The notion of justice used to occupy an exalted place in the foundations of legal philosophy. From Aristotle to Roman law, the juridical art aimed to be the “science of justice”, and justice, when it came to law, was defined as a social virtue. Justice was indeed to be found in nature, as a certain state of social harmony, a fair sharing of the goods between individuals in a given society. The right of each individual was precisely his own share of the goods in such a configuration. The intention of justice was then to calculate the proportion of the goods constituting the right of each before ensuring its effective application, i.e. to determine and enforce such rights. From these short remarks, we can draw a simple and yet powerful conclusion : law and justice were synonymous terms, the aims of the latter coinciding identically with those of law (defining and enforcing the right of each). All in all, such was the kind of service one indeed expected from the juridical art : Suum jus cuique tribuere, to attribute to each his right, meaning applying the law, meaning finding the just solution. Hence, the core of all legal systems was structured around the notion of justice, that wasn’t “associated” with the notion of law ; it was the law  : Jus est aus bon et aegui (law is the art of justice and equity).
What a striking contrast when compared to the current situation. Juridical positivism, the dominant family of law conceptions in France on which the focus will be set for this work, rejects any reference to the notion of “justice”. In the teaching of law, the notion is at best mentioned as a curiosity of the past. It is seen as a vague concept, unfit for a serious study of the law, at best useless, at worst a source of arbitrariness leading to uncertainty, or, one is tempted to say, to… injustice.
This last remark emphasizes the fact that if a large part of modern legal theorists might have banished justice from their books, they did not succeed in banishing it from their own language, and even less from popular common sense. The fact that modern legal theorists, in particular positivist ones, try to drive out a notion so firmly rooted in history and in people’s minds begs several questions : why such an attempt ? How did the philosophical roots of positivism  evacuate the notion of justice ? Are positivist modern theorists right to reject justice altogether ? When it comes to these questions, linked to a philosophical and historical analysis of the law in relation to the notion of justice, Michel Villey’s work is really relevant. That’s precisely why we will be conducting a critical analysis of the rejection of justice associated with the rise of juridical positivism from a villesian point of view. All in all, with the help of several Michel Villey’s writings, the following questions will be answered :
How did the rise of juridical positivism seem to have induced a strict separation between law and justice ? Should such a distinction be maintained ?
In a first part we will see that the philosophical foundations of juridical positivism, based on nominalist / individualist premises and the notion of subjective rights, supposed the disappearance of the notion of justice from the legal edifice. Justice was excluded from the sphere of the law. In a second part we will see that the same philosophical roots of positivism induced a redefinition of the idea of justice, in such a way that made our ordinary preconceived idea about it remarkably improper to the needs of law. Law was then excluded from the sphere of justice. In a third part, we will see why such a distinction is untenable, despite the attempts of some positivists to justify it.
I. The exclusion of justice from the law sphere
Michel Villey identifies the philosophical roots of juridical positivism in the hobbesian philosophy, that itself rests on a fundamental premise coinciding with the rise of individualism : Ockham’s nominalism, that Hobbes learned in Oxford, and that his philosophy applies in its purest form.
Ockham would have typically denied the existence of any natural order and stressed that simple individual realities are the only entities that actually have a real existence in the world. For him, universal, general notions like social harmony, collective entities, “cities” in the time of Aristotle have no essence on their own : they are nothing more than artificial constructions of individuals. They are mere words and bear no meaning in themselves. The Aristotelian notion of “nature” would typically not make any sense. Only singular things exist in the eyes of nominalism ; only individuals, when applied to the legal world. An important conclusion is that by dissolving the metaphysical consistency of nature, nominalism denies the possibility to find the root of any legal system outside of the individual human being. It is this individual, that is, the only existing moral reality, who has to be put at the foundation of the legal edifice.
Hobbes is perfectly consistent with this idea. The concept of the state of nature is indeed to deconstruct society as a whole before reconstructing everything exclusively from the individual, free from any social link. And in the state of nature, individuals have rights ; but it is essential to note that they can only be subjective rights. It is the necessary implication of the nominalist configuration of the state of nature, and it constitutes a radical opposition with the classical definition of rights that we saw in the introduction (the right of someone is one’s fair share of goods in a given society). In fact, in the state of nature, the right of an individual can’t be extracted from any objective social reality : there is no society, only individuals, in accordance with nominalism. The right cannot be an object, the “fair share of goods deserved by each”, since there is no reality from which this “share” could be defined : again, there are only individuals. The right is thus extracted from the only existing entity of the state of nature : the individual itself, and it constitutes his internal attribute, his inherent quality. It is then purely subjective.
