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Chapter 1Law and Legal Justice####### [1] INTRODUCTION ................................................................................................................ 00####### [1] ROMAN LAW ...............................................................................................................

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Chapter 1

Law and Legal Justice [1.10] [1.20]

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INTRODUCTION ................................................................................................................ ROMAN LAW ..................................................................................................................... [1.20] Background......................................................................................................... [1.30] The Roman Republic ........................................................................................... [1.40] The Roman Empire .............................................................................................. [1.50] The Code of Justinian .......................................................................................... [1.60] Impact on Western legal systems ......................................................................... [1.90] Elements of Western law ..................................................................................... NATURAL LAW ................................................................................................................... [1.190] Introduction ........................................................................................................ [1.200] St Thomas Aquinas .............................................................................................. [1.260] John Finnis .......................................................................................................... LEGAL POSITIVISM ............................................................................................................. [1.300] Introduction ........................................................................................................ [1.310] Jeremy Bentham .................................................................................................. [1.320] John Austin ......................................................................................................... [1.330] H L A Hart ........................................................................................................... LEGAL JUSTICE ................................................................................................................... [1.340] Introduction ........................................................................................................ [1.350] Substantive legal justice ...................................................................................... [1.360] Procedural legal justice ........................................................................................ QUESTIONS ........................................................................................................................

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Intended Learning Outcomes On completion of this chapter, you should be able to: 1. Explain the impact of Roman law on Western legal systems. 2. Compare natural law and legal positivism. 3. Analyse and critically evaluate the application of natural law and legal positivism to particular circumstances. 4. Compare substantive legal justice and procedural legal justice. 5. Analyse and apply substantive due process and procedural due process in the context of particular circumstances.

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Introduction [1.10] The chapter introduces the concept of law from the point of view of providing a starting point to the question: what is law? The coverage in this chapter is not, therefore, an attempt to examine any particular area of law. It is an attempt to provide some insight into the question of the meaning law generally in a Western legal system. Various traditions of law have developed over time in an attempt to answer the question: what is law? The positivist legal tradition approaches “law” from the point of view of what the law “is”, rather than what the law “ought” to be. According to the natural law tradition, law must contain a certain minimum moral content before it can be classified as valid law. The legal realist tradition of law takes into account the consequences which flow from an application of the law. The common law is not generally examined as a tradition of law as it is a system of law providing evidence of positivism, natural law and realism. Positivism, natural law and legal realism each approach the question of the meaning of law from different perspectives. Providing an answer to the meaning of “law” consequently involves very much more than merely concluding that law is a body of rules and procedures which ensure order within society through the enforcement of rights and obligations. The chapter provides only a brief introduction to the natural law and positivist traditions because this textbook is not a text on legal theory and any detailed analysis is outside its scope. Legal realism is not considered further in this chapter. The reason for this is not that legal realism is considered unimportant in any analysis of legal theory, but that any consideration of legal realism is outside the scope of this textbook. Consideration of other systems of law such as the Islamic legal tradition is also outside the scope of this textbook. However, the important interaction of the common law in Australia and the Indigenous legal tradition is analysed in Chapter 3.

What then is meant by the term “justice”? Is it possible to define “justice” or does it mean different things to different people? When we refer to justice, are we referring to the concept in a “social” or a “legal” context? An example of the social context of justice is the distribution of welfare payments through the social security system in Australia. Civil proceedings before the court for breach of contract or negligence are examples of the legal context of justice. John Rawls distinguishes between the formal concept of justice and specific conceptions of justice.1 According to Rawls, the formal concept of justice requires that like cases should be treated alike and different cases be treated differently. On the other hand, according to Rawls, specific conceptions of justice produce rules which are used to determine whether cases should be treated alike or treated differently. A specific conception of justice also identifies “what is each person’s due”. Courts should only be concerned with the constraint of formal justice in treating like cases alike as this enables the court to make a legally justified judicial decision. This textbook does not examine any theories of justice because this is not within its scope. 1.

J Rawls, A Theory of Justice (Clarendon Press, 1972) ch 1.

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An analysis and evaluation of the various theories of justice is part of a textbook, and a course or subject, on jurisprudence. However, this chapter does outline the basics of “legal justice” through consideration of substantive legal justice and procedural justice. Before providing an overview of the natural law and positivist traditions, the chapter examines the role played by Roman law in the development of a Western concept of law. The common law system and the civil law system are two of the major world legal systems. While these two systems have important differences, both systems share two fundamental characteristics which form the basis of the Western legal tradition: autonomy and centrality. Morality is also an underlying characteristic, and it forms an important aspect of the natural law tradition. The chapter briefly examines the important characteristics of autonomy and centrality before providing an overview of nine elements underlying the Western concept of law.

