Justice In Applying Laws

We have so far been talking about justice in making laws that assign rights and duties to people. Justice is equally or more important when it comes to administering laws. To administer laws fairly requires those who administer them — police, judges and officials — to be impartial, to listen to both or all sides of the question, and to put aside their personal interests. Equality before the law is an impor­tant right. It demands that in administering the law there should be no discrimination for or against a particular person or group.

This sounds straightforward, but there are two problems about applying laws strictly and impartially. One is that some laws are unjust. Unjust laws are awkward not only for ordinary people who have to decide whether to obey them but also for judges and officials who have to decide whether to apply them. For to apply an unjust law strictly and impartially is to spread injustice.

Suppose a government replaces the income tax by a poll tax, so that, though incomes vary widely, everyone pays the same. The poll tax would be widely regarded as unjust, and with good reason. It is fair to tax people the same when the benefit they get, or can get, from the thing taxed is roughly the same. So it may be fair to make every owner or hirer of a TV set pay the same fee for a license to use it, even though some rarely watch TV and others are glued to the set.

But income tax is a contribution to the general expense of running a society. It is not a tax on a particular item. The highly paid are much better placed to contribute to these general expenses than the low paid. They also get more benefit from the legal system, since, without the framework of law and the security it provides, they could earn little or nothing.

Supposing, then, that income tax was replaced by a poll tax, ought officials and judges to apply it impartially, taking no account of high or low income? Opinions differ. One view is that judges and officials should apply even unjust laws impartially. They are professionally committed to applying the law as it is, even if it is unjust. Their remedy, if the laws as a whole are too unjust, is to resign their office. Others think that it is sometimes right for them to stay on as judges and try to undermine the system.

Consider the parallel with doctors. A doctor should try to heal even a mass murderer, though society would be better off if he died. We rely on doctors to promote life and health. We do not think they should weigh up whether in a particular case the patient is so wicked that he doesn't deserve to live. In much the same way we rely on judges to apply the laws and not to ask themselves whether a particular law would be better not applied. But they can, like the rest of us, criticize it, and, if it offends their conscience, resign.

It is a different question whether a citizen is bound to obey an unjust law. In general we have a duty to obey the law, assuming that it offers us a reasonable balance of duties and rights, threats and promises. But if a law is unjust we may not have a duty to obey it. Sometimes there is, morally speaking, a choice. If income tax were replaced by a poll tax, it would not be wrong to disobey it, but also not wrong to pay the tax. That the tax is unjust is a reason not to pay it, but the fact that if I do not pay the unjust tax I do not contribute to the expense of the society to which I belong is a reason for paying it. We have to choose between two options, each morally permissible, taking into account that we may suffer a sanction if we break the law. But some laws are so oppressive that one ought positively not to obey them. If a law was passed that required parents to inform the police if their children took drugs, it would be wrong to obey it, since that would be to disrupt family life.

Equity

It is another matter whether a judge should apply a law, just or unjust, strictly. Laws have to be framed in general terms. These are often not well adapted to particular cases, and no two cases are exactly alike. In the nature of things laws cannot fit perfectly, because situations arise that were not, and could not have been, foreseen by those who made them. All systems of law take account of this. They give judges some power to make exceptions when it seems fair to do so. The extent of the power varies from country to country and from one branch of the law to another, but it always exists.

The exercise of this power is often called equity. If income tax was replaced by a poll tax, courts would try to find ways of protecting those who suffered special hardship from having to pay the tax. They have done this, and continue to do it, in a striking way in the law of contracts.

People should, generally speaking, keep their promises and perform their contracts. But it can be unfair to hold people to the contracts they have made. Someone who buys a washing machine may have been pressurized into buying it. Or the seller may have misled them about its performance. Courts have found ways of protecting buyers who agree to buy something through mistake or deception or undue pressure. One way is to allow the buyer to return the machine and get his money back. And judges are alive to other reasons why it is sometimes unfair to enforce a bargain, for instance when the bargain­ing power of the parties to the contract is very unequal.

Justice requires general rules to be modified to fit situations where they would otherwise cause serious hardship. But, here again, though it would clearly be unjust to take no account of the pressures to which a buyer was subject when he agreed to buy, there is no uniquely just way of doing this. For instance, should psychological and economic pressure be put on a level with physical pressure?

General rules have to be adapted to special cases, but there is more than one way in which this can be done. It would be unjust to disregard the circumstances of each case, even though we often cannot point to one and only one just way of deciding the case when they are taken into account.

The view that we can sometimes tell what is unjust, but often cannot point in advance to exactly what justice requires in a parti­cular case, seems unsatisfactory. But the just decision is often, I believe, the decision that an impartial and well-informed person will arrive at after carefully considering the facts and the arguments on both sides. Not all judges and lawyers have these qualities but, if they do, the society they serve comes as close to justice as it is possible to get.

That is why I said earlier that justice is partly objective. The other part, the subjective part, consists in entrusting decisions about how laws should be applied to fair-minded and well-informed people.

Дата добавления: 2015-07-20