linked with the aspect of sanctions below. There may be e.g. types of behavior which are generally more or less considered appropriate but without a strong expectation around that they happen, so there can hardly be spoken of as a duty or of the existence of any normativity. Nobody says in such a case: A is supposed to behave in such and such a way, or He is generally expected to do so. But a growing social expectation may start to form from there and switch suddenly or shift inadvertently into another category. Law is said to belong to a domain, which knows also floating transitions (see above). This is an example of one. Under the aspect of sanctions one has to distinguish social sanctions from legal sanctions. Yet it is necessary to get aware that legal sanctions are but a qualified
544

Referring to content or value (in a perfectly logical sense)

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form of social sanctions, namely the officially stated, formalized ones. Society has formally established itself in this regard, it has become as State. There may be cases of a habit, a practice, a convention, to which so slight an importance is attributed that there is no threat of sanctions at all, social or other. There may be cases where there are social sanctions. There are definitely cases where business practices, manners, usages or conventions can entail legal i.e. official sanctions. The law may refer to these practices and conventions, e.g. typically in contract law, and it is a frequent fact that they are considered in the construction and interpretation of legal clauses and in particular in the interpretation of contracts often referring to particular trades or business branches with their specific traditions, practices, manners, usages, customs and conventions. They thus can become of an official quality and thus become officially enforceable by the authorities of the state. Laws seem to concern those rules, which are usually backed by legal sanctions. So there appear specific varieties or categories in that context from social behavior not involving social sanctions over many other forms involving such, to social behavior involving legal and social sanctions. That Law deals with qualified social behavior is at once proven by the fact that the above stages may overlap, as just exemplified. It is to be said with regard to the last case that and the consensual aspect and the aspect of formalization follow accordingly. Under the aspect of formalization it appears that practices and conventions established among business partners are often written down and printed, sometimes voted by a business association. Yet they are less formalized than a positive law, which is usually discussed and voted in Parliament, a legally qualified official body, and officially printed and published. But they can under certain conditions also matter for the courts as said above. And, if one looks to the other end of the spectrum e.g. at social habits, there is a) a weaker and/or less extended consensus, b) no threat of official sanction, may be only a slight chance of a social one, and c) no formalization at all. D) It becomes thus apparent that the domain of social behavior forms a whole, from social habits to constitutional laws. In one respect it is free, fluid, largely untamed, in the other it is a general, public, official affair, strict, a duty, laid down (posited e.g. in written form) and equipped with official sanctions. Social it is in both respects, largely unqualified in one, very qualified in the other. Ethics and Morals, i.e. the personal and growingly general or public thinking, feeling, expecting etc. goes through the whole body of social behavior. It underlies laws as it underlies mere social habits. Yet we use it also as to distinguish social behavior, which is not part of laws from the latter. So we use a name, which is common to all social behavior also as to speak only of one part of it. Yet by implying, that what is addressed by it, it is linked with that, which is addressed by laws, namely the

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matter of social behavior, which shows the mentioned conventional, normative, sanction-related and formal aspects. So the names law or ethics/moral ride like stickers on it, law on one end the others more towards the other end. But because there is a dynamic towards the qualified social end, and rarely the other way round, a statement that applies ethical and moral standards to laws makes sense, as the above statement that ethics and morals form naturally part of that which became laws but not all which is considered under ethical and moral aspects has become a law. Laws belong such to that smaller set which is part of that bigger set called ethics/morals. It is no use to say: The clause XY in that foreign traffic code according to which a country-road has to be at least 6m wide does involve neither ethics nor morals. Again one would have to point to the fact what the overriding purpose of the traffic code is and then also that that clause might have a strong security purpose. All laws have an ethical and moral basis but not all ethical or moral convictions become law. One can sometimes read that e.g. traffic codes would have no reference, neither to justice nor to ethics and morals. That can hardly be upheld as even a cursory reading of the clauses of such a code shows, e.g. in its clauses dealing with liability, but not only in those. Those legal/ethical aspects are either mentioned or presupposed and underlying the whole text and then it would also be a good idea to take note e.g. of the notions used by the parties pleadings in cases relating to traffic matter (e.g. security, liability, responsibility, personal damage, danger, negligence, life etc.). That the general purpose of such a law is intrinsically a matter of Justice has been shown above. E) All normative phenomena including those of ethical, moral character have to do with a state of mind, a certain mentality. It has been shown in particular that these individual and social mental states, often treated nonchalantly as they are devoid of official sanctions, are a constitutive element of any so-called legal order. There cannot be a rule of law without it. They are part of the necessary endeavor, stated already by Plato (see above). It has been shown that law deals with living matter and is itself a matter of life, requiring a dynamic attitude not only by those qualified to apply the law but by every member of a civilized community. They are serious business. The most pronounced common moral-ethical tenets tend to grow into the form of legal rules, laws (an example of the above customary, conventional, traditional or historical character of laws). Laws can thus be seen as ethical minimum.545 But they are also a maximum as they are considered to be the most important tenets.546 It is even practically important to see that ethics and morals belong into the same context as laws. Many laws and legal practice e.g. referring explicitly to morality (Gute Sitten, bonnes meurs) also business
545 546

i.e. by Jellinek, see: Radbruch, as cited p. 47 i.e. by Schmoller, see: Radbruch, as cited p. 47

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practices, or conventions and the judgments with this regard prove that in practice every day. F) Even if one tries to put Ethics/Morals and Law into the above perspective and even if one can give objective arguments for that, it remains a fact that laws are a public matter while all other normative phenomena and particularly habitual ones have a stronger personal character. It is also therefore that the understanding of the terms ethics and morals appears as slightly blurred. This has not only to do with the difference of the roots of these words in various languages but also with political machinations around them in younger times. Who did not try to squeeze their very special subjective views and habits into generally binding, common law? But it had also to do with the utter liveliness and dynamism of these matters. In the light of the above the ethical and moral approaches in a society should follow the principle of justice and the same absolute and universal values as mentioned above. Yet the importance of subjectivity and defense of each ones own well being, existence and life (Entelecheia) grows more important. Because every member of society defends its own life and pursues the goal of general happiness (i.e. Socrates and Aristotles Eudaimonia), that got legally confirmed as pursuit of happiness in the US Declaration of Independence (1776) 547 . This is another confirmation of the above i.e. that this is the first principle when people make common cause. But these important values appear somehow as tangible as natural laws in science. Whatever one tries to do (und wenn die Welt voll Teufel wr i.e. even if the world were full of devils) sooner or later one happens to encounter them.548 They are thought to be abstract, but with the repeatedly encountered specific occurrence their reality is felt as being rather concrete. Therefore the Golden Rule (mutual respect) has always been mentioned also hereunder as well as equality, fairness, equity, respect and reciprocity, to each one his own. The ethical principle live and let live is not only a good one, but it is structurally part of the legal order as it secures each ones life. But it applies there only in a strict and rather minimal sense while the mentioned ethical principle looks at the colorful situations in practical life not addressed by law. It also reflects the basic rule regarding the collision of personal legal positions or rights: A persons individual rights end there where the other ones start. Even from a merely systematic point of view it cannot be otherwise. It is also a cushion against wrong personal judgments. It is said to be an American Indian proverb that One should not judge somebody before one has been
It went famously from John Locks Life, Liberty and Property to Life, Liberty and the pursuit of Happiness. Yet according to Cicero, as it shows below, that is not an individual but a social affair. 548 See Hffe, as cited above
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walking in his shoes. Sometimes however it is the responsibility of a community or simple human feeling, which requires that one does judge and act. G) Ethics and moral standards appear as underlying most major laws but they become relevant in particular in all situations not covered by law but preliminary to it or surrounding it. There the judgment of each individual, group of society, or society as a whole, but not established as official entity, matters. They are also supposed to follow the above values. If they dont and if the official society, embodied in the state, finds that they really should, it adopts corresponding laws. Sometimes the official society goes another way, but that is then a particular subject, namely the coherence of official government and society. That is a matter of constitutional law. H) It is clear that the generally acknowledged principle of the Rule of Law, e.g. the rule that a government is only allowed to act on the basis of generally accepted, pre-established and properly published legal rules, implies that this, which is not expressly forbidden, is to be considered allowed. That is a consideration referring to law. That statement sometimes encounters surprise, if not mockery. That is because many never had a reason to think the normative principle to the end, nor to realize at once that this is a statement about the reach of the law notwithstanding the validity of the realm of ethics and morals. It is clear that many things are forbidden or excluded by ethical considerations, but not mentioned in a law. That means that there is a considerable space (personal autonomy; responsibility) left for the individual citizen to apply his self-monitoring capacity. We disregard here the fact that it follows from the above basic principles that official society has established itself also as to make sure that this space is as large as possible, i.e. to form a group as to save ones existence. That is not a statement about the purpose of the law or justice, but about the state, i.e. that which is there to produce and apply these laws. It is the subject of constitutional law to explain why modern governments have the autistic tendency to think to be acting in the interest of society, when they continually reduce that space by producing ever more rules. As we have seen, the body of the habitual and the normative are linked. The initial statement above refers clearly to the range of the action of the state. Its functioning depends on each one and on a minimum standard of personal ethics (and morals) following justice and the mentioned universal principles. Such, one could say that the law only requires legality yet ethics/morals require morality.549

549

Radbruch, Philo. 5.3.1., op. cit. p. 44

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I) It was said above that ethics is Greek and morals Latin. It seems that Cicero had coined the word moralis (philosophia moralis) as a translation of Greek ethike (Ethike philosophia), which has to do with character and with an aptitude developed into a habitual mode of conduct.550 That would bring it close to the English terms custom or usage. Kant considered it as synonym of morality (Sittlichkeit), which in turn happens to be the usual translation into English. 551 He stressed its origin in mans freedom and in particular in his autonomous will as opposed to a foreign controlled (heteronomous) will. He however understood conscience as a natural given. 552 We remember in this context the genuine and original contribution to that subject by Democritos.553 It is supposed that Kant wanted to establish the human personality firmly on its own feet such as to require morality (Sittlichkeit), which involves autonomous responsibility. Whether ethics is the same as morals, whether it has a natural component and a habitual one, it has in any case a given orientation. That is Justice. The value of morality appears objectively, what Kant had tried to make clear, but its above constituents appear also in man particularly, that is, in his conscience, on what Kant chose to rely in the end. 554 Conscience has always been compared to a just impetus.

