Wednesday 9 November 2016

A QUEST AT REDEFINING JUSTICE

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..
[4] Bloomsbury Reference Dictionary of Law, 4th edition p.168.
[5] Oxford Dictionary of Law, 5th edition p.142.
[6] Duddington, J. Essentials of Equity and Trusts Law (2006).Pg 49-51.
[7] Curzon, L.b. Jurisprudence-Lecture Notes (1995) (2nd edition) Cavendish Publishing Limited, London.  Chapters 8, 9, 10, 11 & 12.
[8] Ibid.
[9] Rodney, W. How Europe Underdeveloped Africa (1973) Bogle-L'Ouverture Publications, London.
[10] Barnet, H. Introduction to Feminist Jurisprudence (1998) Cavendish Publishing Limited, London.
[11] Supra note 10.
[12] Sir William Blackstone, Commentaries on the Law of England Vol 1 (1765).

No comments:

Post a Comment