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Much of the discussion, both in the article and in the comments, seems to hinge on having a good definition of legal justice. May I suggest the following: "Lega

Much of the discussion, both in the article and in the comments, seems to hinge on having a good definition of legal justice. May I suggest the following: "Legal justice occurs when all individual persons are treated equally and fairly under the law, and when no person is allowed to wrongfully take advantage of another." As others have mentioned, I think this philosophy's weakness is that it leads to the very opposite of legal justice. There ought to be an objective legal standard that doesn't change based on who appears on the docket, the judge's unconscious bias/prejudice, how the judge is feeling about the case, his/her sense of how society is faring, or what he/she had for lunch. That's why legislators write law and judges interpret law, and why "legislating from the bench" is an aspersion and not something to which good judges aspire. Legal subjectivism is just a big invitation to injustice -- which indeed can and does happen when the judge and legislator are the same person. (Hopefully he/she is not also the executioner.)

pdonis 6y ago
> There ought to be an objective legal standard There can't be, because there is irremovable subjectivity in your definition of legal justice: "equally and fairly" are subjective, and so is "wrongfully take advantage". There is no way to write an objective rule that will handle every case. You have to apply human judgment to each individual case, and human judgment will always be subjective. Written laws attempt to set down objective rules, but such attempts will never completely succeed.
- TimTheTinker 6y ago
  One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties. I agree that applying them in particular cases is inescapably subjective since judges are subject to human limitations. But in doing so, one ought to strive for objectivity as much as possible. A good ruling is good insofar as it was able to preserve, despite the judge’s human limitations, fidelity to the law and to legal justice.
  - pdonis 6y ago
    > One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties. No, but one does have to have some objective way to test for them. And there isn't any. Ultimately, every person has to judge for themselves what does and does not count as equality and fairness.
    - TimTheTinker 6y ago
      > one does have to have some objective way to test for them I disagree. Just because a fully objective test is impracticable doesn’t mean the ideal doesn’t exist or shouldn’t be taught or strived toward—or that objective values and duties don’t exist. Beyond that, appeals courts exist as a check on injustice in lower court rulings. They do try to objectively verify whether a given ruling was just. Yes, individuals do have to “judge for themselves”, but there are objective standards to apply and evaluate decisions by, even if those standards can only be intuitively defined.
      - pdonis 6y ago
        > there are objective standards to apply and evaluate decisions by, even if those standards can only be intuitively defined To me this is a contradiction in terms: "only intuitively defined" means human intuition, i.e., subjectivity, is involved. I guess we'll just have to disagree.
        TimTheTinker 6y ago
        I think it's more of an acknowledgment that Gödel's incompleteness theorem applies to any system of reasoning or knowledge. Even known true statements can't be proved all the way down --- at some point they have to rest on axioms that are assumed (or taken on faith). We could take it a step further and discuss what establishes objective moral values and duties, but that plants us firmly in a discussion centering around worldviews and their truth/falsehood. All to say, I believe there is an objectively true worldview upon which objective moral values and duties rest, upon which an objective jurisprudence can rest, upon which good (though inescapably subjective) judicial opinions can be issued. Maybe I'm being overly pedantic, but I'm frustrated with what seems an intentional departure from objectivity (and an originalist jurisprudence to boot) as the goal in certain circles.
bluetomcat 6y ago
Casuistic judgement is better able to consider the moral and ethical background of a case, without trying to associate it with any written legislation. Laws can sometimes be crossed while still having a high moral standard accepted by the society. Conversely, having low morals is not punished by the law most of the time. Good moral dictates the actions of people at a much finer level than what any law can regulate.

pdonis 6y ago

> There ought to be an objective legal standard There can't be, because there is irremovable subjectivity in your definition of legal justice: "equally and fairly" are subjective, and so is "wrongfully take advantage". There is no way to write an objective rule that will handle every case. You have to apply human judgment to each individual case, and human judgment will always be subjective. Written laws attempt to set down objective rules, but such attempts will never completely succeed.

TimTheTinker 6y ago
One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties. I agree that applying them in particular cases is inescapably subjective since judges are subject to human limitations. But in doing so, one ought to strive for objectivity as much as possible. A good ruling is good insofar as it was able to preserve, despite the judge’s human limitations, fidelity to the law and to legal justice.
- pdonis 6y ago
  > One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties. No, but one does have to have some objective way to test for them. And there isn't any. Ultimately, every person has to judge for themselves what does and does not count as equality and fairness.
  - TimTheTinker 6y ago
    > one does have to have some objective way to test for them I disagree. Just because a fully objective test is impracticable doesn’t mean the ideal doesn’t exist or shouldn’t be taught or strived toward—or that objective values and duties don’t exist. Beyond that, appeals courts exist as a check on injustice in lower court rulings. They do try to objectively verify whether a given ruling was just. Yes, individuals do have to “judge for themselves”, but there are objective standards to apply and evaluate decisions by, even if those standards can only be intuitively defined.
    - pdonis 6y ago
      > there are objective standards to apply and evaluate decisions by, even if those standards can only be intuitively defined To me this is a contradiction in terms: "only intuitively defined" means human intuition, i.e., subjectivity, is involved. I guess we'll just have to disagree.
      - TimTheTinker 6y ago
        I think it's more of an acknowledgment that Gödel's incompleteness theorem applies to any system of reasoning or knowledge. Even known true statements can't be proved all the way down --- at some point they have to rest on axioms that are assumed (or taken on faith). We could take it a step further and discuss what establishes objective moral values and duties, but that plants us firmly in a discussion centering around worldviews and their truth/falsehood. All to say, I believe there is an objectively true worldview upon which objective moral values and duties rest, upon which an objective jurisprudence can rest, upon which good (though inescapably subjective) judicial opinions can be issued. Maybe I'm being overly pedantic, but I'm frustrated with what seems an intentional departure from objectivity (and an originalist jurisprudence to boot) as the goal in certain circles.

bluetomcat 6y ago

Casuistic judgement is better able to consider the moral and ethical background of a case, without trying to associate it with any written legislation. Laws can sometimes be crossed while still having a high moral standard accepted by the society. Conversely, having low morals is not punished by the law most of the time. Good moral dictates the actions of people at a much finer level than what any law can regulate.