550 551

see to the latter: Aristotle, Nicomachean Ethics, 2.1. Foundation of the Metaphysics of Morals, op. cit. Introduction 552 Matqaphysics of Morals, op. cit. 400-401 553 see above 554 It is certainly not the place to criticize Kant here, but the insistence on autonomy seems to be a little exaggerated in view of the recourse he had to conscience, which could not act as an inner judge if it had no values. These are at least the above. Yet we have to see that Kant wrote in an intellectually belligerent time and that opinions of more or less his camp were strongly against foreign influences, such as, horribile dictu, natural law, as it was understood then, and they were also against the idea of Aristotles eudaimonia, which was understood as something slightly frivolous. Kant also has lines against that although his whole approach followed a similarly practical line as Aristotle; see e.g. Foundations of the Metaphysics of Morals, towards the end of the last title of the third paragraph.

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K) Egoism, the contrary of Ethics Shankara said clearly that Egoism is the worst under the consideration of Ethics (see above).555 On the basis of that which has been found above this can as clearly be justified. The principle of Justice rules all domains including the ethical one. It has a principle-, an institutional- and a personal aspect. Under the latter it follows already from its coordinating aspect that egoism goes against it. Egoism does not care for coordination. It cares only or unduly for the own position. It such runs on a collision course, which sooner or later leads to frictions if not to crashes and in any case it creates an accrued risk. That may seem to go well in certain cases. Yet these can only be exceptions with a considerable risk of negative consequences as the principle immediately shows. Such things are typical for uncivilized societies, where special partial influences split a population. It is in these conditions that lawless and unethical spaces open, being exceptions themselves and inviting such. That is the case in as underdeveloped as uncivilized societies that have often not gone beyond a family structure and the right of the stronger, where different groups follow different agendas. They tend to show a constitution that is barely on the level of the one of the people of Gilgamesh 556 , i.e. nothing near the one of Hammurabi. The principle of responsibility is obviously contravened by egoism, i.e. by that same egoism which is contrary to Justice. The principle of truth risks suffering as well. So does the principle of Life, as the egoist risks unduly infringing upon legitimate interests. It remains true that each individual has its own autonomy, that it is responsible for its acts and that it naturally is supposed to look for itself and its family. Egoism refers to exaggerations of that principle. The above is precisely the answer to Platos question whether just or unjust living is better. He naturally was for Justice but searched throughout his Politeia for a convincing answer to that question. It follows from his finally found definition of Justice to mean self-control as from the above coordinating function of the principle of Justice (its first axiom) that just living is not only better but required. First it is under the consideration of civilization a requirement that each person has to contribute to a just society, i.e. by its personal actions, as it is not possible to arrive at that just by official authorities. For a short time that may seem to go externally but never internally. And, it is the minds that define Civility and its degree of Justice. Also for unjust and indecent behavior one can sometimes find the use of qualities like self-control and discipline. Yet that is abuse, as it is not
555

See also Barney R., as cited above, referring to the same in the Greek culture but under the aspect of Justice 556 Compare a new translation of the historical text by Mitchell S., Gilgamesh, New York 2004, e.g. a situation as described in the beginning of book I.

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self-control-in-wrong-behavior that is meant but general self-control in all things according to the principle of justice. Second the same follows from the risks of a collision-course as just mentioned and further from the other tree Axioms of Justice, Life, Truth and in particular Responsibility, which give an utterly clear answer too. In certain parts of the world it is Justice in the form of Social-Justice and in particular with regard to the distribution of wealth that is most often mentioned. It is then further said as by Plato in his Politeia, that there are many unjust people who gained great wealth by benefiting of violations of Justice.557 That happened as said often in the past and in underdeveloped societies. But it tends to happen at all time wherefore every individual and every authority has to be very attentive. It follows conclusively that neither injustice nor egoism can be tolerated, the first directly under legal the second more under social considerations. In the case of egoism it is clear that it is more serious occurrences, which are meant. In any case it belongs to the nicer side of present times that quite a few have shown that one can do really very well without benefiting of violations of the principle of Justice or by showing a better personal approach to Justice than many others. These are examples of an essentially cultural advancement. But it shows also, as soon as there is a real society, the sphere of the private tends to shrink to some extent. That is the price for Civility, Justice and the Law. Such a culture has also its costs. L) An Unexpected Aspect with an Obvious Conclusion Logic is the rule of conduct for the mind. Morality is the rule of conduct for mans actions. That is a nice and surprising statement by J. Piaget (cited above) providing the feeling of a final conclusion. Yet a general opinion cracks it open once more. It says: Rationality has never been able to guarantee moral behavior. 558 What has been nicely separated in Piagets statement, logic on one hand and morals on the other, is suddenly linked together, one being questioned as source of the other. Since the times of ancient Greek Philosophy the basic tenet was:

557

It is interesting in that context that Platos text about Justice, Politeia, starts with a discussion of wealth, Politeia 330a-331d 558 Just lately e.g. by Schmid U.M., in a general cultural and political survey, NZZ, 4/5 Oct. 2003

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Without knowledge, i.e. education, no morals,559 (See above e.g. Confucius, Socrates, Plato, Aristotle etc.), knowledge including the knowledge of logic or reason and naturally it was stressed that one has to have the ability to apply it when necessary. Sometimes it was stressed that valid examples matter (e.g. Aristotle). That leads us to conclude also on the basis of our own general experience today, that morals require knowledge and reason of the one concerned but also of his surroundings, where he is exposed to proper examples of moral behavior. That leads us further to conclude: Moral behavior requires an ambiance or atmosphere of moral thinking, conscience and behavior. And the question might follow by what else civility and morality/ethics might be arrived at than by knowledge, reason, example and most important in social surroundings support, intellectual and material. One does not have to think here of the well known, sometimes a little too outspoken professions of moral behavior in certain ecclesiastical goings on. But one may think of knowledgeable, circumspect, tactful and polite behavior wherever it is. But here comes Cicero, explicitly sharing the above opinion, but adding another, for us rather stunning consideration: It was the taking over of Greek Mysteries that caused the Roman People to abandon primitive and uncivilized life and to turn for the first time to civilized, human life, to get to know the foundations of life and not only to gain the possibility of enjoying life but an aspiration in the hope for a better life.560 By that we are lead to mysterious seemingly more irrational constituents of civilized or moral life. Can that still be part of an objective legal philosophy? Precisely it can and does, as a most qualified and prominent observer in the field refers to such a fact. It even leads us to a (if not the) pertinent insight concerning ethics/morals and law. They may be considered abstract, but they do and cannot grow in a vacuum. Ethics/Morals do and cannot grow and exist without specific preconditions.

559

It is not taken into account here the aspect that e.g. in original societies there may reign a far better moral standard in the dealings and behavior among individuals, than in modern times. One cannot speak of decency but of very high levels of respect, mutual consideration and attention to each other in those cases. While those can be considered exemplary, more developed societies may require other types of incentives and controls. Yet the term developed may become rather fragile in such a context, i.e. referring but to products and services but not to the very moral constitution of the individuals concerned. 560 Cicero, De Legibus, book II, XIV, 36; translation by the author

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Attic Dionysia (Dionysos, roman Bacchus, the God of Wine) were among the most important mysteria in ancient Greece, i.e. Athens. Such mysteria were public celebrations and festivities in honor of a god lasting for several days. May be secret, wild and uncontrolled in the past they changed when Peisistratos, the head of the Athenian polis (i.e. city-state), started (around 500 BC) to introduce drama into the program. He himself seems to have participated, such establishing a connection with the state. Indeed they gradually transformed into something like a public moral institution. Orphic traditions reminding the above values were merged with them and all the famous authors participated in the annual dramatic contest (Sophocles, Euripides, Aeschylos, Aritstophanes) and they definitely established a moral/ethical atmosphere by dealing with such subjects not least by making use of the chorus (dealing among others with heroic behavior, ethical behavior, truth, truthfulness, morality, the good, showing just gods, deploring human suffering, the value of human life, order, justice, through suffering to insight/knowledge, success by virtue, self-confidence etc. but also with totally different, sometimes contrary matters) so that the attention to human life and the human community replaced the attention to the life of the gods and their community.561 Furthermore they included funny satyr-games and came to include also celebrations of solemn character, harvest festivals, introduction of youth into the community of adults, memorial services and so forth. These were celebrations by a community (Athens) of its gods, of its values and of itself. The whole community (everybody) participated in one or the other specific role or function. That may have included organization, preparation, rehearsals, a planned structured approach, order, certainly decorations, clothes, may be cleanliness, consideration. Everybody felt to belong to a community everybody knew his or her function and role and he or she behaved accordingly. The whole was directed to a greater good. They may have felt duties and rights or entitlements etc. Based on that or a similar picture, it becomes clear at once, that each individual needs a sympathetic reception and a place in a community or society as to be able and to feel a duty to behave socially. That means communication in both directions. Such it becomes more than obvious: Without society no social behavior562 It follows: Without a qualified society no qualified social behavior. If we mean by that qualification a civilization, ethics and morals of a standard that enables: 1) knowledge of, 2) understanding 3) respecting of, 4) performing of e.g. the Rule of Law, then we erect daringly tough preconditions, as it tends to mean at the same time and to a corresponding extent, order (including hygiene) in personal,
561

See: Nestle, op. cit., speaking of reformation (Luterung) and moralization (Versittlichung) of the mythos, p.157 seq. 562 When we write this it appears of utter banality, yet it makes sense. What happened to us that we forget the obvious?

