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David McIlroy

Augustine’s question: what is the difference between a kingdom and a band of robbers? identifies that law cannot be understood as a social institution without considering its relationship to justice. That relationship is complex because despite law’s necessary reference to justice, the justice which is achievable is only ever approximate, and law’s use of rules makes it impossible for laws to do justice in all individual cases. Rulers claim that their rule is just: that the law is made by those who have the right to make it, that it is substantively just, and that law will be obeyed by all to whom it applies. Through the key claim that the laws are just, rulers seek to induce voluntary obedience and to justify the use of force when obedience is not volunteered. Augustine was clear-eyed about such claims, stressing that the Pax Romana was victor’s justice.

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David McIlroy

Law is the practice of issuing general or generalizable rules justified by reference to an account of justice. Such rules enable law’s subjects to know how they are expected to behave and how they can expect others to behave. Such rules discipline violence, by prohibiting the use of force in contravention of the rules and by authorising the use of force to enforce the rules. Such rules set a framework for resolving disputes. Law’s claim to refer to justice is intrinsic to those functions of law. Justice is a complex concept. Shallow justice is the justice which is immanent to a legal system, existing to the extent to which the rules are applied predictably and consistently. Deep justice describes the sense of how people deserve to be treated which underlies the rules of a legal system. True justice is objective moral order, without which justice is not justice but power.

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David McIlroy

Law’s implication in violence cannot be denied. Law employs force in order to enact what it calls justice. The threat of force, both the force exerted by the law and the violence which would exist apart from the law, is essential to law. The regimes which establish legal systems have violent origins. The modern state does not claim a monopoly on violence, rather it subjects all violence within its domain to the requirement of justification. Law promises those who it treats as subjects that its rules are of benefit to them because they will be followed by all those to whom they apply. Those a legal system treats as mere objects, such as chattel-slaves, are not subject to law they are objects of violence. Where the law protects no-one effectively against violence, the legal system has collapsed entirely; the regime is nothing more than a band of robbers

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David McIlroy

Legal positivism’s dissection of law from justice removed the life from the phenomenon it was examining. What was lost was an understanding of what exactly law’s claim about its relationship to justice is, why that claim is made, and the work which that claim is doing. Justice is integral to the interpretation, expression and critique of legal rules. Shallow justice is intrinsic to judicial decision-making, whether the application of the rule seems plain or contestable. Laws seek to implement conceptions of deep justice. True justice judges the rules and the conceptions of deep justice which they express. The freedom which law promises is important, but is best understood not as a separate good from justice. Governing by means of rules is about both giving subjects an area of immunity from the power of others and about obliging subjects to act in certain ways towards one another.

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David McIlroy

Were force required to be used in order to enforce each and every aspect of each and every law it would be impossible. By appealing to a comprehensible conception of deep justice, rulers make voluntary obedience to the law possible, and by rendering that conception of deep justice plausible, rulers encourage voluntary obedience. Law’s legitimating function is most successful when there is widespread agreement within a society about deep justice and a tight fit between that conception of deep justice and the rules promulgated. However, the claim to be doing justice is used by the powerful to disguise the injustice of their power. Rulers induce a false consciousness in their subjects which secures voluntary obedience. Nonetheless, the need to maintain the plausibility of the conception of deep justice places a constraint on rulers’ power. Law is both an instrument of oppression and a restraint on certain methods of exploitation.

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David McIlroy

The conception of deep justice which rulers present to their subjects offers an account of how their subjects deserve to be treated and an account of the goods which their rule will make available for their subjects to pursue. Augustine defined a political community as united by common objects of love, by the shared goods which they pursue. Liberal conceptions of deep justice have eschewed discussion of the good. Nonetheless, human rights and economic theories have functioned as common objects of love in the West since the Second World War. Critical natural law theory inspired by Augustine insists that justice can only be done if the common good is attended to but that the law should give subjects and social institutions freedom to pursue distinct goods in different ways.

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David McIlroy

The core commitment of natural law theories is that the basic principles of morals and legislation are objective, accessible to reason and based on human nature. The Objective Standard against which laws are to be measured may be conventional or it may be iconoclastic. Bentham’s Utilitarianism was a natural law theory just as much as Blackstone’s was. Natural law theories can be critical theories, critiquing the injustice of rulers in the name of a higher standard of justice. When a natural law theory is conventional, it reveals that a society’s conceptions of deep justice have become so settled that they have been mistaken for true justice. Human rights theories are a modern form of natural law, asserting that there are universal standards of justice which apply across all cultures. The best explanation for the existence of universal standards of justice is a theistic one.

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David McIlroy

Law is power restrained by the form of rules and the simulacrum of justice. Precisely because we cannot rise above ideology and belief, we cannot abandon a belief in justice. The conception of deep justice to which rulers appeal is often a conception of victors’ justice. The fundamental question about the justice of a legal system is therefore a question about the justice of the conception of deep justice which underlies it. True justice is required if the adjudication between different conceptions of deep justice is to be anything beyond a power struggle. True justice is required in order to condemn genocide or child sexual abuse as always objectively wrong. Because true justice is, by definition, mind-independent, its existence does not depend on consensus. The existence of true justice makes best sense of our moral intuitions and is the precondition for rational discussion about goods and morality.

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David McIlroy

For a variety of reasons, some of them structural, the conventions and norms of a legal system can never capture and domesticate the concept of justice. Justice always exceeds its application in law. The agony of the law is that the tools of the law cannot do justice to justice. Many legal systems fail to deliver the shallow justice they promise. The conceptions of deep justice within a legal system conflict and can be incoherent. Constructing a critique of law from the true justice of a utopia is totalitarian. Confining oneself to an immanent critique fails to recognize when revolutionary change is required. Augustine founded his critique of the Pax Romana in a transcendental true justice which could not be fully instantiated. Critical natural law theory focuses on the victims of injustice, it regards law is imperfectible, but seeks relative movements towards truer justice.

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David McIlroy

Law is not law unless it refers to justice; justice requires reflection in law. Law is defective if it does not deliver the shallow justice of predictability and consistency. Law is defective if it does not adequately express the conceptions of deep justice in a community. Law is dangerous and oppressive where it departs from true justice. True justice depends on their being an objective account of human deserts. It requires attention to questions about what human beings are, what is good for human beings, and whether they have a relationship to God. True justice is a transcendent concept, either a desideratum, necessary but non-existent, or grounded in the eternal. If God exists, then true justice exists for only God could issue the final judgment which is the end of law. Augustine’s critical natural law theory looked forward to such a Day of Judgment.