Roman Law Background [1.20] According to Professor Geoffrey Sawer, the nations which fall within a definition of “western” for the purposes of the Western legal tradition can be identified without too much disagreement.2 These nations include Greece, Italy, Spain, Portugal, France, Austria, Switzerland, Germany, Belgium, the Netherlands, Denmark, Finland, Sweden, Norway, the United Kingdom, Ireland, all the nations of North, Central and South America, Australia, New Zealand and South Africa. Sawer identifies these particular nations as falling within a definition of “western” for our purposes because in these nations, a Western idea of law can be said to have existed without significant competition from other legal cultures. Before examining the characteristics of autonomy and centrality which form the basis of the Western concept of law, an outline of the historical context in which Western legal tradition developed is important. A starting point is to consider whether, in view of the significant differences between the civil law system and the common law system, it is actually possible to place two of the major world legal systems within a Western legal tradition. The Roman–German Codes of Continental Europe formed the basis of the civil law system. Although the common law developed independently in Britain, its early development was influenced by Roman law.

Although the two systems differ in fundamental aspects such as the adversarial and case-based nature of the common law compared to the inquisitorial and code-based nature of the civil law, each system displays similarities in respect of the scholastic

2.

G Sawer, “The Western Conception of Law” in R David (chief ed), International Encyclopedia of Comparative Law: Volume II: The Legal Systems of the World: Their Comparison and Unification (Martinus Nijhoff Brill, Leiden, 1975) ch 1 at I-26.

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method of studying law, and the function and place of law in Western culture and society. Christianity, constitutional systems based on liberal democracy and capitalism played an important role in the economic and cultural development of Continental Europe and Britain and in the emergence of a Western conception of law.3 The rule of law also takes a central place in the existence of a Western legal tradition. Thus, rules of general application must be known in advance and must not be applied arbitrarily or applied other than by a legitimate tribunal sanctioned by the State. An outline of the influence of Roman law provides the context in which to examine the fundamental characteristics of the Western legal tradition. As this is not a text on Roman law, only an outline is given. Students with an interest in the relevance of Roman law and its impact on the common law system we have today should undertake independent research and consider completing a course on Roman law as part of their law degree.

The Roman Republic [1.30] The date of 753 BC is the traditional date of the founding of Rome. For a period of approximately 250 years, Rome was ruled by a series of kings until the revolt of 510 BC which heralded the commencement of the Roman Republic. The Republic lasted until 27 BC, and it was during this period that the Twelve Tables were written in response to claims that existing customary law was being applied arbitrarily. This customary Roman law developed during the period of reign by the Kings prior to the emergence of the Republic. The Twelve Tables, written in 451–450 BC, constituted the first codification of Roman law and, as such, form a critical part of its development. A major reason for writing the Twelve Tables was the confusion caused by the Republican constitution concerning whether or not certain law was binding on the Roman people. Areas covered by the Twelve Tables included4 proceedings preliminary to trial, the trial, execution, inheritance, ownership and possession, real property law, torts and sacred law.

The Roman Empire [1.40] The Republic lasted until 27 BC when the Roman Empire emerged. During the first 250 years of the Empire, the classical period, the importance of judicial decisions and imperial decrees increased while the standing of law passed by the assemblies decreased. The classical period from 27 BC to AD 223 represented a period during which the Roman Empire had significant political influence over Europe. During this period, classical jurists employed by the State provided advice to the Emperors, undertook legal education and developed extensive literature consisting of detailed analysis of actual and hypothetical

3.

4.

G Sawer, “The Western Conception of Law” in R David (chief editor), International Encyclopedia of Comparative Law: Volume II: The Legal Systems of the World: Their Comparison and Unification (Martinus Nijhoff Brill, Leiden, 1975) ch 1 at I-32. A Stephenson, A History of Roman Law (Fred B. Rothman & Co, 1992) pp 126–137.