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sentimental, social, medical and public affairs. If there is no community, no society, no adult people showing the example, it is but daring to expect decent ethics and morals and a functioning rule of law to exist. If a so-called society broke down and a population consists of inward looking, rather exclusive selfreferential networks then it is easy to see what is going to happen and, such a daring expectation appears as vain. One could then simplify and say: Without a decent society no decent social behavior Indeed only a nave or ignorant dreamer could think otherwise. It has been drawn attention to the danger of an inadvertent switching from an ought to an is. That is what the Ancients had in mind, when they spoke of knowledge and what Radbruch sometimes called a double level underlying justice, not just the law but ethics and morals, which means further, a specific configuration of a community or society. Modernity does not have Mystery Celebrations as the ancient Greeks and Romans did, but it has other public celebrations, services, religious and other, festivities, public and private, cultural, military and sport etc. One shudders at the thought that our mass-media have taken over the role of the Greek chorus. One is thus a little shy to mention plays, concerts and art as they have badly degenerated in younger times even more than those in sport. In principle they would also fall under Ciceros statement and that means that all would have to orient themselves according to the above simple truths. There is, in particular we might say, no free lunch in cultural affairs, here to their legal and ethical extent. If there is no trust in a rational foundation of Ethics (e.g. Kants moral law, see above) it is as doubtful if the belief in a highest Good Logos Divinity (Heraclitus, Empedocles, Plato, the Stoa, Cicero etc. see above) can do. Both are certainly helpful, yet without an ethically oriented society (community) the results of both of these approaches risk to remain weak. But it is to insist on the fact that man has been given his conscience, the syn-eidesis of Democritus. He got it freely so he should certainly not squander it. Thats all nice and dandy, someone might say, but what happens when there is no society. That is another subject. It seems obvious that there need be basic common traits that bind people enough together as to form a group, a community, a society. If that is not there it might be rather precarious to deal with the matter of law in such a qualified fashion, as we dare to do here. We remember hearing politicians say in the West There is no such thing as society., and at the same

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time duly There are no rules besides those set by real life.563 If there is a state, i.e. a set of rules to be executed, some form of society is required. If it is not there a governments first task is to see to it that it comes into being. If there is no legal rule, on what basis shall e.g. the third traditional branch of government, the judiciary work? And on what basis shall business people (clients), conclude contracts, claim damages, incorporate and run corporations, one might ask. Obviously there is a growing need for real education. But one may also say that todays societies, in the West in particular, are atomized, i.e. individualized. There are today cities, where more than 50% of the households are one-person households and there are cities, where e.g. more then 50% of the old ladies over 80 years, are living alone. At the same time it is said in northern countries, that individualist northern business-people had no chance in the market against business-people from the South, those ones having the advantage of relaying on closely-knit families and clans. Either there is a renaissance of the old society or there is a transition to a new one. Yet society appears to us as a precondition to a State and to Law. Where else could the necessary consensus/agreement come from? Otherwise it seems bound to degenerate. It was already the Italian Renaissance (Giovanni Pico Della Mirandola) that had found that man is free, which makes that he is free to elevate himself through his own spirit or to let himself freely degenerate into lower forms of life.564 M) Objective Ethics / Subjective Ethics By the first term one thinks of the approach to ethics in the sense of Kants moral law, his categorical imperative. It is also called Verhaltensethik (something like behavioral ethics). It is sometimes also called Verantwortungsethik or Pflichtethik (ethics of responsibility, ethics of duty). 565 It is an intellectual approach to ethics and it constitutes an objective foundation. To that is opposed a subjective foundation of it. That came into being in opposition to Kant and Hegel with a school of thought started out by Kirkegaard. It spoke later also of

563

Us thinks that the first statement was made by Margaret Thatcher (a former British Prime Minister) and the second is from a publicly reported speech of a business consultant, G. E. Thiebault of Booz, Allen & Hamilton (the latter name referring to one of the greatest in legal tradition, i.e. Alexander Hamilton of the American War of Independence, The Federalist, the USConstitution and installation and starting-up of the US Government fame). Hamilton would probably have been rather surprised by such a statement of a person deemed to be cultured. 564 Picco della Mirandola being a student of Marsilio Ficino, who had underlined the spiritual nature of man, see: Discourse about the dignity of man 565 see e.g. Max Weber, Politik als Beruf (politics as a profession)

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values, which were an emotional a priori in each man (Max Scheler).566 The latter is also called Gesinnungsethik (something like ethics of the mind). No intellectual construction of ethical decisions was expected but it was claimed that they were inherent in man. How that? Naturally that has to happen by education and example but also by conscience (conscientia, syneidesis) of each individual. So precisely that broad school of thought that had embraced Plato wholeheartedly and followed also his dislike of Democritus, now came back (made a 180 in todays parlance) to find much value in what the latter had explained (see above). Certainly values are a reality. But it is to be added that it can make sense to try to check objectively what subjectively has been found, particularly if the subjective findings do not agree. One more thing has to be added right here: It is the Stoa that took up Democritus idea that virtuous behavior is to be judged (already) by the spirit in which it is performed. It came via the Christian New Testament and the Romans to us. That shows e.g. in modern criminal law, where not (only) the effect or the success of a deed is conclusive but already the intention by which the deed was done. It is already the bad intention that makes guilty. That it has to be proven is another subject. Quite often that succeeds. That brings us back to the question from where comes that spirit required by law, i.e. morality/ethics. We answered it already several times by pointing in particular to the value or the necessity of education and the existence and nature of the surrounding society. It is an old discussion as already an author of the Stoa (see above) had asked: What is better, habituation or rule?567 It was then found that habituation is better. We have to answer today: Both are necessary. Yet habituation requires several things, namely education, practice and examples. Contrary to a more than dominant western tradition, appearing so strange to many others, it is not done with the delegating of these most important teachings to persons living outside society. Nor can it be very effectively taught by forever repeating ideals (examples) alone (uncontrolled teachers in special conditions not rarely behaving contrary to them), but real, living, serious examples are required.

It is to be added that it was the Baden- and South-West-German School of NeuKantianismus that had come up with the term value (in the second half of the 19th century). It held that each subject was free to decide which value to choose. 567 Rufus Musonius (ca. 20-85 AD), a well known educator under the Roman Empire, who seems to have underlined that Education in Humanity to be more important than that in Religion

566

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VIII On Laws
A) Customary Law Continuing the above consideration, customary law is to be mentioned first. It shows the transition of the normative from the realm of the social to that of the qualified social, i.e. the official, the State. Today it is the State, which is primarily there to make laws. That was probably not always so. Statutory law, i.e. that law which is enacted by the State, is that type of law which is todays predominant reality of social rules. As it is such an overwhelmingly present reality it easily blurs the picture of the whole reality of law. A custom belongs mostly to the realm of Ethics, customary law no more fully. It shows the transition to officialdom, as it implies the conviction (by the ones concerned) that its rules are binding. That makes that it can become officially approved and enforceable. Once the necessary conditions are given the judge has to acknowledge it, which is the precondition to its enforcement. Thus there is a threshold where the quality of Ethics gets the additional quality of Law (as the name Ethics is disappearing behind that of Law). It is slightly misleading to call customary law a kind of positive law, (as it is precisely not laid down or posited) although that happens frequently. But it is officially recorded once ascertained. What are then the conditions required? A custom has to be immemorial, reasonable, certain, continuous, e.g. according to English law, 568 and naturally it has to show a character of being binding, i.e. something like a general agreement/consensus. That is in a given case a lot to be established. That means that a party has to, or is well advised, as the case may be, to contribute to the establishment of these elements. This shows a considerable difference compared to Statutory Law, in particular under the aspect of legal certainty, which is linked to the aspect of the positive character. But these criteria just show the transition.569 When, at what moment and by which criteria does the word change from custom to law i.e. to customary law? The above criteria say it. They circle around two basic facts. There has to be a) a custom, sufficiently continuous, consistent, general and present, i.e. a general practical fact, accompanied by b) a general conviction that it ought to be followed, i.e. that it is binding (in legal
Halsburys Laws of England, vol. 12(1), see: custom Dias, R. W. M., Jurisprudence, 5th ed., London 1985; 58/59, Ross Alf, On Law and Justice, London 1958, 70; Allen C. K., Law in the Making, 7th ed. Oxford 1964, 130 seq.; for international law see: the North Sea Continental Shelf case, ICJ Report 1969, 43
569 568

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tradition called opinio iuris, a conviction or belief that the custom ought to be followed like a legal rule), a general mental fact. It is thus one single mental fact that transforms a custom to customary-law. It is that established belief/agreement that the custom is binding. Thus the qualification as law requires two things a) a custom and b) an agreement i.e. a general mental belief that it is binding. The qualification law or legal does thus not require a state, rather mind-boggling for us moderns, for whom the state is omnipresent or better, just that agreement is an element of statehood. That is another proof for the fact that law means something else or more than power, authority and the likes. Bodins and Hobbes view might have been so far removed from an ordinary society that they could not even think of the matter of such an agreement. It would probably have appeared ludicrous to them. Yet just their world was in fact full of such customary rules. There are many definitions of law, addressing these facts. 570 Here is the definition of law in its raw or wild form: It refers to a binding social rule. It may be officially sanctioned but it has not grown in the sphere of public institutions and does not require official recognition. It grew in the depth of society. But it has one advantage. It is vested with the immediate public support, in which respect positive, statutory laws, may tend to be lacking. B) Statutory Law Statutory law on the other hand is positive, laid down, written up. It is that law which is the result of a constitutionally ruled, usually representative, legislative power. It implies only one of the elements which have to be established in the case of customary law. Under statutory law the rule comes first and the practice according to the rule follows usually later. But the agreement is there. It turns out that a parliament has a double function. Not only is it the place where the agreement is concluded, in the name of the people, but it is also empowered to sanction it as official, i.e. making it enforceable. Compared to customary law parliament plays the role of the people and that of the judge, while the practical aspect is left aside. The latter is supposed to follow by the application of the law, either by the authorities or the people. Statutory law is such positive law in the full sense of the word, i.e. as we understand it today, formally enacted, officially vested with a pre-established public agreement about a specific matter and enforceable. That refers to its refined official, i.e. institutional definition. By that an institutional understanding of law is secured. As it happens it is from here that thinking about the law really starts. What is its meaning in the light of
570

