John Gardner (University of Oxford – Faculty of Law) has posted The Virtue of Justice and the Character of Law (Current Legal Problems, Vol. 53, No. 1) on SSRN. Here is a taste:
Why should law be thought (by its defenders, by its critics, by
itself, by the public, by anyone at all) to be the sort of thing
which ought to be just?
Now one way of reading this question admittedly makes it a
silly one to ask. Justice is a moral virtue and it is part of the nature
of a moral virtue that anything that has the capacity for moral
agency should exhibit it. That capacity for moral agency is not
only a capacity of adult human beings but also of the institutions
which they create and inhabit. The institutions of law – such as
legislatures, courts and tribunals, police forces, and of course law
firms – count among those human institutions. And some subset
of such legal institutions add up to constitute a legal system. From
this it follows without further ado that a legal system ought to be
just. But so far as it goes this argument entails only that a legal
system ought to be just inter alia. By the very same token it ought
to possess all the other moral virtues too. In view of its capacity
for moral agency it ought equally to be honest, loyal,
trustworthy, humane, temperate, considerate, courageous,
charitable, diligent, public-spirited, prudent, and so on. Yet
somehow a campaign against the law’s inconsiderateness or
imprudence wouldn’t have quite the same ring to it as a
campaign against the law’s injustice. And while philosophers
have long debated whether an unjust law is really a law, I know
of no corresponding debate about whether an intemperate law or
an uncharitable law really is a law.
One of my favorite papers by Gardner–elegant, thoughtful, and deep.