By Fiona Barnett
An Introduction to the Concept of Justice
The first edition of the Oxford English Dictionary[1] defined justice as principles of morality, equity, righteousness, truth, integrity, and restitution. By contrast, our prescribed legal dictionary considers justice ‘a concept defined according to the particular philosophical school of the inquirer.’[2]
Western concepts of justice combine Greco-Roman philosophical traditions with Scripture.[3] From Plato to postmodernists, philosophers have debated the existence of a relationship between law and justice. The resultant theories are generally divided into two camps.[4] One camp associate justice with Biblical principles and absolute moral standards, emphasise individualism and equality, and produced classic common law under which Western society had a moral obligation to uphold clear rules of conduct.[5]
The second camp considers justice to be human-made and evolving with society’s changing mores.[6] These theories are soaked in Darwinism, relativism, secular humanism, and collectivism. They successively distorted the interpretation of the word justice until it lost its original meaning. Justice went from a tangible principle to a subjective concept shaped by political agenda, religious affiliation, and previous experience of the legal system.
Australia has traditionally been dominated by positivist and liberalist theories.[7] Feminism, post-structuralism, and ecological approaches have subsequently been influential.[8] Traditional liberalist concepts of individuality, formal equality, and property ownership have been devalued. Fluctuating cultural conventions determine what values inform our legal system in our increasingly permissive society.
Research indicates six-month-old babies possess an innate sense of justice.[9] While the average citizen might hope and trust that our legal system is synonymous with what they innately sense justice to be – it is not. The key principles of justice (equality, uniformity and certainty)[10] are being increasingly ignored. Practical examples of this confront us daily, from anti-terror laws that breach international human rights standards,[11] to unfathomably lenient sentencing for men who rape young children.[12]
Experience drives home the reality that the concept of justice has evolved into the excrement of Orwellian newspeak, a mythical abstract ideal which law students write essays about, and promise to preserve in the forefront of their minds while earning $1000 per hour in their inner city law firms. Only those who have yet to experience injustice can afford to pontificate about an actual relationship between law and a concept that can no longer even be defined, let alone exacted.
Ancient Concepts of Justice
Plato (428-348 BC) believed justice stems from social order.[13] He proposed private citizens forgo individuality and personal rights for a state controlled by a gifted minority who regulate everything from sex to moral thinking.[14] Plato’s ideal society was modeled on Sparta,[15] matches totalitarianism, and inspired Hitler.[16]
By contrast, Aristotle (384-322 BC) believed in natural justice.[17] He saw justice as: transcending local customs and conventions, determined by divine reason, and inherently connected to law.[18] Unlike Plato, Aristotle considered property redistribution unjust.[19] He believed a just society allows citizens to enjoy the private property they worked for. Aristotle differentiated between communicative and distributive justice, concepts roughly comparable to substantive and procedural justice.[20]
Yet the Greeks generally ignored Aristotle’s notion of natural rights for citizens.[21] Women, children, slaves, and non-citizens had no rights at all.[22] The Romans similarly viewed justice as protecting citizen rights only.[23] They adopted Aristotle’s concept of commutative justice to maintain equality of rights between citizens.[24]
Christian Concept of Justice
Siedentop[25] argues that a moral revolution occurred in the 1st Century after the Scriptures introduced the notion that everyone has God-given rights. This revolution inspired Medieval Christian philosophers and canon lawyers to promote individual freedom and moral equality. These men, and not the secular humanist philosophers of the Renaissance or Enlightenment, formed the foundations of Western liberal democracy.[26]
Biblical Christianity considers justice, freedom and law inseparable. Hayes[27] observed: ‘Wherever Christian ideals have been generally accepted and their practice sincerely attempted, there is a dynamic liberty; and wherever Christianity has been ignored or rejected, persecuted or chained to the state, there is tyranny.’