See e.g.: Robson, W. A., Civilization and the Growth of Law, London 1935, 3-5

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Justice? What are aspects of a social norm? What is that a binding rule, etc? Moreover it is hereafter to come back to institutional matters. C) Specific applications of the principle of Justice In the light of the overriding principle of Justice, laws are to be qualified as its concrete expressions. Their purpose is to lead to peace and order, i.e. to create Justice. They refer thus to what we called the active principle of Justice. As the active aspect of Justice refers to the coordinating principle of Life, individual laws are its concrete application in a specific time and place. In a state of civilization laws are social instruments applying the principle of Justice. In the absence of a state of civilization, it makes no sense to talk rationally about laws as arbitrary commands largely evade rational analysis. Yet the Axioms of Law and Justice apply wherever Life is, i.e. even there. There was that statement in a legal text that the principle of Justice would not appear in many laws, such as e.g. a traffic code. One might beg to differ. There is hardly any better example of rules to apply the coordinating principle of Justice more clearly than those. Justice is no pompous theoretical or mystical matter. It is an obvious existential reality, appearing in all social dealings ever since, showing as existence or absence of order, peace and security on one hand and involving constantly a necessary mental and practical endeavor on the other. D) A form of statements Laws are precepts Laws are prescriptions Laws are imperatives Laws are rules Laws are norms Laws are normative statements Thus they are statements in the form of rules, i.e. of social rules. Besides of specific cases they do not say what is the case but they state what should be the case. They deal with what ought to be. That is the nature of rules.

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E) On is and ought In the light of David Humes and Immanuel Kants insistence on norms not following directly from facts (see above: the famous exercises about is and ought), a brief comment seems to be due. Lets take health as an object of legal protection, e.g. as in a law forbidding the infliction of injuries such as in a clause of criminal law. How come that such a thing slips into a legal rule i.e. into a normative statement? Health and its opposite, illness or injury, can be considered as belonging to the factual world. It is not big business for man to say that the one is desirable but the other not. Or better, it goes without saying. As a value judgment it is nevertheless there. It would not be there if that fact were not there. In many cases the value judgment is like attached to the fact, as it is so obvious. In these cases one may reasonably say that the facts lead nearly directly to the normative statement. So, one could ask: On what else should a normative statement be based if not on facts? Still a value judgment is there. But some facts leave us less choice than others. In the above case there is practically none. It is then no surprise that health appears in normative statements as an object of legal protection. In the same context one may also mention the principle of the normative power of facts (die normative Kraft des Faktischen) i.e. the summing up of the historical, social, factual influences on legislation and the corresponding prominent schools of legal thought (see above) 571 , which happened, and that in very positivist minded times, to emphasize precisely the opposite aspect of the above initial statement. A second thought puts that into another perspective: In practical life it appears that it is not so much the inadvertent shifting from is to ought - which poses problems. But wishful thinking is, and that to a considerably more frequent extent, i.e. the inadvertent/sloppy shifting from ought to is, and that appears, under the aspect of injustice, to be a far bigger danger.

571

See above and in particular Georg Jellinek and Max Weber, as cited in Zippelius, Rechtsphilosophie, op. cit. p. 43

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F) Legal laws versus Scientific laws There is a distinction between scientific laws and legal laws from Philosophy well worth to be considered.572 The first are descriptive and the second prescriptive. When the first ones are not met, it is the fault of the scientist who devised the laws, i.e. his laws are false. But when the second ones are not met it is not the laws that are false but the mistake of the ones supposed to obey the laws.573 That is indeed the case as was shown above with the principle of Justice. But it has also been seen that there seems to have been a historical link between considerations that lead to the development of laws of nature and those that lead to legal laws (see dharma above). Moreover even the terms may intersect. Basic legal norms are considered to be intrinsically natural. G) Human Preconditions required by legal rules / the Image of Man in Law A rule destined to be followed by humans has specific requirements. These can concern the expression and content of the rule as such, which shall be our next subject, and they can, as interests here, concern the human individuals concerned. Under the condition that the rules are adequate and understandable, an individual concerned has to be able to understand them and to follow them. That implies that it is able to think rationally and further that it is able to act rationally, i.e. to take an appropriate decision and to act according to it.574 The laws as we know them since the enlightenment, i.e. since the advent of postrevolutionary constitutions, i.e. in the US and on the European Mainland, e.g. since 1787, 1792, 1848 and after that, but also in other regions, treat man in general as a responsible person. He has his autonomy and he is responsible for his own acts. We may think of torts law, criminal law but also constitutional law, where he freely casts his vote yet is later bound by the outcome. He is supposed to have left behind former shackles of dependency and serfdom. It was the rather influential Kant who claimed that early on quite clearly: Enlightenment is mans emergence from his self-imposed immaturity. Immaturity is the inability to use ones intellect, without guidance from another.575
572 573

It can e.g. be found in the Vorrede (i.e. introduction) to Hegels philosophy of law Barnes, cited above, 128/129 574 An aspect often put briefly in ought implies can, see e.g.: Essays on Aristotles Ethics, ed. A. Oksenberg Rorty, University of California Press, Berkeley, 1980, introduction p.2; see also instead of many Wieacker, op. cit. p. 614, but also Russell referring to Kant 575 Kant I., Aufklrung ist der Ausgang des Menschen aus seiner selbstverschuldeten Unmndigkeit. Unmndigkeit ist das Unvermgen sich seines Verstandes ohne Leitung eines

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We shall not bother here that such a sentence sounds rather pathetic today. The latter sentence catches the essence: Man is autonomous, able to act rationally, able to recognize and to defend his own interests and those of his close ones in specific situations, i.e. in a family. From that follows that the law in general presumes man to protect his life. According to many constitutions that applies also to other lives e.g. in a life-threatening emergency. There is a tendency to take all that for granted. Yet in younger time we see a growing number of irritating exceptions. Who has not read e.g. of the many suicide bombers or of cannibalistic behavior in the midst of presumed civil society in different parts of the world? Who is not aware of the effective guidance of a majority of people by the advertisement industry and our media in general, press, film and TV. We are shaken in our belief in the foundations of our laws. But can we do without? It turns out to be rather difficult to run a society without a set of pre-established rules. It is also rather difficult to run a society on the basis of a set of rules, without presuming the above preconditions. Otherwise for every act there would have to be named an authoritative guide. No private initiative could be presupposed. Nobody would be responsible for anything. There could not be a functioning rule of law, without the presupposed autonomy, independence, initiative and responsibility of man in and out of office. However if the above cited suicidal and perverse behavior would became more widespread one could forget that. That meant anarchy. But the law does make a difference on many occasions. It provides for specific help and treatment for those who are not independent, who are weak or in special states and situations. The above is assumed but in principle. Yet we repeat it is a precondition for that which we call rule of law and that in turn is a precondition of that which we call prosperity. Both are conditional of that which we call civility. Still the above are not the only preconditions to a functioning rule of law, nor of prosperity, nor of civility. More is required. Kants ban on lies was mentioned above. We have described his categorical imperative. In his Critique of applied Reason (Kritik der praktischen Vernunft) he explains that further. There he distinguishes Bona fide i.e. Good Faith and pathological will. We have seen above that e.g. contract law and administrative law and international public law require the observation of the Bona Fide principle, i.e. of good will. This is stated in many legal norms and in thousands of legal decisions, i.e. judgments of legal Courts. It is found in private- and public law. That omnipresence leads to assume its functional necessity for a functioning rule of law. It means in practice honesty and truth.
anderen zu bedienen. mentioning as reasons for such immaturity lazyness and cowardice see: Was ist Aufkrung? in: Berlinische Monatsschrift, Dezember-Heft 1784, p. 481 seq.

