A Passion For Justice ─ The Natural Law Foundations Of Lord Denning’s Thought And Work -- By: Andrew Phang
A Passion For Justice ─
The Natural Law Foundations Of Lord Denning’s Thought And Work
There is a constant tension in the law between certainty on the one hand and fairness on the other. While it is true that both are not necessarily incompatible with each other, there are numerous occasions where conflicts do occur. Not surprisingly, therefore, the focus in English and (probably) Commonwealth law is on the former. This explains, in large part, the rule-oriented and positivistic nature of law in these various legal systems.2 The primary concern in this regard is with the maintenance of the objective and, consequently, of stability, eschewing any descent into the vagueness and subjectivity that a contrary approach might entail. There is, in other words, no necessary connection as such between the law on the one hand and morality on the other.
There is much merit in the approach mentioned in the preceding paragraph inasmuch as it avoids unnecessary uncertainty once the applicable legal rule(s) have been identified. However, as already alluded to above, the major objection to such an approach is that, on occasion at least, the application of the applicable legal rule(s) does not result in what is felt to be a fair result. The counterargument to this critique is, as also already alluded to above, the proposition to the effect that what is fair is subjective and that, this being the case, it is preferable to adhere to the existing rule(s) and allow Parliament to change the law if it is felt to be unsatisfactory. Such a counterargument loses force, however, if it can be demonstrated that a fair result in the circumstances of the case is not subjective but is, rather, premised on an objective set of higher-order morality. This is, admittedly, a difficult argument to run, particularly in a pluralistic world. But a pluralistic world does not necessarily entail an absence of objective or universal values. However, there remains the problem of justification. If, indeed, such higher-order values exist, how are they to be justified? Indeed, can they be justified in the first instance? After all, are not most (if not all) arguments of this nature subject to the ‘Humean guillotine’? In other words, one cannot derive, from a purely rational perspective’, an ‘ought’ from an ‘is’.3
The ‘Humean guillotine’ is, however, only applicable to a process of derivation on purely logical or rational grounds. It does not impact on a process which does not rely on derivation or, alternatively, on a process where derivation is not dependent (wholly or mainly,...
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