This statement makes no sense if 1st Century Christianity, an individual belief system with no formal organization, is equated with tyrannical collectivist religious organizations like the Roman Catholic Church. Roman Catholicism stems from the pagan cult of Mithraism – not orthodox Christianity.[28] Emperor Constantine I (306-337) changed his title to Pope, and renamed paganism ‘Christianity’.[29] The same organization that fed Christians to lions continued persecuting Christians via a series of Crusades and Inquisitions.[30] This created the premise for the Protestant Reformation.
Because organizations like the Catholic Church have committed heinous acts of injustice, this does not justify condemning the orthodox Christian values that informed our Western legal system.
Medieval Concepts of Justice
Thomas Aquinas (1225-1274) was an Italian priest and apologist for the Roman Catholic Church. Accordingly, the Pope was the supreme law giver, and Aquinas considered laws inconsistent with Catholic doctrine invalid. Aquinas replaced Augustine’s (354-430) idea that unjust laws were not laws, with the notion that unjust laws should be tolerated for practical reasons[31] – that is, submission to the Pope.
Common Law Concept of Justice
The common law system is based on Judeo-Christian principles.[32] Edward Coke (1552–1634) believed God gave humans an innate understanding of the law. Therefore justice manifested in a judge’s ability to correctly discover and apply Biblical law. Just laws were based on, and did not contradict, individual rights and free choice. Coke declared, ‘The King himself should be under no man, but under God and the Law.’[33] He referred to the rule of law, where everyone is bound by fixed and predictable rules. Common law offers protective measures including the right to silence, and the presumption of innocence. Without objective law, individuals are at the government’s mercy. The alternative is the rule of man, which results in tyranny.[34]
William Blackstone’s (1723-1780) Commentary on the Laws of England influenced common law adoption by English speaking countries, plus the American Constitution and Declaration of Independence.[35] Blackstone traced English common law to King Alfred’s Scripture-based legal system.[36] While the 10 Commandments formed a moral premise that was easy for the public to know, Blackstone made the common law further accessible to lay people.[37] Blackstone also promoted inalienable rights.[38] He said England’s Bill of Rights declared three immunities: private property, personal security and individual freedom.[39] The importance of equality and freedom are reflected in Blackstone’s assertion that common law: ‘…gives liberty, rightly understood, that is protection to a Jew, a Turk, or a heathen, as well as those that profess the true religion of Christ’.[40]
Atheistic Concept of Justice
Atheism undermines the notion of a higher moral law. It encourages relativism – the denial of absolute truth and moral code. Without absolutes, morality is determined by social norms and individual discretion, and people have no sense of moral obligation.
Atheist Claude Helvetius (1715-1771) heavily influenced Bentham and Marx.[41] He believed humans are a product of their environment and culture. He said the meaning of life is attaining earthly happiness for the greatest number, not salvation. Helvetius advocated self-love, and valued actions by their public utilitarian use.[42]
Darwinian Concept of Justice
The notion of a higher moral law dominated Western society until Charles Darwin (1809–1882) introduced, On the Origin of Species by Means of Natural Selection or the Preservation of Favoured Races in the Struggle for Life (1859). Darwinism was a pro-eugenics political movement that denied God’s existence, assumed humans are evolving animals, and considered law and justice the product of man’s will that evolves over time with changing social values and conventions.[43] Darwinism influenced Maxism and Nazism.[44] It also influenced secular humanism which similarly assumes only nature and the material world exist, and humans are evolving toward perfection. These theories dismiss natural law and an absolute moral code. They base morality on the nature of human interaction.