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Lets make a comparison to our real world: The above conclusion is not necessarily mirrored in our times, in our Zeitgeist. Give him the shaft, frequent talk of winners and losers, the acceptance without much ado of such things appears to be indicative of a desperate mentality. One could have the impression that and Darwins, Nietzsches and Marxs writings had somehow surfaced as a dysfunctional brew. Many people do not see that the true contribution of Darwin was the evolutionary principle and that the so often cited survival of the fittest is but a hypothesis, impossible to verify in complex surroundings, as fit and unfit require the knowledge of all the relevant influences and conditions and their respective value, an utter impossibility. The same applies to the term natural selection, an unhappy choice of word by Darwin himself. Where are the selections? A myriad of choices happen in complex situations. We are still waiting for the genius, who is able to keep trace of them. Nietzsches desperate 576 Umwertung aller Werte (Reevaluation of all values) need not much comment. If somebody does not want the rule of law, he has to face the loss of peace, of prosperity and of civility - anarchy. It is a simple choice. This brings us briefly back to a lawyers role in difficult times. His interest can only be the functioning of the legal system. We have seen what that means. It is time and again man who has to take the initiative. Like a fisherman living from the sale of seafood whose prime interest has to be clean and healthy seas, a lawyer, living of the legal system, can only be interested in its functioning. But that is now just where the Sophists, Bodin, Hobbes, Bentham, Austin, and a good part of the legal authors of the 19th and 20th century including the American Realists i.e. Holmes and Llewelyn and the Scandianvian Realist including Hgerstrm, Olivecrona but also Lundsted and then Kelsen would protest. They might say that they never stated that there is no value in laws. But they held (a) that the analysis of laws has to be neutral and (b) that, in reality values and nonvalues appear in the laws and (c) that they see a common feature in that, whoever dominates legitimates himself by the fact of the domination and d) that the one who has legitimacy can put into the laws whatever he wants and in reality does so. That can easily be summed up: The factually strongest makes the law. That is the rule of force, physical or factual. We can thus start again at the beginning above. What came out here is: That may look sometimes so, but there are conditions, also of a certain type of laws, which apply to every apprentice sorcerer. Antigone is a reality time and again, the experiences of legal scholars and practitioners like Cicero, Grotius and Radbruch is time and again a reality, if
576

Nietzsche stated that in his Willen zur Macht (1888), appearing in the last year before his nervous breakdown (1889).

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there is a mighty counterforce to the tyrant. Things may be settled relatively quickly if there is none at the beginning, yet it is slowly going to build up. The might and power of the ever recurring common general motives/values in laws, the forever required legal Axioms, speak a clear language. No buccaneer does undo contract law. From this alone everything can be built up, even the principle of Good Faith. And, then see the above. Moreover there is the principle and the reality of the rule of law to a considerable extent and on top of that the principle and in some places the reality of judicial review, i.e. constitutional control. By that the probability is considerable that only thoroughly tested and widely accepted principles and values get into such a basic law. It is even likely that it brings out a few core principles. But it remains true if there is nobody to apply the law, all principles remain an abstract reality. But even this does not mean that they are not there. In his great work about Justice (Politeia) Plato adds another aspect of the image of man: Those who are praising injustice more highly than justice ... will say that the just man will be scourged, tortured, and imprisoned and after enduring every humiliation he will be crucified, and learn at last that one should not want to be, but to seem just. And so the remark which I quoted from Aeschylus could be more appropriately applied to the unjust man; for he, because he deals with realities and does not want to live by appearances, really wants not to seem but to be unjust (Politeia, 362a). The similarity with the person of Jesus of the Christian New Testament is obvious. Modern Law builds on the fact that Plato is not right in this case. It applies to both characters, the one of good and the one of bad faith, but it fundamentally builds upon the fact that there are a majority who understand, accept and respect the laws as just, i.e. who are generally of good faith. The legal order of a civilized society requires good-faith as a functional precondition, e.g. most prominently in contract law or administrative law but also in international law between civilized nations. This is, as we have seen, a functional necessity for the functioning of social rules. H) Factual, i.e. Formal and Substantive Preconditions required by rules and the Question of Validity their Rational Aspect It is obvious that rules have to be understood by the ones concerned. They have such to be generally understood by all of them. They have thus to be clear and they have to make sense. That means they have to be rational and coherent in themselves. That concerns their content. See also the tentative list of criteria mentioned above under the title Epistemology. These remarks are part of a wider field. It concerns the theory of legislation, which deals with systematic coherence of laws and rules in broader systems of laws. Today with the existing multitude of laws one has to make sure that there is no similar law already in existence. Another basic aspect of Legislation (lawmaking) refers to the

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knowledge of the reality for which rules are made. Perfect knowledge of the facts (realia) is an obvious precondition to the making of rules. There is no space here do dig deeper into that subject. Yet the above belong to its key principles. One rather special examples referring to the content of legal rules shall be mentioned. It happens to be linked with the question of validity: When somebody writes in black ink: That ink is blue, it does either not refer to that writing or it is objectively false. It seems to make sense once one only hears it as such a type of sentence exists in principle. As soon as one looks around one realizes that it does not make sense. The sentence That ink is blue. may be called correct in a grammatical sense but its content is false. The latter, i.e. the right content, is its purpose. Regarding a law this would mean: formally appearing as legal yet turning out to be substantively illegal. One may conclude that laws require indeed a rational and true content. Ordinary laws in a civilized state can thus neither be dissociated from ratio nor from Justice. A rule which does not have the purpose to be just is not a law (see: from Plato to Radbruch)577. Nothing is changed at that if it is nevertheless called so. It belongs to the generally accepted knowledge of man that many things can seem formally right but that they happen to be substantively wrong. Conventional lies may exist in certain societies, yet they remain then what they are, lies. The above is the aspect of rationality in a legal rule exemplified. There are thus not just formal aspects to be observed but also substantive ones, appropriateness etc. Other limitations referring to the content of laws are typically referred to either by the purpose of Justice such as public order or to Ethics/Morals as laws are not supposed to go against Ethics and Morality, in the end also referring to Peace and Order. As has been said it is the necessities of society and its important concerns which should show up in the law appropriately addressed. Positive laws have been created just for that.

577

Only Thomas Hobbes and the likes disagreed. But Hobbes has been disabled by terrible times to distinguish properly between the exception (which seemed in his times to be the rule) and the rule.

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I) On the binding force of Laws (Bindungswirkung) The expression binding force refers to the fact of people feeling bound by laws. That they are obliged to follow them is said in the laws itself. Whether they feel obliged to do so may be seen as another question. In the above at least four events referring to the binding force of laws were mentioned: (a) In the Babylonian state of Hammurabi (ca. 1800 BC) it was felt necessary to show a picture of the god Shamash above the written legal rules. Such one may conclude that this was thought at least to be helpful to show position and importance of the laws, i.e. to try to impress people. It is fair to say that the fear of gods was rather widespread in antiquity. (b) Cicero (ca. 50 BC) mentioned Attic mysteries as a civilizing force, which has been found conducive to a law abiding behavior. These mysteries referred in the case mentioned, to a deity called Dionysos. It does however not appear that the figure of that god was decisive as his legend showed rather the contrary of a civilized event. But the event of community and the common expressions and impressions of virtuous behavior (in plays by Sophocles etc.) in the widest sense, were dominant. Now it has to be seen that Sophocles was a rather faithful man. Still, it cannot be concluded that there was a concentration on the divine figure of Dionysos as an orientation to civility, law and justice. (c) A third event goes through all the above as a necessary prerequisite of civility and as an understanding and living of law and justice (e.g. from Confucius and Socrates, to Plato and Aristotle, and through the Middle-Ages to Kant). That is the necessity of awareness, knowledge, education and habituation. (d) On the basis of Ciceros report an obvious conclusion was drawn above under the title of Ethics. It read that decent social behavior requires a decent social atmosphere and surrounding, i.e. a decent community or society. It has been established that if a civilized state, i.e. an atmosphere, reality and mentality of law and justice are desired, no abstraction can be made either of education or of valid examples. That requires rational thinking and rational behavior as mentioned uninterruptedly since Antiquity. It may be doubtful whether that needs to be further embedded in specific feelings, e.g. of a fear of a god. The very example of the rational requirement does not suggest that, nor does Kants approach in principle, yet it has become clear that the element of a community with its examples, its atmosphere, dispensing education, security and confidence is a necessary surrounding. That is feeling in its most intrinsic form,

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i.e. existence. Dealing with Law and Justice however touched also upon higher values. Justice is itself one, for some the only one. It was to be said that it is a mental concept. Justice is inseparable of Truth. These values belong ever since to the highest level of human thinking and feeling. They appear often together with Beauty and with Love. These four values are among the highest human and universal values. It is but fair to add that these make up the core of the highest attributes of major figures of gods, from e.g. (old Babylonian) Inanna, Shamasch, Astarte, but then also Jahwe onwards. It seems thus not so much the dedication to these names, but to that what they stand for and therefore to these attributes or values that appear as existential, human and universal. That, if combined and developed with reason, tends to lead to a mentality of virtue and virtuous behavior, to a community and thus to a binding force of its laws. It has been further found above that the most universal principle and phenomenon, towering above all others, is Life (a principle of substance and of effect) and that this fact and its knowledge and feeling are so existential and omnipresent that it is often missed as the wood that is not seen for the trees. Yet it happens not just beyond the slightest doubt to be the all-including existential principle of and for every living being as for every human being, but it happens also, very practically and down to earth, to be the most prominent subject of legal protection (gesetzlich geschtztes Rechtsgut) in legal orders everywhere and eversince. It is in this factual aspect accompanied by Truth and because they have to be observed by supposedly autonomous, thinking, feeling and acting beings, by Responsibility (i.e. concernedness). Crimes have been committed in the name of gods ever since. That would seem at least to be more difficult in the name of Life and in particular of its awareness and respect. To that may add then the fact of the existence of the laws themselves and of their sanctions. Yet, while it makes sense to distinguish these thoughts and ideas as concepts, they are neither mutually exclusive nor conflicting but complementary to a wide extent.578 And again it has to remain clear, that no institutional and no intellectual concept can as such guarantee a just approach but only the mentioned daily personal and common awareness, readiness and endeavor. J) Again on the institutional aspect of law and on some other defining elements As said, Law can neither be dissociated from that of Society (Community) nor from the concept of State. It has shown above that Law is the major instrument by which a society of several individuals organizes itself, besides the existing multitude of general habits, traditions, usages, practices, conventions, customs, morals, ethics and the legitimate action of officeholders applying the law
578

A good example for that has always been the compatibility e.g. of the Christian tenets with the philosophy of the Stoa (see above)