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cases.5 The vast volume of literature included textbooks, commentaries, discussions on difficult legal questions, monographs dealing with a particular legal issue and practitioner materials.6 The Roman Empire was divided into the Western Empire and the Eastern Empire in AD 395. The Western Empire was based in Rome, and in AD 324, Constantine became the ruler of both the Western and Eastern Empires. The two most important features of Constantine’s reign were the conversion of Rome to Christianity and the building of a capital of the Eastern Empire at Constantinople which was heavily fortified and protected by surrounding water.7 Constantine died in AD 337, and the Western Empire fell in AD 376 as a consequence of prolonged attacks from neighbouring enemies, a growing divide between the rich and the poor, religious disunity following the advent of Christianity and serious economic and social problems. The Eastern Empire did not experience the problems which brought the downfall of the Western Empire. The Eastern Empire prospered, and in AD 527, Justinian became the Emperor of the Eastern Empire until his death in AD 565. According to Stephenson, “Roman law properly begins with the Twelve Tables and ends with the Code of Justinian”.8

The Code of Justinian [1.50] The Eastern Empire prospered under Justinian with the building of many cities, the defeat of invading enemies and, to a lesser extent, the achievement of religious unity. By far his most important contribution, however, was the codification of Roman civil law through texts such as the Digest, the Institutes, the New Code and the Novels which together comprised the Corpus Juris Civilis. This process of codification involved summarising existing Roman private law, updating it and providing a model of law for the future.9 Justinian commenced the process of codification in AD 528 with the compilation of the Codex vetus, an update of existing legislation. By AD 530, he had published the Fifty Decisions which were decrees abolishing obsolete rules. He published the Digest in AD 533. It was a legal encyclopaedia consisting of a vast amount of complex legal literature. This was a most important development for future legal scholars, but in view of its complexity and size, Justinian compiled the Institutes for the purposes of legal education. Both the Digest and the Institutes became law in AD 533. A New Code was then published in AD 534 to replace the Codex vetus. New Statutes issued by Justinian, and those who followed him, constituted the Novellae or the Novels.

5. 6. 7. 8. 9.

A Borkowski, Textbook on Roman Law (Blackstone Press, 1994) pp 39–42. A Borkowski, Textbook on Roman Law (Blackstone Press, 1994) pp 42–43. A Borkowski, Textbook on Roman Law (Blackstone Press, 1994) pp 17–18. A Stephenson, A History of Roman Law (Fred B Rothman & Co, 1992) p 20. A Borkowski, Textbook on Roman Law (Blackstone Press, 1994) p 22.

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However, the complexity of the Corpus Juris Civilis meant that it could not operate as source of law in its own right without extensive background knowledge and great intellect.10 Consequently, during the downfall of the Western Empire, implementation of the codified law was impossible although it did influence some of the Codes written by the Germanic conquerors of the Western Empire.11 Although simplified versions of the Corpus Juris Civilis in Greek translations were used in the Eastern Empire, over time, the original version of the texts of the Corpus Juris Civilis was no longer used and the texts disappeared. The texts were not rediscovered until the late 11th century when they were found in an Italian library. This rediscovery had an important and lasting impact on Western legal systems and the Western concept of law.

Impact on Western legal systems Introduction [1.60] Taken together with other developments that occurred in Europe during the late 11th and the 12th centuries, the Corpus Juris Civilis formed the basis of the emerging Western legal tradition. As stated in the Introduction to this chapter, autonomy and centrality emerged as two fundamental characteristics of the Western legal tradition. These are important characteristics in both the common law system and the civil law system.

Autonomy Autonomy, as a characteristic of the Western legal tradition, means that law is an autonomous institution which is separate and distinct from other political and social institutions in society. Although canon law played an early role in Western legal thought, the characteristic of autonomy enables law in the Western legal tradition to be thought of as being a separate institution from religious institutions. Autonomy also raises the issue of coherence in legal order as law is considered to be a coherent system capable of existence as a discipline in its own right. The issue of coherence in the legal system is extremely important and is analysed further in Chapter 8. Coherence in a legal system requires that parts of the system develop within the context of the other parts of the system. If coherence within a legal system is considered to be irrelevant, its autonomous nature would be called into question. Arguably, the development and continued existence of an autonomous legal institution depends on an internal, coherent legal order within that institution.

[1.70]

10. S Stromholm, A Short History of Legal Thinking in the West (Norstedts, 1985) p 59. 11. S Stromholm, A Short History of Legal Thinking in the West (Norstedts, 1985) p 59.

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Centrality The characteristic of centrality means that under the Western legal tradition, law forms a central part of social order and change. A coherent legal system forms an essential part of social order as without it, social order would be threatened. Centrality is also important from the point of view of social change in that law reflects social change rather than causing social change. Without doubt, parliaments can cause social change through legislative initiatives. However, as a fundamental characteristic of the Western legal tradition, centrality requires that the law reflects changes in society which occur naturally over time as civilisation develops. Centrality also provides moral authority for the legal system in requiring respect for its existence and integrity. [1.80]

Elements of Western law Introduction [1.90] Over three decades ago, Sawer identified nine essential elements of Western law:12 (1) historical tradition, (2) pr...