The content of the subjective right of the individual is defined by its limitations : it is everything that the law doesn’t forbid me to do. And in the state of nature, such a right is infinite, since there are no laws enacted by any juridical authority. The right is subjective and infinite : it is the unlimited expression of the individual liberty. But this raw subjective right in the state of nature is useless, unprofitable, because it is constantly concurring with the rights of the other individuals. It is even dangerous, since the concurrence between the individual’s rights creates a state of war, of insecurity, and concern. The necessity of escaping the state of nature, in which subjective rights turn man into a wolf to man, pushes the individual to form a social contract. Through such a contract, individuals give to a sovereign entity an absolute authority over them. The role of the sovereign, in return, is to make the subjective rights of individual effective by limiting them through posited law. The role of posited law is to determine the limit of the subjective right of all individuals compared to that of others. One must notice that individual rights are still subjective : their source is unchanged. But they are now effective : the constant conflict between the unlimited rights of individuals in the state of nature is driven out by the limitation of the law posited by the sovereign : these rights are now exclusive in the limits fixed by the law, and guaranteed by the public force of the sovereign.
We did nothing else here than, I believe, defining the philosophical roots of positivism. M. Villey notes that juridical positivism remains an unconscious residue of the doctrine of the social contract. The nominalist and individualist foundations of modern philosophy pushed legal philosophy, in its turn, to identify the source of the right in the individual itself, consecrating the notion of subjective rights. Because the individual is the only existing moral reality, there is literally nothing outside of the individual itself that could determine what is rightfully his ; one cannot observe nature in order to extract the rights of individual and solve conflicts between them. Rights are subjective qualities and not an objective repartition of goods that can be observed in society through the notion of justice. Hence, for a legal system to exist (if it does not, subjective rights are bound to conflict with each other, resulting in anarchy), the law can only be posited by an authority created by the will of individuals : the sovereign. To see the legal system as a set of norms posited by a competent authority is precisely the very core of juridical positivism. One can easily see that the notion of justice is nowhere to be found : the right, in the legal system, is exclusively determined by the posited law of the competent authority, it is the necessary implication of its subjective nature. The finality of the juridical art is not justice anymore : it can be anything, depending on the will of the competent authority that posits law, which could be dangerous.
In fact, an important conclusion drawn from this short analysis is that the same criticisms made toward Hobbes’ system apply to positivist doctrines as well. The price to pay in order to get out of the state of nature is to leave the sovereign unrestrained. In other words, the law restricting the subjective rights of individuals does not apply to the sovereign himself, since there is no superior authority that could enforce it on him. And if there was, this superior authority would in fact be the “true” sovereign, that would need in its turn to be restrained, and so on. It is the so-called Hobbesian Dilemma, that has a simple yet very powerful conclusion for us : by leaving the sovereign unrestrained, we take the risk of creating a monster. By driving justice out of the legal system, we take the risk of creating an unjust system.
This citation of M. Villey summarises pretty well the danger of the philosophical roots of positivism : “Juridical positivism makes us follow the orders of tyrants, or at least accustoms the body of jurists to this passive behaviour; […] it paralyses the progress of law, smothering the French jurisprudence of the twentieth century under the out-of-date rules and principles of the Code civil; […] it is responsible for the stagnation of the juridical art and for its increasing anachronism. Were it possible, it would lead to the reduction of law to laws.” 
The last sentence underlines the fact that the system will not be unjust because the unjust posited law will be strictly translated into unjust decisions in a “mechanical way”. This will not be the case simply because it is impossible to deduce a particular solution from a general rule. The risk is more indirect but still very real : the thought that juridical decisions must do nothing else than reflect the unjust posited law artificially encloses jurists in passivity, leading to potentially unjust decisions and legal stagnation.
We have seen in this part how the evolution of modern philosophy around nominalism and individualism provided the philosophical bases of juridical positivism. A vision of the right exclusively centered around the individual inevitably consecrated the idea of subjective rights. The idea of subjective rights had in its turn a necessary implication : that the legal system should exclusively refer to the law posited by an authority created by the will of the individuals themselves. These short conclusions allowed us furthermore to fully understand the recurring criticisms aimed at such a system, that leaves the door opened to injustice and to the dysfunction of the legal system. However, the downfall of the notion of justice in the legal world did not stop there.