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themselves. The institutional aspect is the qualified social aspect of the law. As seen above a custom/practice which is considered to be also binding gets the qualification as law. That specific general mental fact represents the qualified social character, that which becomes official that which becomes the state. That can already be considered to follow from Platos treatment of law and justice directly combined with the treatment of the constitution of a state. It is significant that his work Politeia (meaning the State, usually translated as Republic) carries the subtitle about Justice. That is worth to be restated: 1) Law is constituent and instrument of that which we call State (lEtat, der Staat). At least this seems to be so since the time e.g. of Hamurabi, the Babylonian king (1728 1686 BC), as his legal rules, carved in a roughly 3700 years old diorite stela (a stone), found 1902 in Susa, now in the Muse du Louvre in Paris, France, show. They deal with the same legal areas that are the most often dealt with in our courts, family law, neighborhood law etc. Before and elsewhere that may have been achieved by raw power, the sword alone. In such a case one does not have to lose time with exercises about the term law. There isnt any. But under todays understanding with the rule of law and even in a state like the one of Hammurapi, it applies in general: The state is and makes the law. The law embodies the state.579 580 The potential to enforce the law, e.g. by the use of power, remains usually a necessary requirement, as to guarantee the binding effect of the law, once the agreement (consensus) between the individuals of a society, or that one, have fallen apart. Power is such another major constituent and instrument of a society constituted as a state. But again it is to be distinguished from that which we call law although it may often go together. Thus speaking about a state means at least indirectly speaking about its law. Its purpose is such the organization of a society, i.e. the people of that state, by obliging them to observe certain rules. Supreme purpose is securing the socalled peace under the law 581 . That means security and order and conditions
579 580

Aristotle, Politics, I, 2, 35 The English Language provides another illustration. A policeman, a sheriff , i.e. the most obvious representatives of a state, are sometimes called the law. See: the Oxford English Dictionary, as cited 581 From Plato onwards, in Aurelius Augustinus, De Civitate Dei (e.g. Book XIX, Chapters 10-14) and closer to us, instead of many, Thomas Hobbes, On the citizen (De Cive), 1642, ed. and translated by R. Tuck and M. Silverthorne, Cambridge 1998, preface to the readers, p. 9, p.55 (point 31), p.69 (point 1), p.70 (point 3), p.72 (point 6); Leviathan, 1651, ed. Michael Oakeshott, Oxford 1946, Part. II, Chapt. XVII, p.109, 110,112

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conducive to them (safe existence, health etc.) of the members of that society and in an international world one could add, including their foreign guests. That includes precisely on this behalf also the protection of the basic individual interests. All this is done by the administration of justice, i.e. the application of the law in particular by the law courts in the form of judicial decisions or judgments and if necessary their enforcement by special law enforcement departments of a state, such as e.g. the police. That refers to the administrative, functional meaning of the word. Yet the primary sense of the word is Justice in the sense of that which is just, that is, comparable to equity and fairness. Therefore the administration of it is supposed to have to do with it. Obviously Justice is thought to be conducive to peace, security and order. The concept of Justice can thus not be dissociated from the concept of law. Such the general concept of law does indeed include the one of justice. Already this shows that it is the addition of rules to the mere power of an authority in a community, which represents a major advance under the aspect of civilization. Lets be aware also in view of later exercises around the term law that we deal here with an and-and relation not with an either-or one. Not only does the law represent a warning before power is applied but it clearly says in which cases that might happen. The second considerable advance under the aspect of civilization is the further fact that there are not only rules in addition to power but that they are supposed to be of a specific quality, namely that they are just. Due to that they are supposed to be generally and individually acceptable. The latter fact refers to a certain extent to the quality and meaning of Justice in the primary sense of the word. The history of the practice of modern states shows this difference exemplarily. The ordinary case of law making is supposed to include all interests and to do them justice under all relevant aspects. But there is also an extraordinary one. It is called emergency laws. It concerns those specific legal rules which are adopted by a government in a state of emergency such as war, famine etc. They may consist in the temporary abolishment of ordinary laws in existence. In a state of emergency a government is usually not bound to observe the ordinary rules of lawmaking but it is allowed to take those measures it judges appropriate in the light of the main goals of the state, and that can concern its very existence. It is not so that emergency rules should not be just, much to the contrary, but a government cannot go through the consultation with everybody concerned beforehand. In ordinary times the adoption and the enforcement of such legal rules could be considered tyrannical, a tyranny being that type of regime, where not all relevant interests are considered nor a general principle of justice observed 582 . Constitutions of States of Law 583 usually mention the cases and
582

See e.g. Solon about the tyrant Peisistratos, as cited in Diognes Laertios, book I, 67. In the light of history it may however be questionable if Solon was not a little too harsh in his comments on Peisistratos, or a little envious. 583 We use this term deliberately in the sense of Etat de droit, Rechtsstaat as the term rule of law seems not always to confer the meaning bound by the (statutory) law but some kind of

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conditions under which recourse may be had to emergency rules. Under the above aspect these prove to be incomplete rules, yet appropriate in the light of a given situation, i.e. legitimated by the facts and legal in the case of the mentioned constitutions. Ordinary rules which fulfill both of the above criteria can be called complete under the aspect of civilization and justice. That is worth repeating: a) Emergency laws are the exception, not the rule. b) Law in a state of civilization 584 means thus first of all two things: 2) There are preexisting general rules and they state, if and when sanctions (power) are applied 3) These rules try to convince the ones concerned, because they are just, such making the stress of sanctions avoidable That is the shift from the assumption of a mere reflex-reaction (fear of the domination of somebody stronger) to that of an understanding. That is the shift from a state of nature to a state of civilization. It is to be added that there are views, which do not treat the rule character of laws to be of major importance, but more the decision making in the course of the application of law, i.e. the so called adjudication. As countries organized as state of law (rule of law, rule by and of the law, tat de droit, Rechtsstaat), i.e. destined to function according to the rule of law, are the dominant reality in main regions of the world, it seems useful to look first at the rules and then at their application. Others like to turn the matter around and speak first of the order and to consider the rule as part or means of the order585. It is suggested here to look first at the cause and then at the effect by naturally keeping the purpose in mind. That has the further advantage to allow the formation of a more or less coherent picture of the dealt with reality. It may then be easier to gain access to other lines of thinking, including the more than abundant free theorizing about the matter. It remains however of importance not only to look at the aspects of the application of the laws but at their coming into existence before that. That aspect explains many differences of opinion about the matter. See below.
judicial authority. It just means that not the individual person of the judge, but the legislated law is the authority. 584 The reference to something like civilization in such a context is certainly not farfetched as one of the staunchest American-realists, Oliver Wendell Holmes, cannot help to invoke such an obvious standard at the end of the first World War, out of Natural Law in: Harvard Law Review, 32 (1918), 40; cited by Kelly, op. cit., p. 377 585 as reported by Zppelius, Rechtsphilosophie, p.180

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Yet it shall be mentioned here that there is an old English tradition, which seems to deal with the law, i.e. the statute, on one hand and the action of the judge on the other and that on the same level.586 We hasten to underline that we clearly distinguish here between preexisting published rules (or well known customs etc. as the case may be) and the mere verdict of a Judge and that we understand the latter to be based directly on the former in that what we call Government based on the rule of law (i.e. a State of Law, Rechtsstaat, Etat de droit). A judge alone, even if he is impartial etc. does not make a modern rule of Law. The above, peace, security and order are the main or general purposes. Specific ones come on top of that. Examples for the latter are e.g. zoning laws, laws dealing with construction specifications, e.g. with respect to structures, materials etc., service regulations for the public service, rules concerning the composition and control of tap water, regulations concerning the financial market. As pressure and interest groups tend to influence legislation, a fact, which may raise elementary legal questions as such, special purposes become more and more specific and the danger may arise that they are slightly or sometimes considerably contrary to the general ones. Yet in the hierarchy of purposes and functions the general ones are at the top for the obvious reason that they are most often more important than the specific ones. There may however be exceptions, but they require adequate reasons. One can find sometimes other more general purposes being mentioned together with peace, order and security, such as equal distribution of wealth, direct participation,587 yet it appears that they do not have the functional impact as the first ones mentioned, as e.g. Hobbes but also Bodin and much earlier Augustinus and again people having experienced the 20th century have learned the hard way in times of war, civil war and state crimes. Without peace such other purposes could hardly be considered at all. With the concrete establishment of a legal system and in particular in the daily life of a state it is however certain that all these purposes have to be considered appropriately and coordinated, one in the light of the other. The above presentation of laws purpose could be called static, while one could present it also under a dynamic aspect. Such an aspect emerges by looking at the fact that law deals with life, the living nature of man and society, and especially in younger times, with the whole of nature. Law deals with existences, positions and interests of living beings. Law has regard to their actions. Action, toleration and omission, actual, probable or possible are typical schemes, which are constantly under consideration by it e.g. as allowed, or organized and structured or forbidden. It protects existences, legitimate positions or interests.
586 587

see: Magna Charta (1215) chapter 39 or the Bill of Rights of 1628 Zippelius, Rechtsphilosophie, cited above, 123

