Edited by Hans-W. Micklitz
Chapter 2: Social Justice and Legal Justice
1 Wojciech Sadurski 1 INTRODUCTION Both in our common, intuitive thinking about justice and in the writings of legal and political philosophers, a distinction between legal justice and social justice is frequently made. We often suggest that certain rules, acts and allocations are ‘legally just’, although they fail to meet any acceptable criteria of social justice. It is ‘legally just’, we say, that a legitimate heir in law inherits the testator’s estate, that a freely made contract be enforced or that the insurer pay damages in accordance with the policy irrespective of whether or not the pattern of distribution produced by these acts meets anyone’s criteria of social justice. On the opposite side, we suppose that, for instance, preferring the members of a disadvantaged minority in job placements may be an act of social justice in so far as it offsets some of the consequences of past injustices and yet it would lead to an intolerable ‘reverse discrimination’, thus raising cries of legal injustice. In this chapter, I shall attack this dichotomy. The upshot of my discussion will be that what we usually call ‘legal justice’ is either an application of the more fundamental notion of ‘social justice’ to legal rules and decisions or is not a matter of justice at all. In other words, the only correct uses of the notion of legal justice are derivative from the notion of social justice and, hence, the alleged conflicts between criteria of social and legal justice result from the confusion about...
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