II. The exclusion of the law from the justice sphere
Juridical positivism stroke a first blow against the notion of justice simply by constructing a vision of the legal system without any reference to it. But the point of this second part will be to show that juridical positivism went even further. Its premises and their application to the legal world led to a redefinition of the idea of justice as well. This new definition was largely internalized precisely due to the success of juridical positivism. Yet, it made it remarkably improper to the needs of law, achieving its relegation from any “serious” juridical reflexion.
Such a redefinition was inevitable : the classical acception of justice that we have seen in the introduction was simply incompatible with the nominalist and individualist premises of juridical positivism. In fact, we saw that the classical notion of justice tends to give to each his deserved share of the goods. It is a state of equilibrium extracted from the social reality in a purely objective way : that is why Thomas d’Aquin found that justice seeks an “objective middle”. It was precisely such an objective essence of justice that a nominalist and individualist vision of the legal system could not bear. Like rights had to be grounded in the essence of the individual itself, the notion of justice could not refer to any objective reality existing in nature but had to be rooted in the only existing moral reality : the individual. Hence, justice was redefined in a subjective way. The success of juridical positivism consecrated this subjective idea of justice in the minds of jurists.
In fact, the notion of justice jurists receive today from common thought is very far from the classical one, and owes a lot to the work of Kant. Kant tried to reconstruct the virtue of justice by mainly focusing on the subjective morality of the individual. All our science of what ought to be has to be defined from our own conscience, our own reason, from an inner, subjective source. It was precisely this subjective source of justice that resonated with juridical positivism and its philosophical premises. Juridical positivism translated the Kantian subjective acception of justice into the legal world, erasing its classical objective conception, and transforming the ordinarily received opinion of jurists about justice. Where Kant’s idea of justice was focused on the individual moral standard, his experience of the law can be considered less authentic. Hence, the redefinition of the notion of justice based on a Kantian subjective acception made it at the same time remarkably improper to the needs of law. Indeed, the deficiencies of the subjective Kantian acception of justice, when applied to the law, are the following :
(1) Utopian : the Kantian philosophy created a very idealized image of justice. The definition of Kantian justice supposes a perfect world, in which all men are equal (before health, culture…), in which there is no war, and all violence is illegitimate. One can hardly see how rules of law could be deduced from such a world, or how conclusions drawn from it could be of any help for judges.
(2) Fixed : the requirements of justice are drawn from the individual’s moral obligations, that do not owe anything to the objective and moving facts of history, but claims to be all rational. Deducing the principles of justice from immutable moral principles requires a justice fairly indifferent to circumstances of time and place that is, again, hardly of any use to jurists.
(3) Vague : most importantly, justice is defined from the subjective intentions of individuals. Kant defines the just as an action expressing an intention in conformity with one’s moral duties, the first amongst them being the principle of the respect due to the grandeur of the human person. Yet, it should be clear that such a definition of justice is, again, of little use for jurists. It might be very effective for an individual to evaluate the morality of his own actions, to guide a set of morals. However, when it comes to edict laws, or determine the action of judges, what precisely is the “grandeur of the human person” ?
(4) Impracticable : if I pay my taxes merely out of fear of being caught, this act is unjust under a Kantian subjective conception of justice (my intentions are not in conformity with my moral duties) : should the judge aim to punish such a behavior ? But how would he know ? Is it not partly the case for anyone ? How could the judge determine to what extent fear motivated my decision, and to what extent it did not, in order to punish me accordingly ?
Hence, the subjective redefinition of modern justice in the legal world led to the common perception of justice that most jurists have today as a blurred, vague and utopian notion, disconnected from the moving reality of the practical needs of law. Drawing a series of juridical rules from pure practical reason can only lead to pure arbitrariness : the notion is so unfit for the law that one can deduce from it completely opposed legal principles based on one’s subjective feeling of the “human grandeur”. Which makes it impossible that the just be the aim of law.
What was to be demonstrated in the first two parts of this work could be summarized by the following sentence : the rise of juridical positivism in modern legal philosophy involved the exclusion of justice from the law, as well as the exclusion of the law from justice. The separation of the two worlds was complete. Of justice, we made a high notion whose realm is much more the inner self of the individual than the regulation of the legal system. Of law, we made a more realistic one, restricted to the indirect expression of individual wills through the posited acts of the competent authority. Jurists largely internalized the idea that justice does not and should not belong to the legal system. Should we agree ?
