Hostname: page-component-8448b6f56d-cfpbc Total loading time: 0 Render date: 2024-04-16T21:03:51.510Z Has data issue: false hasContentIssue false

THE FIRST VIRTUE OF THE LAW COURTS AND THE FIRST VIRTUE OF THE LAW

Published online by Cambridge University Press:  01 June 2007

Hanoch Sheinman*
Affiliation:
Rice University

Abstract

Justice, you might think, is the first virtue of the law. After all, we call our judges justices, the administration of law the administration of justice, and the government's legal department the Justice Department. We should reject this Priority of Justice for the Law in favor of the more moderate Priority of Justice for the Courts, the view that justice is the first virtue of the law courts. Under its comparative conception, justice is distinguishable by its concern with the relative positions of subjects. I claim that legal duties divide into primary and secondary, that primary legal duties are not essentially comparative, and that this impugns the Priority of Comparative Justice for the Law. Still, the bipolar structure of litigation appears to suggest that comparative justice is the first virtue of the courts. I explain why that is not so. I then introduce a desert-based conception of justice I dub requitative justice. I argue that the Priority of Justice for the Law cannot draw succor from this conception of justice because primary legal duties are no more requitative than they are comparative. However, the special affinity between law courts and secondary legal duties suggests that requitative justice is the first virtue of the courts. Finally, I concede that the Priority of Justice for the Courts gives us reason to accept the Priority of Justice for the Law after all, if we accept the common Priority of Courts for the Law, the view that the courts are the first institution of the law. We should not do so, however.

Type
ARTICLES
Copyright
Copyright © Cambridge University Press 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

REFERENCES

Aristotle, . 1999 Nicomachean Ethics, trans. Irwin, Terence. Indianapolis: Hackett.Google Scholar
Campbell, Tom. 1974Humanity before Justice,” British Journal of Political Science 4: 116.CrossRefGoogle Scholar
Coleman, Jules. 2001 The Practice of Principle. Oxford: Oxford University Press.Google Scholar
Feinberg, Joel. 1970 Doing and Deserving. Princeton, NJ: Princeton University Press.Google Scholar
Finnis, John. 1980 Natural Law and Natural Rights. Oxford: Oxford University Press.Google Scholar
Fuller, Lon. 1964 The Morality of Law. New Haven, CT: Yale University Press.Google Scholar
Gardner, John. 1996. “Discrimination as Injustice,” Oxford Journal of Legal Studies 16: 353367.CrossRefGoogle Scholar
Gardner, John. 2000The Virtue of Justice and the Character of Law,” Current Legal Problems 23: 130.CrossRefGoogle Scholar
Gardner, John. 2004. “The Legality of Law,” Ratio Juris 17: 168181.CrossRefGoogle Scholar
Green, Leslie. 1996The Concept of Law Revisited,” Michigan Law Review 94: 16871717.CrossRefGoogle Scholar
Hart, H.L.A. 1953Justice,” Philosophy 28: 348352.CrossRefGoogle Scholar
Hart, H.L.A. 1992 The Concept of Law. Oxford: Oxford University Press.Google Scholar
Kleinig, John. 1971The Concept of Desert,” American Philosophical Quarterly 8: 7178.Google Scholar
McCrudden, Christopher. 1991Introduction,” In McCrudden, Christopher, ed., Anti-Discrimination Law. Aldershot, UK: Dartmouth.Google Scholar
McLeod, Owen. 2003On the Comparative Element of Justice,” In Olsaretty, Serena, ed., Desert and Justice. Oxford: Oxford University Press.CrossRefGoogle Scholar
Rawls, John. 1999 A Theory of Justice. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
Raz, Joseph. 1990 Practical Reason and Norms. Princeton, NJ: Princeton University Press.Google Scholar
Raz, Joseph. 1979 The Authority of Law. Oxford: Oxford University Press.Google Scholar
Sandel, Michael. 1982 Liberalism and the Limits of Justice. Cambridge, UK: Cambridge University Press.Google Scholar
Sheinman, Hanoch. 2007The Priority of Courts in the General Theory of Law,” American Journal of Jurisprudence 52: 130.CrossRefGoogle Scholar
Van den Haag, Ernest. 1982The Collapse of the Case against Capital Punishment,” In Bedau, Hugo, ed., The Death Penalty in America. New York: Oxford University Press.Google Scholar
Waldron, Jeremy. 1999 Law and Disagreement. Oxford: Oxford University Press.CrossRefGoogle Scholar