Positivist Concept of Justice
Darwinism influenced positivism. In Pure Theory of Law Hans Kelsen (1881-1973) said, ‘The changeover of legal science from natural law to positivism went hand in hand with the progress of empirical natural sciences and with a critical analysis of religious ideology’.[45] Jeremy Bentham (1748-1832) rejected God and natural law, and declared law a product of human will and reason, force and social struggle.[46] John Austin (1790-1859) asserted law is the command of a sovereign who requires full obedience.[47] Hart (1907-1992) concluded that Austin’s theory posed a sovereign threat.[48]
These theorists believed laws are logically formulated by the state to suit society’s evolving needs. They support laws that benefit the majority, causing justice to fluctuate with political whim.[49] The idea that law is human-made separates it from morality.[50]
Positivism makes our courts more concerned with rules and exacting procedural justice, rather than the law’s ethical implications.[51] It ignores individual rights, natural justice, and outcome fairness.[52] Its arbitrary nature makes our legal system susceptible to tyranny. For example, the proposed NSW crime prevention orders ignore rules of evidence, allow hearsay police evidence, and depend on the balance of probabilities (instead of beyond reasonable doubt) as the standard of proof.[53]
Another recent example is the Batterham case [54] which demonstrates how positivism ignores the common law distinction between natural wrongs (like murder) that everyone wants criminalised, and behaviours that the government prohibits but which the public generally accept – like defending one’s baby against a violent intruder. This case also contradicts the common law allowance of proportionate use of force against a perpetrator.
Social Contract Concept of Justice
Social contract theorists tried to reconcile Christianity with Darwinism. A social contract is an agreement people made in the state of nature, before society existed,[55] where the public sacrifice freedom for social order and state-administered justice. Philosophers have different ideas about the state’s role in this social contract.
Thomas Hobbes (1588–1679) advocated absolutism – the absolute right of the state to control the individual.[56] Hobbes’ collectivism was a precursor of modern totalitarianism.[57] He diverted focus from natural law which encouraged altruism, to a sense of entitlement. Unlike Blackstone and Locke, Hobbes was not considered influential, and he made no significant contribution to the legal system; he was rejected by both major parties of his day[58] and Oxford University burnt his writings.[59]
Liberalist Concept of Justice
As a social contract theorist, John Locke (1632–1704) considered the consequences of when a government fails to uphold their contractual obligation.[60] He believed people had rights to life, health, liberty, and property in the state of nature.[61] Locke believed these rights stemmed from God-given natural laws that people could recognise with God-given reason.
As the father of liberalism, Locke’s support for inalienable, individual rights inspired the 1776 American Declaration of Independence, 1789 Bill of Rights, and 1793 French Declaration on Human and Citizens’ Rights.[62] Locke’s ideals are reflected in the legal system via notions of presumption of innocence, procedural fairness, a fair trial, and non-discrimination.[63]
Enlightenment’s Influence on Justice
Unlike Hobbes and Locke, Jean Rousseau (1712-1778) claimed life in the state of nature was good.[64] He inspired Romanticism, an emotive philosophy that promoted a return to the bliss of a pre-civil society. Leftist collectivist ideology originated with Rousseau who claimed rights which existed in the state of nature are relinquished to the state-created general will.[65] Rousseau damned civil society for permitting private interest, claiming this exploits others and detracts from the general will.
Darwin’s theory was previously suggested by others including Immanuel Kant (1724–1804).[66] Kant agreed with Hobbes and Rousseau that humans chose to surrender their rights to the state when they created the state.[67] He said a government has no duty to its citizens, but: ‘It is the duty of the people to bear any abuse of the supreme power, even though it should be considered unbearable.’ [68] Kant based his deontological (duty-based) approach to morality on human reason.[69] While he claimed humans are intrinsically altruistic,[70] a society containing no moral absolutes produces people motivated by selfishness, not altruism.
Marxist Concept of Justice
Darwin, Rousseau and Kant inspired Carl Marx (1818-1883).[71] Marx rejected Christianity, natural law, private property, individual rights, separation of powers, and the rule of law.[72] He viewed law as a tool for political power and based it on the working class’ collective will. Marxism promotes lawlessness via contempt for existing social order and encouraging the working class to violently revolt against government.[73] Marx believed the need for law dissolves once communism is established.
