Rethinking Justice within the law

Part one: Impartiality.



Western philosophy’s most well-known concept is that of justice, yet its vagueness has resulted in both philosophers and jurists failing to agree on its exact meaning.[1] Its lack of a solid, defining characteristic leads individuals to maintain their own perception of justice, accepting and attributing various characteristics to their understanding of it. [2] However, what remains a defining characteristic of justice, is its tendency to “attack and replace all theories that came before it”. [3] In the words of Hans Kelsen, "man cannot find a definite answer but can only try to improve the question".[4]


The legal system attempts to provide a sense of clarity in its iconic personification of three characterisations of justice that it believes best represent its process. These are embodied within the iconic “Lady Justice”, a blindfolded goddess, who holds a set of scales in one hand and wields a sword in the other. The first of these elements will form an inquiry into the extent to which law is dependent upon justice, when justice means equality.



The blindfold: Justice as equality.


Turning to the blindfold, the law purports itself to be blind to the individual’s idiosyncrasies, conveying an impartial and impersonal approach to those it judges. Feminist legal theory and Critical race theory will form the basis of the critique of justice as a concept of equality. Although both theories pursue common objectives; their compatibility is debatable, hence, for the purpose of this essay they will be treated separately.


Law is a social institution, one which reflects the conventions of society. [5] In a society where racist and sexist attitudes exist, the law will reflect those attitudes in the rules it contains. Feminist legal theory and critical race theory bridge the gap between social justice and justice in a legal sense, through exploring the manifestation of these social inequalities within the legal process. With both theories illustrating injustice through the violation of one group’s rights, justice as equality means equal rights amongst all members of society. One of these rights is the right to an impartial and unbiased judgement. Therefore, no law should exist or be interpreted by the legal system in a way that gives specific consideration to arbitrary characteristics such as race and gender.



Feminist Legal Theory


There appears a prima facie contradiction between the doctrine of justice as equality and Hart’s maxim of justice “treat like cases alike and treat different cases differently”.[6] Identifying differences in cases requires the law to differentiate one case from another, which is far from a blind process. From a feminist perspective however, true equality can only be achieved through the recognition of difference between men and women. Their position is that women are subjected to a male centric law, one which caters to the male perspective of reality whilst ignoring the key experiences and characteristics which define women.[7] Two such examples are childbirth and the experience of intercourse. The law developed around rape and abortion fail to recognise female perspectives, which reiterates the point that the law is created and interpreted from a male perspective.[8] Radical feminism offers a profound insight into these areas of the law, predicated on their pejorative view of both sex and pregnancy.


 To the radical feminist, intercourse and pregnancy are invasive, intrusive and violative.[9] Both events wreak havoc on the woman’s systems, with real harm and damage caused, even under the provision of consent.[10] It therefore follows that an unwanted pregnancy should warrant the right to an abortion, for to go through suffrage, forcefully through the constraints of the law, denies a basic right of women.


Likewise, unwanted intercourse infringes upon the inherent worth of a woman, ignoring her freedom of choice and liberty. Such an action warrants the protection and retributive force of the law. However, under the legal guise of marriage, a woman’s accusation of rape against her husband is rarely successful.[11] Sexual invasion through rape is only recognised as a harm in criminal law when it involves another harm, either theft or violence, two forms of harm that men are able to understand.[12] Furthermore, rape trials are focused around the man providing evidence of consent rather than the violated female. This not only serves as inequality but establishes the logic that only the male may be the only perpetrator and the woman the only victim in the eyes of the law.[13]


 The blind and equal treatment of the law, in its aspiration towards justice, produces inequality and leads to injustice by ignoring the values, dangers and the “fundamental contradiction” that characterise woman’s lives.[14] This illustrates the separation of law from justice. Feminists do not entirely reject the blind application of law, however, as long as the law continues to ignore the inherent rights of women, a blind application of such law will inevitably lead to injustice. Conversely, conceptualising legal change leaves them divided,[15] overcoming this barrier is essential to achieving a truer sense of justice.