III. An untenable distinction
The critical tone of the paper and the references to Mr Villey’s writings might not leave much suspense as to the answer that will be defended here. Just as it has been artificially constructed from a positivist vision of law founded on individualist premises, the distinction between law and justice can be deconstructed. Now, stating that the distinction can be deconstructed obviously does not mean that it has to. Some of the flaws inherent to juridical positivism were already mentioned above : the belief that the legal system is exclusively constituted of posited laws leads to the passivity of judges and potentially unjust decisions. Hence, the separation between justice and law must be deconstructed by returning to the classical objective acception of justice, coinciding with the definition of the law itself, in order to avoid the unacceptable risk of creating unjust legal systems.
This opportunity can be taken to briefly address a criticism that a positivist could oppose to this last point. Someone like Hart, in particular, would probably say that a large majority of positivists (though not all of them) do not draw from their view any positive moral obligation to obey the posited law. The legal system is exclusively composed of posited laws : it does not mean that these laws are good, or that we should obey or apply them. On the contrary, for Hart, one should always submit law to an independent moral assessment. Rather than leading judges to passivity and allowing unjust decisions, does positivism then not push us to morally assess the law before applying or obeying it, hence preventing unjust decisions while maintaining the separation between justice and law ?
This criticism is not convincing for two reasons :
– On a purely practical level, one can doubt that such a moral assessment of law would have much effect in reality. In fact, not obeying the law posited by the competent authority would have very serious implications for the individual. The same goes for the judge that would apply a posited law in a way that radically differs from the ideology of the sovereign authority. German citizens and judges under the nazi regime might have perceived posited law as morally wrong ; it did not stop such a system, in practice, from producing unjust decisions. One cannot make such a control effective without admitting justice into the very definition of law, i.e without reinjecting justice into the very definition of law.
– Even if we put aside such practical considerations, what kind of “unjust decisions” would such a moral assessment of the law prevent ? Decisions that are unjust in an objective, classical sense ? Probably not : such moral assessments, in conformity with the ordinarily received opinion about justice, will in all likelihood be subjective moral assessments aiming to prevent what a particular judge or citizen considers as subjectively unjust. Such a control of the legal system presents the same disadvantages as the subjective notion of justice we already mentioned : applied to juridical decisions, a subjective moral assessment of law will lead to prevent what one considers as subjectively unjust, which, due to the vague nature of subjective justice, can only lead to a purely arbitrary control. One cannot efficiently control the justice of judicial decisions without coming back to an objective acception of justice, that is observed in nature and determined through a constant dialectic process inside the legal system. Since the objective acception of justice defines and enforces the rights of each citizen, which is precisely the role of law, coming back to such an objective acception means nothing more than reinjecting law into the very definition of justice.
To summarize, we did, answer the questions raised in the introduction. The individualist and nominalist premises of juridical positivism induced a subjective redefinition of the notion of right on the one hand, and of the notion of justice on the other hand. Such a phenomenon induced two closely linked and mutually reinforcing evolutions : the exclusion of justice from the law sphere, and the exclusion of the law from the justice sphere. Yet, the distinction between the two notions is dangerous, due to the simple and yet overlooked fact that it induces the unacceptable risk of creating an unjust legal system. The positivist attempt to stick to the separation of law and justice while avoiding unjust decisions by arguing in favor of the moral assessment of laws did nothing else than make even more explicit the need to reject such a separation.
Let’s end with the following idea : juridical positivism introduced an artificial distinction between two notions that belong together. The vision of law based on nominalist, individualist and thus subjectivist premises from which such a separation arises is deemed to fail. Since law is a system of social relations, it must, as such, be grounded in societies considered as natural realities. One must begin by accepting that the human person is a political animal, “naturally” political, which is precisely what the traditional objective definition of law and justice is all about.
- Michel Villey, La formation de la pensée juridique moderne, Presses Universitaires de France, 2013.
 : This first definition of justice will be referred to as the “classical acception of justice”.
 : I will no be analysing the relation between every aspect of positivism and justice ; that is why the focus will be set on these “basic philosophical roots” of positivism that can be considered as a kind of smallest common denominator between its different acceptions.
 : Abrégé de droit naturel classique, Archives de Philosophie du Droit, n°6, 1961 (english translation Guillaume Voilley, Epitome of Classical Natural Law, Griffith Law Review, 2000).