Marx was anti-Semitic.[74] Every application of Marxism has resulted in totalitarianism, deification of a dictator, human rights violations, inequality before the law, and the equal distribution of poverty.[75] This is reflected in mass killings of over 100 million people by Hitler, Lenin, Mao and Stalin. Thus Marxist law has proven to be the antithesis of justice.
Radical Multicultural Concept of Justice
Marxism influenced contemporary theories including radical feminism, critical legal studies, and race legal theory. These theories agree that reality is socially constructed to create and maintain power.[76] They consider talk of justice, universal truth, or objective knowledge, as white patriarchal attempts to gain political power over minority groups.[77] They view law as a socially constructed tool for political gain.[78] They are pro-social justice for leftist political purposes. Their goal is not creating an overall fair legal system or an efficient government, but encouraging minority groups to pursue radical political change.[79] Ironically, these theories promote anti-Semitism.[80]
Collectivist Concept of Justice
Feminism, race legal theory, dialectical materialism, fascism, critical legal studies, socialism, deconstruction, post-modernism, ecological jurisprudence – and any theory that advocates government ownership and asset distribution – are all forms of collectivist ideology. Collectivism purports that individuality is a socially constructed phenomenon, since individuals did not exist in the state of nature.[81] Collectivism is a political-economic movement that subjugates individuals to a group, and forces interdependence.[82] People are grouped by gender, race, class, etc, and this group identity determines whether individual behaviour is right or wrong. Consequently, morality is determined by our common humanity.[83]
Individual Rights Erosion
The meaning of rights has changed to suit collectivist bias.[84] Inalienable, individual rights have been reinterpreted as minority group rights.[85] Because individual rights are devalued, and law is not fixed, individual rights are being overridden by an arbitrary government equally capable of violating, as implementing, rights.[86] An example is the anti-terror laws introduced since 2002. Most were expedited without the usual parliamentary and civil considerations.[87] This undermined the democratic values and rights found in our Constitution, common law, and other legislation. Australia has no federal human rights legislation to ensure anti-terrorism laws comply with international standards.[88] Consequently, anti-terror legislation infringes upon basic rights including non-discrimination, privacy, recognition under law, fair trial, freedom of association, and protection against retrospective law, arbitrary arrest and detention. Historically, such denial of individual rights preceded totalitarianism.[89]
Conclusion
Legal system change starts with the education of student lawyers.[90] Our law texts cherry pick history to support leftist bias; they highlight Marxism but omit its link to holocaust;[91] elevate fascist Hobbes above the father of common law;[92] [93] [94] criticise liberalist notions of individualism, formal equality, and property ownership;[95] favour the abandonment of objective truth, moral absolutism, and a universally accepted standard of justice in preference for moral relativism;[96] and encourage students to care more for the rights of trees than individuals.[97] These authors undermine the foundations of our Western legal system while simultaneously enjoying the freedom and rights this same system affords.[98] Not surprisingly, there is no longer an identifiable relationship between justice and the law.
References
[1] Oxford English Dictionary (Oxford University Press, 1928).
[2] Ray Finkelstein and David Hamer (eds), Concise Australian Legal Dictionary (LexisNexis Butterworths 5th ed, 2015).
[3] Alvin Schmidt, How Christianity Changed the World, (Zondervan, 2004)
[4] Ray Finkelstein and David Hamer, above n 2.
[5] Ibid.
[6] Ibid.
[7] Anne Schillmoller, The Philosophy of Law Study Guide (Southern Cross University, 5th ed, 2014).
[8] Legal Process Study Guide.
[9] Paulo Bloom, Just Babies: The Origins of Good and Evil (Crown, 2013).
[10] Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice, (Oxford University Press, 4th ed, 2010).
[11] George Williams, ‘A Decade of Australian Anti-terror Laws’ (2011) Melbourne University Law Review 35.
