Law & Society Blog

Any system can be defined by a pair of terms, by its code: lawful/unlawful for the law, good/evil for morality, beautiful/ugly for aesthetics. Just/unjust may be the code for some normative system, but (as my esteemed colleague drhfk insists), not of the legal system. This view, an extreme form of the positivist separation thesis, is linked by drhfk to a view of normativity that describes “ought” as the respected and affirmed expectation of those to whom norms are addressed, the citizens. (More properly, law protects the expected expectations of citizens, as set out below.)

How does the conceptual isolation of the legal system (from codes of morality or justice) affect the (expected) expectations of citizens?

(Note that I distinguish morality and justice as separate normative systems.)

The X marks a normative relevant event, specifically a norm violation. Taken the example of theft, the event would be relevant to all three normative systems shown: Morality (stealing is evil), Justice (stealing in unjust), and Law (stealing is unlawful, and punishable). The arrows symbolize expectations. They run to and from the citizen because there is a normative feed-back between the citizen and the normative system. The citizen expects that property ought to be respected, and hence, that theft will be punished. Two hundred years ago, the citizen might have expected that marriage ought to be respected, and hence, that adultery will be punished. The Law no longer punishes adultery, and the (legal) expectations of the citizens have been altered as a result. In this manner, the normative system produces and shapes the expectations of the citizen.

But it is not only the Law that influences expectations. While perhaps systematically autonomous and separate, the codes of lawful/unlawful and just/unjust are closely related. If it is true that notions of Justice “may be imported by the legal system into the programs that guide the application of the binary values of the legal code” and that “once assimilated into the legal system, such considerations are no longer considerations of justice but rather attributes of legal (lawful/unlawful) communication,” it does not follow that normative expectations of citizens are equally affected.
Notions of Justice do affect the normative expectations of citizens, and specifically the normative legal expectations of citizens. The law itself takes such (strictly speaking erroneous) expectations into consideration in instances where mistaken legal assumptions will be respected. An example from German law is Section 15 Commercial Code (the expectation that liability for a business’ debts attach to the name of the business is protected). In the Common Law equitable remedies are used to protect the expectation of a just result where a legal result is unsatisfactory. In criminal law, it is the function of the jury’s verdict (also) to link the legal sanction to actual expectations of the citizens, whether these expectations flow from Law, Justice, or Morality.

It follows also that the law may do more than reinforce expected legal expectations. In punishing the thief, popluar sentiments of Justice (and Morality) will also be vindicated. I doubt, therefore, whether the Law may subjugate Justice effectively and permanently.

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