By John Kenga, LLB (Hons)
INTRODUCTION
Justice
is a commonplace term that is used almost on a daily basis at home, at forums
and at the office. It is a catchword in legal cycles and court officers
especially advocates and prosecutors use it in making arguments to advance their
causes in courts. Often you hear statements like, “Justice delayed is justice
denied,” and “Justice demands that…”
HISTORICAL CONCEPTIONS
The
term justice has since time immemorial preoccupied the minds of philosophers
and scholars. These include Plato who was an ancient Greek philosopher who
wrote down the thoughts of Socrates. In the Republic,
he looked into the then prevailing perspectives on justice and dismissed
them as insufficient. Plato, in an imaginary conversation with Socrates,
Cephalus defined justice as “honesty in need and deed”. He seemed to suggest
that justice was the same as telling the truth and paying back what one has
obtained from others.[1]Even
with that definition Socrates conceded it was not comprehensive as it could not
cover all situations amongst different people in various places with certainty
and exactude. Since the time of Plato, other philosophers and scholars
belonging to different schools of thought such as naturalism, positivism and
realism among others have attempted to define the term and their definitions
appear inconclusive and contestable.[2]
THE CONVENTIONAL DEFINITIONS
The
conventional definitions of justice are found in law dictionaries which espouse
Anglo-American thought and morality. Justice is given a number of definitions
such as the fair and proper administration of laws,[3]
fair treatment under the law,[4]
and a moral ideal that the law seeks to uphold in the protection of rights and punishment
of wrongs.[5]
From these definitions, it appears that justice is synonymous with fairness
that is arrived at through the use of laws in settling disputes in society.
It
follows from the definitions that the law is the agency, mechanism and
instrument of achieving justice. This is however debatable because it is common
knowledge that legislatures across the world have enacted laws that caused
immense suffering and destruction to people and livelihoods. Law makers and
enforcers of the law are sometimes motivated by expedience and convenience with
the consequence that bad laws are the end result. At times laws are made with
the object of protecting the status quo and also preserving the interests of
the ruling class. In both instances, it can be vouched with accuracy that such
laws are skewed and convoluted in favour of one section of society at the
expense of the others. This conundrum calls for quests at redefinition of the
term justice.
This
essay will examine the dictionary definitions of the term and attempt to show
how it can be redefined. In so doing it will seek to answer the following questions;
what is the attempted “new” definition? Is it possible for an unjust law to be
used to arrive at a just decision? How has the present definition been used to
justify injustices in history? Each of these questions will be addressed in
turn as follows below.
THE ATTEMPTED “NEW”
DEFINITION.
It
is argued in this essay that justice is ice! That is, whatever we know as
justice has the traits of ice. Ice, as you and I are aware, melts into water
when heated and turns back into ice through freezing. In other words, justice is just that, just-ice! That
is there are principles, tenets, doctrines, ideas and concepts that for many
years were upheld as eternal verities only for them to be turned on their head
when the heat of change made it difficult if not impossible to continue
espousing them. The heat of change in peoples perceptions had turned them into something
else!
Justice
may also be redefined to mean just as I see! ‘I’ is used here to denote state
organs such as the Executive, Parliament and the Judiciary and the officers
manning them who perform their duties collectively as institutions and
individually as elected, nominated or appointed representatives of the people.
Therefore, when the president, the parliamentarian and the judge decides on a
certain cause in the name of “justice” it may not always be just in the right
sense of the word as fairness, equity, equality, fair play, morality,
meritocracy and good conscience.[6]
This attempted definition emphasizes the role played by an individual’s
attitude, world view, interest, background and knowledge of world history in
arriving at a decision or making contributions towards the making of a
collective choice which has the force of the law. Justice is just that, just as
I see it!
UNJUST LAWS AND
FAIRNESS.
The
question that arises and which needs an answer is, if justice is fair treatment
under the law, can there be fair treatment under unjust laws? It is submitted
that the right answer to this question is an unequivocal NO. This definition of justice is positivistic to the extent that
it considers law to be what it is to the exclusion of other factors including
its impact on society and how it was made.[7] As
such it can be used to legitimize racism, slavery and slave trade, colonialism,
and the despotic regimes of Hitler and Mussolini in Germany and Italy
respectively.[8]
Dictatorships elsewhere are equally legalized by this definition
notwithstanding their dehumanizing effects on society. Therefore, slavery and
colonial rule can be better explained as “just” by using the attempted “new”
definition. They were as just as their perpetrators deemed fit, justice is just
as they saw it! This was for instance, in accord with their plundering mission
christened the “civilizing mission.”Circumstances
changed when the victims of these practices could not take it anymore. They
fought a bloody war to secure their humanity from the claws of the “big
brother” intent on making profits by any means using all methods in total and
flagrant disregard of their rights. Hence millions of Africans were pilloried
for centuries and the continent plundered of any available resources.[9]
It
seems also that the continued subjugation of women in the 21st
century is justified going by the dictionary definition of justice.[10]
Patriarchy and his brothers’ sexism, discrimination and inequality are embraced
by the same definition notwithstanding the negative effect they have had in
alienating and relegating more than half of humanity to the periphery.[11]
Under the umbrella of patriarchy, women were denied the right to vote, the
right to own and dispose of property and the right to be themselves as humans
under the doctrine of coverture!.[12]
This
state of affairs is also explainable using the attempted “new” definition.
Subjugation of women has lived longer than any other system because the powers
that were and whose vestiges remain entrenched in our midst have used the law
to perpetrate and justify its continued existence. Laws denying women their
basic rights were enacted by parliaments dominated by men, enforced by an
exclusively male executive club and interpreted by a jury of men in white wigs!
In
this pattern, there is a travesty of justice from the starting point.
Parliament is dominated by males where there is no woman representing her kind
and if present; they are a tiny minority whose voice is drowned in the
chauvinistic tendencies of the August house! The executive club then proceeds
with glee to implement such laws in a draconian manner and with an iron fist.
Any real and imaginary intransigence is crushed ruthlessly. As if that is not
enough, the jury of men in white wigs appears and rubber-stamps the justice…injustice
initiated by honorable members…! There can be nothing like fair treatment under
unjust laws, but who cares now that justice is as we, the learned justices see
it!
CONCLUSION
This
essay has looked into how the term justice is defined in a standard law dictionary
and noted the inadequacies inherent in the Anglo-American idea of justice. Just
saying that justice is fair treatment under the law is skewed at best and
paternalistic at worst. An attempted “new” definition was offered and it was
also employed to explain major experiences that for eons were deemed just and
justified and left indescribable scars on the face of the earth and on the
souls of many people. These conditions imposed on humans by their fellow humans
include the horrendous racism, the horrific colonial rule and the horrible discrimination
against the womenfolk!
The challenge is for
scholars of law, judges, law students, human rights activists and the members
of the public to seek a unified redefinition of justice-a term, concept, idea,
and ideal that has been used to justify inhuman conduct and practices on a
large scale.
[1]
Leo Strauss ‘Plato’ in the
History of Political Thought ed. Leo Strauss and Joseph Cropsey (London,
University of Chicago Press, 1981) p. 9.
[2] Dukor Maduabuchi 1997.Conceptions
of Justice. Indian Philosophical Quarterly.Vol.XXIV No. 4: 497-512.
[3] Black’s Law
Dictionary, 9th edition p.970..
[7] Curzon, L.b. Jurisprudence-Lecture
Notes (1995) (2nd edition) Cavendish Publishing Limited, London. Chapters 8, 9, 10, 11 & 12.
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