[12] AAP, ‘Racing legend Sir Jack Brabham’s son jailed for child rape’, Brisbane Times (online), April 15 2016 <http://www.brisbanetimes.com.au/queensland/racing-legend-sir-jack-brabhams-son-jailed-for-child-rape-20160415-go7a2l.html>.
[13] Cecil Bowra, Classical Greece (Time, 1965).
[14] William McGovern, From Luther to Hitler; The History of Fascist-Nazi Political Philosophy. (Houghton Mifflin Company, 1941).
[15] Will Durrant, The Story of Civilization, Part II: The Life of Greece (Simon & Schuster, 1966)
[16] Leonard Peikoff, The Ominous Parallels (Plume, 1983).
[17] Michelle Sanson and Thalia Antony, Connecting With Law (Oxford University Press, 3rd ed, 2014).
[18] Raymond Wacks, Understanding Jurisprudence (Oxford University Press, 3rd ed, 2012).
[19] James Gordley, The Jurists: A Critical History (Oxford, 2013).
[20] Raymond Wacks, Understanding Jurisprudence (Oxford University Press, 3rd ed, 2012).
[21] William McGovern, ‘Collectivism and Individualism,’ in Felix Morley (ed), Essays on Individuality, (Stratford Press, 1958) 339.
[22] Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Belknap Press, 2014).
[23] Will Durrant, The Story of Civilization, Part III: Caesar and Christ (Simon & Schuster, 2011).
[24] James Gordley, above n17.
[25] Larry Siedentop, above n19.
[26] Ibid.
[27] Carlton Hayes, Christianity and Western Civilization (Stanford University Press, 1954) 21.
[28] Alexander Hislop, The Two Babylons; Or, the Papal Worship Proved to Be the Worship of Nimrod and His Wife (Scholars Choice, 2015) <http://www.ldolphin.org/PDFs/The_Two_Babylons-Alexander_Hislop.pdf>.
[29] Alexander Hislop, The Two Babylons; Or, the Papal Worship Proved to Be the Worship of Nimrod and His Wife (Scholars Choice, 2015) <http://www.ldolphin.org/PDFs/The_Two_Babylons-Alexander_Hislop.pdf>.
[30] Edward Clarke, Commentary on the Bible (1831)
<http://www.preteristarchive.com/Books/pdf/1836_clarke_commentary-revelation.pdf> (Clarke, 1831)
[31] Michelle Sanson and Thalia Antony, Connecting With Law (Oxford University Press, 3rd ed, 2014).
[32] Robert Stacey, Sir William Blackstone and the Common Law: Blackstone’s Legacy to America (American Vision, 2008).
[33] N. D. Arora, Political Science (McGraw-Hills, 2011) 6.2.
[34] Robert Stacey, Sir William Blackstone and the Common Law: Blackstone’s Legacy to America (American Vision, 2008).
[35] Ibid.
[36] Ibid.
[37] Ibid.
[38] Ibid.
[39] Philosophy of Law Study Guide.
[40] William Blackstone, Commentaries on the Laws of England: In Four Books; with an Analysis of the Work, Volume 1 (S. Sweet, 1829)
<https://books.google.com.au/books?id=1BY0AQAAMAAJ&pg=PA425&lpg=PA425&dq=#v=onepage&q&f=false>
[41] David Smith, Helvetius: A Study in Persecution (Clarendon Press, 1965).
[42] Ibid.
[43] Augusto Zimmermann, ‘Evolutionary Legal Theories: The Impact of Darwinism on Western Conceptions of Law’ (2010) 24(2) Journal of Creation 103.
[44] Conway Zirkle, Evolution, Marxian Biology, and the Social Sciences (University of Pennsylvania, 1959).
[45] Augusto Zimmermann, above n 43.
[46] Philosophy of Law Study Guide.
[47] Ibid.
[48] Legal Process Study Guide.
[49] Ibid.