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It constantly does protect the weak, the correct, the healthy, the functioning against the bully, the negligent, the perfidious, against the liar, damaging and destructive forces. There may be system-alien exceptions. Pressure group instigated laws e.g. may sometimes seem to be in danger not to get that full picture. That then could be reason enough for a governmental or a parliamentary action if duly recognized. Yet, that simple statement of the obvious says much about the law and even more about human nature. While e.g. stock-market analysts tend to make a pertinent statement about human nature by saying that man has difficulty to be pessimist as everybody speculates easily on an upswing of the stock market but ever since has much trouble doing the same in a downswing, our law makes an even more pertinent one. It proves that we care fundamentally for life, for truth and the aspect of responsibility. That appears at once if one thinks of the universal human rights, of criminal law, of the vast field of contract law, the law of torts and many others. It may be because of these undisputable facts that we do not stop to produce conversation after conversation, library after library full of books, journals and newspapers about all that, which goes against it. We seem indeed to care for the exceptions. They obviously prove a rule. This second aspect leads to further considerations on the dynamic character of rules, as they naturally, by their very existence, cause not only specific but also general effects. If these go against main purposes, adjustments are needed. An example: While it is a systematic necessity to state the principle of equality among all men, we know that men are not equal, neither in their actual positions, nor in their talents, nor necessities, nor preferences and so on. The latter is a factual statement, while the former is a legal one. Under the law and with regard to their legal position all men are equal. That principle is usually followed by the addition that equal things have to be treated equally whiled unequal ones have to be treated unequally. That is not an attenuation of the first principle but a specification. Problems however arise nevertheless. Factually unequal people enjoy their rights and freedoms. This happens to show materially. They duly accumulate more riches than others. The law of inheritance allows a transfer of those to younger generations. Instabilities may arise due to too accentuated factual inequalities. One should never forget that one lives in the same times and places. These create factual constraints towards equality. Thought to the end: There would not be such a legal principle either if it had no factual component. More than one legal discipline has to do with such problems. In general one could say that the welfare state of the postwar (re: World War II) years created many a law under this aspect. Labor laws, housing laws and similar statutes deal with such facts. The idea of a well functioning public life, too often just seen under the economical aspect only, leads to the care for the weaker also through legislation. Yet, as was said earlier, law has to do with living matter and seen like this it is in itself living (the popular-culture- tag would read: law for life, law of life or living law). Such the requirement to observe the development of a legal

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system and to keep it coherent with the initial purposes and basic principles never ceases. A brief comment on some current ways of thinking, speaking and writing about law: As it happens there seem to be many considerations which do not so much look at the principle and conceptual aspect of law but very much at the persons that deal with it and of its effects. One could call that a more or less sociological view. There appear statements, which seem to be disillusioned or uncovering the unexpected, by representing legal goings on in a way that is rather contrary to the concept of existing constitutions, by being unaware or without admitting that they want to speak of something else or that they do not dare to criticize that concept. It cannot be dealt with here with the daily growing number of such publications because it is more or less the conceptual substance of the law we are after here and because it is beyond any question to deal here with the ordering of critical statements with regard to their importance and meaning in the light of the relevant legal constitutions. As said elsewhere it is our task here to provide a concept based on the main traits of development, including the classical terms and notions in the context, which are helpful, if not absolutely necessary, to analyze any actual and surrounding discussions. We are furthermore not looking for an exciting presentation of the matter but of a fair and relatively objective one, not excluding thereby that the latter is sometimes indeed intellectually far more exciting. K) Some other remarks on the term/word/conception of law and further elements of a definition The English term law seems to come from Old English lagu for something laid or fixed, such as e.g. a share in an undertaking. 588 It seems even that it is common to various languages that the word law has to do with that, which is laid down, placed, set (Law, Loi, Gesetz, etc.). The Oxford Dictionary adds that Latin lex is generally not believed to be cognate, i.e. directly related to law, yet lets follow the addition: As law is the usual English rendering of Latin lex and to some extent of Latin ius its development of senses has been to some degree affected by the uses of these words. As English and Latin belong to the same Indo-European language family such an assumption seems not to be farfetched. Indeed as we found above justice is a functional part of the English concept of the term law. Developments in Roman Law showed an evolution in the same context of the terms Lex (Law),Jus and Rule, Lex having meant in early

588

The Oxford English Dictionary, II ed., 1989

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times declared law, while Jus referred to customary law crystallized out of decisions.589 Another signification of the word law stems from old English jurisprudence referring to an oath as in to wage ones oath or to lose ones oath.590 There seems to shine up another direct reference to the principle of Truth and furthermore to the following: The term law appears also in Scotland, but with an apparently different meaning. There it is said to be derived from Gaelic leach, which means a stone or stony ground and became hill or rock in Scotch such as e.g. in Dundee law, Berwick law or Largo law.591 A hypothesis could be that places where oaths were sworn, e.g. by witnesses in legal proceedings, where law was adopted, declared or applied had often to do with a hill, a mound, a rock or a stone. In this context there is the view by a Doyen of Roman law that the word ius is not to be searched for in lex (law) but first in the court, i.e. the place where the court sat in judgment,592 a view that seems to be accepted knowledge,593 as that fits with both of the above. There is the further distinction that ius meant that which is just between men (as in the negation iniuria, i.e. damage), while fas was the latin/roman word for that which is just with regard to the gods (as in the negation nefas, i.e. sacrilege, dastardliness, sin). 594 From this it can be inferred that the sentence of a judge or a court, became in due time a conscious reality in itself and apt to be appended with qualifications such as good or bad, just or unjust. Then there is another fact. English has such one word using the root for binding and one using the root for just. Yet English thinking has always been influenced by the goings on in other parts of Europe. There is, e.g. in France and Germany, one word which covers both aspects, le Droit (French), das Recht (German), with the first meaning straight (German: recht, e.g. in Rechteck, gerade, French: droit, i.e. upright, Latin: rectum) both corresponding to the meaning of just and in their general meaning including the totality of existing laws. They are related to the Anglo-Saxon Right, the meaning of which has in Britain exclusively centered since on individual legal positions, a meaning, which is also covered by the terms Droit and Recht but also in the notion correct, close if not synonymous to just. Right is considered to come from old Indian Rita (see below) and to be
R.W.M. Dias, Jurisprudence, 5th ed., Butterwords, London 1985, p. 47/48 referring to Stein Regula Juris 590 Blacks Law Dictionary, 6th ed. St. Paul, 1990, 884 591 Mackay, Ch., A Dictionary of lowland Scotch, London 1888, republished Detroit 1968 592 See Max Kaser, Rmische Rechtsgeschichte, 5th imprint of the 2nd edition, Gttingen, 1993, p. 59/60. Kaser derives that from the roman use of the word ius, e.g. as in: in iure vocatio (a summons to appear in court or in iure cessio (an assignment/transfer before court) 593 See Dias as cited above, referring to Stein Regula iuris. 594 Kaser, op. cit. p. 60
589

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related also to Rite, both having to do with rules of conduct. While it is common in our languages, as mentioned above, that we often name things after their purpose, a screwdriver e.g. is called so because it is an instrument for driving screws, the same fact can cause headaches with regard to abstract things. Le droit, das Recht both addresses the rules, which are binding but not by referring to the idea of binding (such as in lex, law) but by addressing them by the name of their purpose, i.e. that which is straight and creating justice. The act of binding meets in this context the idea of justice because the first is in the case of laws (droit, Recht) there for the second. Justice is the purpose of that kind of binding rules. As shown above, that applies to ordinary laws or legal rules. It does not apply to the same extent to extraordinary laws, a very crude form of law, where that word is associated with peace and order alone. Therefore: 4) Law is that instrument or tool by which peace and order are sought through justice. We do not strive here to find some kind of logic definition of law. Yet if we add that this instrument consists of binding rules among humans 595 we get a little closer to something like that. Aurelius Augustinus or Jean Bodin or Thomas Hobbes out of the turmoil of their world might stress that no term makes sense in this context without being backed by consequential force and power, i.e. an authority that is ready and capable to enforce the binding effect of the rules at any time. Yet the necessary characteristic is only that the rules are kept, applied, whether by common consent or by authoritative enforcement happens to be secondary. In the reality of human societies it may be practically excluded that one could do without enforcement. What is secondary logically becomes primary practically. And that practical aspect plays an enormous role in some perceptions, which tends not only to overshadow the element of justice entirely, but to erase it. From this follows a third rule regarding law in a civilized state (see the first two in point 8 above): 5) Law concerns binding rules, be it due to common consent or due to a legitimate coercive power or due to both. It appears at once that the falling together of the origin of consent and power represents the main feature of a democratic, from demos (people), i.e. an all including state. We have seen that the same feature is part of the idea of Justice. It is mainly in times of human and social troubles that the two above meanings may fall apart. That happens when a lawgiver and/or ruler stresses the binding
595

In the history of thought about law there have been discussions whether rule were a sufficiently appropriate term or whether one would not better speak of norms. Both are alternatively used here, with the same meaning.

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character of his rules while persons concerned by these rules may contest their justice. While peace is sought by the administration of justice through the instrument of binding rules, the idea of justice may in exceptional cases have retreated behind the mere use of binding rules to create peace, a precarious peace in that case. This has for these obvious reasons lead to much thinking about the subject in the past. It would seem that it is then less the terms law or justice which are in question but the way they are used or misused, yet that tends to directly reflect back on these terms, as the use of them influences on their meaning. But the question has to be asked whether the possibility of misuse or the real, even repeated occurrence of misuse changes anything at the proper use. Not really, has to be the answer, as it is widely known that everything can be misused and yet most things have usually a proper use. And, it is the rule we are primarily asking for here not the exception. Moreover we are aware that exceptions may by their very existence just confirm the rule. It is thus to be repeated: There has been mentioned some defining traits of laws. Two specifications or premises were necessary. Ordinary laws and not emergency laws were the yardstick. Laws in civilized states not travesties of socalled laws in rogue states were dealt with. L) On the Normative and thus Imperative Character of Law It has also been clearly shown above that laws are normative statements, i.e. imperatives. They are not indicative statements of facts. Power is a matter of fact, which can back a norm, but the norm remains nevertheless normative. Leibniz showed clearly that power is a matter of fact but that a legal rule is not of factual but of normative quality. Thomas Hobbes statement: Auctoritas non veritas facit legem. (Authority not truth constitutes laws), is the result of a time of emergencies, of emergency laws. It is true in emergency cases, yet precarious at all times (see to that also Radbruch above). And Kant clearly called it one of the exceptional cases in law, enforcement devoid of law (Zwang ohne Recht). Hobbes deeply influenced by the exceptional state of affairs in his time, was probably not aware that he spoke in all likeliness about the exception not about the rule. His statement is thus not true generally as has been shown. But laws remain for practical reasons enforceable rules, i.e. with the potential to be enforced. They remain however valid even if that is not the case. Any disrespect constitutes nevertheless a violation of that law and it is punishable if power is reinstated. The normative aspect remains intact even if the factual one lacks. Yet that applies only if they are not formally or factually abrogated in the meantime.