Critical Race theory


This engagement with CRT will focus on a division called revisionism.[16] This involves a critical account of the past discrimination law in America[17] and how remnants of it still exist in today’s society, producing injustice and preserving the inequalities of the past. Although the legislation has since been repealed and case law has been established that overrules many of the racist precedents,[18] the fact that race was a determining factor in the legal process serves as evidence on law’s separation from justice. Although strictly an American development, in other jurisdictions, laws are still in place which discriminate on a racial basis demonstrating that even in modern times, the law is capable of directly discrimination and injustice.[19]


The Injustice of racial prejudice is shaped through the convergence of a toxic race consciousness and the legal consciousness. Ideology that depicts one ethnic group as inferior, legitimises the use of law as a tool for their persecution and coercion.[20] Such examples of this can be found between the period of 1660 to 1682, when the first slave codes were enacted.[21] These codified the extreme deprivations of liberty existing in state practice, “blacks were not permitted to travel without permits, to own property, to assemble publicly, or to own weapons; nor were they to be educated”.[22] Such laws demonstrate the ability of law to operate outside the realms of morality, sustaining inequality and producing injustice. These racist traditions have sustained the course of time, surviving within the US criminal justice system. A 1982 report found that minorities received harsher punishments and faced higher incarceration rates.[23] Racial prejudice has been shown to negatively influence the outcome of cases when compared to the law’s application to their white and affluent counterparts, especially in the imposition of the death penalty.[24] This greatly affects the extent to which the law may claim its process to be impartial. The prevalence of this racial bias still in existence is due to its more subtle and unconscious infiltration rather than a blatant and direct application.






Both these perspectives characterise the law as an unequal process where individuals receive unequal treatment under law. The rights afforded to women today and of blacks in the past provide insight into the ability of the law to be selective of which rights to prioritise and uphold. Expectedly, the problem appears to be deeply rooted, with those within the judicial system, even at an unconscious level, believing in stereotypes which interfere with impartiality, thus serving as a barrier to progress.[25] This is further complicated by the various components of the judicial process and how organs of the court such as the jury play an equally important and in some cases, an  equally biased role in decision making.[26] If justice is a concept that is based on equality and impartiality, then the law is separate from justice.

This article was written by Josh Prior 


[1] Charles Egan Goff, Is Lady Justice a Blind Date, 59 A.B.A. J. 851 (1973).

[2] John Rawls, A theory of justice, Third Indian Reprint 2008.

[3] Costas Douzinas and Adam Gearey, Critical Jurisprudence, The political philosophy of justice, Hart Publishing, (2005).

[4] H Kelsen, what is justice? Berkley University of California Press 1971.

[5] Professor J. E. Penner, Dr E. Melissaris, McCoubrey & White’s Textbook on Jurisprudence Fifth edition, Oxford University Press.

[6] The concept of law. H.L.A Hart, second edition, Oxford University Press.

[7] Ngaire Naffine, ‘In Praise of Legal Feminism’ (2002) 22 Legal Studies 71.

[8] Eloise A. Buker, Lady Justice: Power and Image in Feminist Jurisprudence, 15 Vt. L. Rev. 69 (1990), p83.

[9]  Andrea Dworkin, Intercourse, p21-22.

[10] Jurisprudence and Gender, Robin West, The University of Chicago Law Review, Vol. 55, No. 1 (Winter, 1988), pp. 1-72.

[11] Rape and domestic violence, Ngaire Naffine, ‘Possession: Erotic Love in the Law of Rape’ (1994) 57 Modern Law Review 10.

[12] (n 8)

[13] Ibid.

[14] Ibid.

[15] (n 6).

[16] Wacks, Raymond. Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press, p312.

[17] Jim crow laws (See generally C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW passim (I974) (describing the American system of legally mandated race segregation).

[18] Brown v. Board of Education, 69 347 U.S. 483 (I954) reversed the Court's prior endorsement of "separate but equal" in Plessy v. Ferguson, 8 I63 U.S. 537 (I896) and marked the end of the legal recognition of state-enforced racial separation.

[19] John McClung Nading, Property under Siege: The Legality of Land Reform in Zimbabwe, 16 Emory Int'l L.Rev. 737 (2002). This explores the redistribution of land by identifying owners of white ethnicity and distribution of their farm land to the indigenous black population.

[20] Kimberlé Crenshaw, ‘Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law’ (1988) 101 Harvard Law Review 1331.

[21] Whiteness as Property, Cheryl I. Harris, Harvard Law Review, Vol. 106, No. 8 (1993), pp. 1707-1791.

[22] Ibid.

[23] National minority Advisory Council on Criminal Justice, The Inequality of Justice: A Report on Crime and the Administration of Justice in the Minority Community, 1982.

[24] Rose Matsui Ochi, Racial Discrimination in Criminal Sentencing, 24 Judges J. 6 (1985).

[25] See Lynn Hecht Schafran, Eve, Mary, Superwoman: How Stereotypes about Women Influence Judges, 24 Judges J.12 (1985).

[26] See Tanya E. Coke, Lady Justice May Be Blind, But Is She a Soul Sister--Race-Neutrality and the Ideal of Representative Juries, 69 N.Y.U. L. Rev. 327 (1994).