[50] Ibid.
[51] Ibid.
[52] Ibid.
[53] Richard Ackland, ‘We have an Orwellian ‘shadow government’ and your liberty is at risk,’ The Guardian (online), 6 May 2016 <http://www.theguardian.com/commentisfree/2016/may/06/we-have-an-orwellian-shadow-government-and-your-liberty-is-at-risk>.
[54] Belinda Geary and Brianne Tolj, ‘Father is charged with murder after a man who he caught ‘rummaging through his daughter’s bedroom’ dies during attempted citizen’s arrest,’ Daily Mail (online), 28 March 2016
[55] Philosophy of Law Study Guide.
[56] William McGovern, From Luther to Hitler; The History of Fascist-Nazi Political Philosophy. (Houghton Mifflin Company, 1941).
[57] William McGovern, above n44.
[58] Lee Ward, The Politics of Liberty in England and Revolutionary America, (Cambridge University Press, 2010).
[59] Raymond Wacks, Understanding Jurisprudence (Oxford University Press, 3rd ed, 2012).
[60] Philosophy of Law Study Guide.
[61] Lee Ward, The Politics of Liberty in England and Revolutionary America, (Cambridge University Press, 2010).
[62] Ibid.
[63] Michelle Sanson and Thalia Antony, Connecting With Law (Oxford University Press, 3rd ed, 2014).
[64] N. D. Arora, Political Science (McGraw-Hills, 2011).
[65] William McGovern, ‘Collectivism and Individualism,’ in Felix Morley (ed), Essays on Individuality, (Stratford Press, 1958) 339.
[66] Abram L. Sachar, A History of the Jews (McGraw-Hill, 5th ed, 1964).
[67] William McGovern, From Luther to Hitler; The History of Fascist-Nazi Political Philosophy (Houghton Mifflin Company, 1941).
[68] Emmanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right (T & T Clarke, 1887).
[69] Philosophy of Law Study Guide.
[70] Ibid.
[71] George Knupffer, The Struggle for World Power (Noontide, 4th Ed, 1986).
[72] Karl Marx, Early Writings (Penguin, 2005)
[73] Daniel Farber and Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (Oxford University Press, 1997).
[74] Karl Marx, On the Jewish Question (1844) < https://www.marxists.org/archive/marx/works/1844/jewish-question/>.
[75] David Koyzis, Political Visions & Illusions (InterVarsity Press, 2009).
[76] Daniel Farber and Suzanna Sherry, above n 69.
[77] Daniel Farber and Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (Oxford University Press, 1997).
[78] Ibid.
[79] Ibid.
[80] Ibid.
[81] William McGovern, ‘Collectivism and Individualism’, in Felix Morley (ed), Essays on Individuality (Stratford Press, 1958) 339.
[82] Ibid.
[83] Philosophy of Law Study Guide.
[84] Daniel Farber and Suzanna Sherry, above n 73.
[85] Ibid.
[86] Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters Australia, 3rd ed, 2010).
[87] George Williams, ‘A Decade of Australian Anti-terror Laws’ (2011) Melbourne University Law Review 35.
[88] Australian Human Rights Commission, How are Human Rights Protected in Australian Law? (2006) <https://www.humanrights.gov.au/how-are-human-rights-protected-australian-law>.
[89] Leonard Peikoff, The Ominous Parallels (Plume, 1983).
[90] Ibid.
[91] Michelle Sanson and Thalia Antony, Connecting With Law (Oxford University Press, 3rd ed, 2014).
[92] Ibid.
[93] Raymond Wacks, Understanding Jurisprudence (Oxford University Press, 3rd ed, 2012).
[94] Margaret Davies, Asking the Law Question (Thomas Lawbook, 3rd ed, 2008).
[95] Legal Process Study Guide.
[96] Ibid.
[97] Ibid.
[98] Alvin Schmidt, How Christianity Changed the World (Zondervan, 2004).