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M) On the Authoritative versus Conventional Nature of Laws The above answers the famous question referring to the authoritative or conventional nature of laws to a considerable extent.596 Both apply. There are ordinary and extraordinary laws as there is ordinary Justice and there is the restricted, extraordinary form of emergency Justice. That there exist limits also for the latter form of Justice has been shown. Laws seem always to issue from the legitimate public authority, i.e. a legally qualified government or parliament or both. These institutions do rarely exist without at least a tacit factual consent by a majority of the ones concerned. So the conventional aspect of lawmaking is never far away and certainly not when laws are issued by elected representatives. Yet, as said, there is another special case in ordinary lawmaking. It may happen that a government/parliament has more information and can afford a more objective view and enacts laws which are, even after abundant information, not (yet) understood by a majority of the people concerned. That should be the exception not the rule, but it can happen. No blame can fall on such a law if its beneficial nature and purpose is clearly established in an objectively reasoned way and made publicly known. Still it may depend on public acquiescence. As to make clearer what we are talking about let us look at two specific examples: There is a legal institute called constitutum possessorium (i.e. the leaving of the instrument of a chattel pledge in the hands of the creditor). That happened to be a custom in Japan. It later (in the 19th century) had adopted a new law forbidding this. That could never be applied as the custom of the population was more resistant, which was finally accepted by the Japanese courts of law. 597 In Switzerland of the 19th century there has been a law concerning company names (firms) with a ban on the inclusion of family-names. That turned out to be untenable due to the resistant view of the ones concerned, which lead to a revision of the law.598 This shows that the reverse is possible, i.e. society taking the lawmaking authority back from government. These examples might even serve to show that in the end it is the people who hold power and that it is thus them, the source of Sovereignty. Old China put that in different words. It said: The official mandate of government is not guaranteed. The Mandate of Heaven may be withdrawn.599 This Heaven (once it moves people) happened to come close to Earth with our
596

See above on the asceding or descending theory of government in the Middle Age; and also Wieacker, op. cit. 597 Wang, T.C., Les Sources du Droit Japonais, Geneva 1967, p. 187 598 Tuor/Schnyder, Das Schweizerische Zivilgesetzbuch, 10th ed., Zrich, 1986, p. 35, 45ff. 599 See the Shoo Qing, Book of History of Ancient China

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modern mass media and their considerable power. This sharpens the view for the transition of power from Society to a qualified Society, the State. This can be an either/or transition. Or, it can be an and/and transition. The latter is the one required by Radbruch and indeed by reality, where society backs the law by its own vivid and original acceptance and respect, i.e. its genuine consensus. It follows: 6) Laws emanate from the totality or majority of the ones concerned or from an authority legitimized by them. Yet it has to be added that the practice of government shows, that it has to act, e.g. to pass laws, once a necessity has become evident. Society may lag far behind, not at all seeing that fact or being strongly opposed. Government means precisely also these cases, where conditions are not as easily aligned as in theory. As long as it is legitimately in place a Government has to defend its case, to inform and to convince, sometimes even starting with vested interests. There a Governments natural and intellectual and sometimes technical authority shows and last but not least, good teamwork. N) On a specific, historical type of the emergence of legal institutions In the Europe of the Middle-Ages a growing number of legal norms started to emerge e.g. when cities with their guilds of traders and craftsmen and gained or obtained charters from the formally superior political authority, usually a territorial overlord, stating rights and duties. These charters became shaped against the authority. It need not be thus, but in the European Context that was the way an important number of legal norms came shaped and into being. They evolved and transformed up to the time of the Enlightenment into full catalogues of individual rights and duties. It can be asked if they had fully emerged without an authority on the opposite side. It were a confirmation of Hercalitus famous statement that The Contrast is the father of all things, what is not subscribed here in that general sense. But under the aspect of the origin and nature of rules and concepts of legal positions, rights and duties, it is of importance to see that the human mind needs an occasion, a cause or a reason to conceive such concepts. It is however of no use to count on unrest and dissensions as to help such concepts to emerge. Different spaces know different conditions. Yet trade and contract law are of rather universal use, containing much if not all to derive further important legal concepts from that.

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O) Law or Virtue We have encountered above four origins of laws and of new laws: 1) the obvious necessity of a rule, 2) a single event or person influencing public understanding (Antigone), 3) the arrival of new groups of people in a polis (Sophists), 4) the society-wide change of knowledge and values (Renaissance; and again during the Enlightenment). This emergence can be helped by specific contrasts as the ones described just above. All these emerge institutionally mainly by two different ways, either through a) practices and customs or b) directly by new laws. That alternative has shown up in a more coordinate way under the above title authoritarian or conventional nature of laws. But earlier it emerged also as successive steps and thus presents the same aspect in another light. E.g. in China of the 4th century BC societies grew in numbers and the parental ties holding them together became weaker. It showed that the sole reliance on virtue, i.e. customs, manners and rites became precarious. That is when the famous and notorious school of the Legalists appeared. This school developed a new, utterly pragmatic methodology for the then governments and part of it was the general reliance on laws as instruments of government. Laws were seen as an un-personal, neutral, objective and all inclusive means. That is more or less the case even today. It happened to considerably increase the efficiency of governments with the far reaching consequence that a large country became united 150 years later. But it also created social havoc as people were not used to such un-personal means of government and as traditional distinctions, privileges and possessions were no more considered. The Legalists threw out the baby with the bathwater, with an utterly brutal enforcement of the laws and ferocious punishments such that they are hated to this day. As experienced voices said even then, one could arrive at an even higher degree of efficiency by combining the advantages of laws with personal virtue.600 That is in any case what the past has taught in East and West and what has become a major ethical and legal tenet as mentioned above, even reinforced by the younger past. Both are necessary and Laws and Virtue, i.e. the personal and individual knowledge, respect and conviction, supporting the law.

See to all that: Fung Yu-Han, A short history of Chinese Philosophy, Mac Millan, 4th ed., New York 1958, 160-62, 165; Waley Arthur, Three Ways of Thought in Ancient China, Allen & Unwin, London 1939, see part three about the Realists, e.g. 223 seq.; The Complete Works of Han Fei Tzu, ed. Liao, W. K., Probsthain, London 1939, 14, 155-160, ch. XIX, 168, ch. XX, 169 seq., ch. XXIX, 278; The Book of Lord Shang, ed. and commented by Duyvendak, J.J.L., Probsthain, London 1928

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P) Summary To sum up what has been said in this chapter, but far from implying that all were said: 1) A binding rule among humans, is in principle a sufficient definition of the concept of law. However it has been referred here mainly to social rules under the rule of law, i.e. in the framework of a State. Legal rules are concretizations of the principle of Justice.601 Legal rules are normative statements. Legal rules establish that which we call the State. Legal rules are major instruments of the State. They are binding. Legal rules are general and preexisting rules. They are that instrument by which peace and order are sought through justice. They try to convince by being just, thus making avoidable the stress of sanctions. They say if and when sanctions are applied. They imply a general consensus/agreement of the ones concerned (often expressed by representatives, e.g. parliamentarians). That consensus/agreement has to be reasonable and just.

2) 3) 4) 5) 6) 7) 8)

9)

10) 11)

12)

601

One has to have read the above text to understand that statement.

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IX A brief reference to Methodology

Under the active aspect of Justice (as in virtue and duty), i.e. the administration of Justice, the subject of execution is of utmost importance in consideration of the substance of Justice itself. Moreover the requirement of verification is fundamental under the title of Law and Justice. And execution and verification refer to methods and methodology. That is an aspect of First Philosophy (see above). Two methods are most instrumental for the correct (just) endeavor to Justice 1) Interpretation (Hermeneutics) referring to facts including laws and 2) Argumentation (Reasons, Rhetorics/Topics). They have to be prominently mentioned here but they cannot be looked at further here as they refer mainly to the application of Justice and not so much to the nature of Law and Justice which is the subject here.

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X Conclusion
I) It is clear that the description and explication of the nature of Justice and that of the Axioms of Law and Justice happen to be the main fruit of the present work. The consideration of Ethics is a prerequisite and the brief consideration of laws and the even briefer reference to methodology are but a consequence of that. Ethics gives an idea of the full realm of human Justice and Laws are its concrete expressions. II) What has been distilled from many sources and stated here with great emphasis seems to have been known to a considerable extent since man organized himself in a structured society. The Babylonian State of Hammurabi already said that he had been chosen to rule the land, to eliminate the mad and the perverse, to hinder the strong oppressing the weak and to establish truth and justice and to assure the prosperity of the people. (See: the initial text of the mentioned stela in the Louvre, Paris, as exposed, e.g. by 2001) III) Thus one has to console oneself with another consideration: Everybody who believes, that he has something to say to the ethical self-contemplation of society and the individual is entitled to talk, although the time has advertised political and economic questions. What seems out of date (unzeitgemss) is in fact up to date (zeitgemss). Any thinking about ethics causes a rise and vitalization of ethics. (Albert Schweitzer, referred to by Dirlmeier in Nikomachean Ethics, Reclam, Nachwort) IV) And again: We do not philosophize as to learn what ethical value is, but to become valuable men. (Aristotle, Nicomachean Ethics, Book II.2.1).

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ISBN 2-88362-003-8 Alpha Grammata Editions, Dr. iur. Mark Schar (Walter Markus Schar)
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