Conceptualising Justice And The Law: Is An Unjust Law Not A Law?
By Shalini Prem
This article uses contemporary examples to discuss the long-standing jurisprudential debate — ‘is an unjust law not a law?’. The article primarily analyses the complexities in the conceptualisation of justice and law by natural law philosophers to ultimately determine whether the validity of laws depend on their moral defensibility.
· Introduction
· The Moral Obligation to Obey a ‘Law’
· Deconstructing ‘Justice’
· Justice, Law, and Divinity
· Standards of Justice in the Constitution of India
· Justice and Law-making by the Majority
· Unjust Application of a ‘Just’ Law
· Duality of Law
· Conceptualising an ‘Unjust Law’
· Conclusion
Introduction
Lex iniusta non est lex, the legal maxim meaning ‘an unjust law is not a law’, originated and was made famous by two Christian legal philosophers, St. Augustine and Thomas Aquinas, respectively.] The maxim is considered to be central to the debate that distinguishes the natural school of legal philosophy from that of the positivists. At the core of the debate lies the fundamental question regarding the role of moral standards/ reasoning in guiding the formulation of laws and the obligation of subjects to obey it; with the natural lawyers generally agreeing that law is subject to moral standards, while the positivists generally agreeing that morality does not influence the legal sanction of law.
In India, homosexuality, abortion, obscenity, pornography, child marriage, age of consent, non-binary gender identification, death penalty, beef ban, suicide, euthanasia, prostitution, marital rape, and menstruating women accessing Sabrimalai temple are a few issues in the legal sphere deeply entwined with moral controversy. Thus, a central question that arises is with regards to the conceptualisation of justice and whether the validity of a law depends on its moral defensibility?
The Moral Obligation to Obey a ‘Law’
While determining whether ‘an unjust law is not a law’, it is pertinent to ascertain how the term ‘law’ in the maxim is used. The maxim in question could be perceived to involve two distinct conceptualisations of law: the first ‘law’ can be understood to be positive law in relation to the society/institutions from where it originates while the second usage of the term ‘law’ can be understood to be positive law in connection with natural law. Thus, the latter ‘law’ is what Finnis would term as law in the focal sense; making the former — law in the secondary sense. With the implication of such identifications being that the legal validity of an ‘unjust’ law may remain unaltered by its moral indefensibility, i.e., an unjust law may remain a de facto law and may be accepted by courts as a valid law having legal sanction and consequently generating legal obligations despite not conforming with moral standards. Thus, the question that follows from the maxim is regarding the moral obligation to obey a seemingly unjust law despite its legal validity.
With regards to the moral obligation to obey, natural law sanctions disobedience to ‘unjust’ laws such that subjects of a State are expected to willingly and consciously refuse compliance with unjust laws. Historically, such disobedience has been used as a political tool by communities to transform legal obligations to coincide with their moral standards. One obvious concern that arises with disobedience is the issue of stability of the legal system and legal order in a country where subjects choose which laws they obey and which they do not, based on their subjective and relative moral standards and interpretations of divine law. Positive human-made laws are arguably, however, believed to enjoy some sort of moral authority such that the act of a subject of the State, seeking retributive justice, catching and killing the murderer of his friend would be considered ‘unjust’ while a death penalty imposed by the Court of law on the same murderer would be considered ‘just’. Furthermore, if a judge considers a law to be unjust, does he have a moral obligation to refuse its enforcement? If yes, would the effect be the loss of independence of the judiciary? Would such a loss then be a denial of justice in itself?
Deconstructing ‘Justice’
Justice, Law, and Divinity
What, then would qualify as an unjust law? According to Aquinas, human beings, as inherently rational beings capable of exercising choice, could access the ‘ultimate reason’ through lex divina, i.e., spiritual revelation, and lex naturalis, i.e., reflection in reason of the lex aeterna (eternal law/ Will of God). The argument extended by Aquinas is that human-made positive law, i.e., lex humana, would qualify as a ‘good’ or ‘just’ law as long as it conforms to the lex naturalis and lex divina. Here, the law is seen as a tool to transmit ‘virtuous reason’; thus facilitating the achievement of a human being’s inherent potential for good as conceptualised by Aristotle.
Similar to Aquinas’ understanding of unjust laws, Martin Luther King believes an unjust law to be a human made law not in conformity with the law of morality or law of God. Firstly, both Aquinas and King arguably neglected to determine how their formulation of the relationship between law and justice would pan out in a religiously diverse and plural country like India — where each religious community has separate and distinct conceptualisations of ‘God’, while coexisting with religions like Buddhism- who do not recognise the existence of a Supreme God. So, with different communities in a society believing in a distinct higher reason or order, how does the State determine which divine law to conform to for a universal moral standard applicable to all subjects of a State.
This becomes all the more complicated when there are conflicting religious ideologies on a particular issue. For instance, the Hindu community (predominantly those from the upper caste) arguably claim that cows are sacred under Hinduism and that their slaughter for meat is against their religious tenets, i.e., against their divine law. On the other hand, beef is traditionally considered to be a part of the dietary culture of religious groups like Muslims and Christians in India. How would the State then determine whether banning beef would be just or unjust? Furthermore, how would the State accommodate conflicting interpretations of religious scriptures by members of a single religious community? How would the moral code of God be ascertained then? In India, personal laws are guided by religious customs of different religious communities and the personal law statutes usually also accommodate distinct customary practices otherwise neglected by the dominant interpretations of religious practices. In a way, the State arguably attempts to accommodate the ‘divine law’ of different religious groups as well as creates space for the accommodation of different intra-religious interpretations of divine law.
In India, the practice of polygamy/ bigamy, for instance, is recognised, though as an exception, under Muslim personal law (which is predominantly uncodified) while in the case of other religions like Hinduism and Christianity, the same is not recognised under their predominantly codified personal laws. In addition to this, the interpretive differences among various sects due to the uncodified nature of the Muslim personal ‘laws’ would arguably give rise to another set of complexities. Thus, in a religiously diverse and plural State like India, several complexities and practical difficulties arise in attempting to identify a universal God whose ‘law’ can be established as a universal moral code determining which law is just and is morally binding on its subjects.
Additionally, are all laws made in accordance with divine law really ‘just’? For instance, the practice of untouchability in India is arguably believed by some authors to have religious sanction. Considering this to be true, would a law prohibiting the practice of untouchability be ‘unjust’ since it does not conform to the divine law? If an unjust law is believed to not entail any moral obligation or as Martin Luther King or Socrates propounded, necessitates disobedience, then would the continuance of the practice of untouchability in the present day despite legal sanction be considered ‘just’? Another example to highlight the same could be Female Genital Mutilation which is believed by some communities and scholars to have religious sanction under Islam.
Standards of Justice in the Constitution of India
Embodied in the Constitution of India are certain implicit and express standards of justice giving rise to certain natural rights. For instance, express standards of justice would include, inter alia, “procedure established by law”, and “equal protection of the law”. While, implicit standards may include principles of natural justice, fairness, non-arbitrariness etc derived from within the constitution. Any law violating the standards of justice laid down in the constitution would be considered unjust and legally invalid. However, the relationship between justice, natural law, and legal validity, in this context, is only applicable to the extent that such standards and rights exist in the Constitution and the law is interpreted by the Court to be just or unjust based on these standards.
Justice and Law-making by the Majority
Another suggestion is that any law solely binding on the minority, imposed upon the minority by the majority, and without participation of the minority in its enactment, is considered to be unjust. The Transgender Persons (Protection of Rights) Act, 2019, for instance, is a law about transgender (or gender non-binary) individuals enacted by a predominantly cis-gender group of individuals neglecting the concerns and realities of the gender non-binary individuals. Another example could be that of the right to abortion, where the legality or illegality of abortion, a law largely affecting the reproductive agency of women, is oftentimes decided by a group composed predominantly of men. Thus, arguably making these laws ‘unjust’.
Unjust Application of a ‘Just’ Law
There may be instances where a law is prima facie just but unjust in its application. Section 377 of the Indian Penal Code, 1860, for instance, at the time of its enactment was applicable to all human beings engaging in anal sex and was arguably considered to be prima facie ‘just’ as it equally applied to all and was also in consonance with Victorian morality existing at the time. However, in its application, the law was found to be unjust as its effect was the ‘criminalisation’ of the sexual agency and identity of individuals identifying as homosexuals.
Duality of Law
Furthermore, a law which may be just to one may be considered unjust by another. The debate on reservations could be an example. The meritocracy argument is that a law reserving seats for select communities deprives access to those individuals with the requisite merit/qualifications and is hence ‘unjust’ to the qualified individuals. Alternatively, reservations are argued to provide access to communities who have been historically denied access and opportunity due to their membership in a particular community and the socio-economic disadvantages that follow such membership and is hence considered a ‘just’ law for these communities. Thus, the categorical distinction of laws by natural lawyers as either just or unjust would not hold in such circumstances.
Conceptualising an ‘Unjust Law’
Like in the reservations case, protection of one’s rights sometimes comes at the expense of another’s. So, from whose point of view is this relative notion of ‘justice’ then determined? Should the State adopt a utilitarian approach while determining whose rights it protects? Is majoritarianism then a determinant of justice? What if the majority believes that a law prosecuting the minority is ‘just’? If the suggestion is then that law is considered to be just as long as the society at large has accepted it to be just, who do we consider as ‘society at large’? How do we determine such collective morality? Would the State uphold the dominant morality of those whose beneficial interests it seeks to protect? Would a ‘just’ law then be one that appeals to the morality of the ‘upper caste’, ‘upper class’, ‘cis-gender’, ‘male’ in India? Thus, bringing me to my final question regarding the complexity of the notion of justice, when does a law become sufficiently unjust that it loses its moral force?
Conclusion
As observed, there can be no definite answer to the question of whether an unjust law is a law or not. This is because the complex interplay between justice, morality, divinity, and law may make the categorical identification of a law as either just or unjust practically difficult. The arguably euro-centric approach of natural legal philosophers like Aquinas and Augustine neglects to account for the complications that may arise when their conceptualisations of just laws are applied to a religiously diverse and plural country like India. While the legal validity of a positive human-made law is not affected by its moral defensibility, the complex notion of justice and its diverse conceptualisations make it difficult to concretely ascertain whether a seemingly unjust law should have any moral force by way of obedience; especially when disobedience by individuals and communities to laws, with diversity of thought in terms of its ‘just-ness’, might lead to selective obedience to laws resulting in probable chaos and destruction of legal systems.
(The author is Shalini Prem, Third Year BBA LL.B (Hons.) Student, Jindal Global Law School, O.P. Jindal Global University. You can find her on Instagram.)
