Legitimacy of law as a dialogue between the legislator and his addressees about law and justice

Abstract

Is justice a necessary condition for law’s legitimacy? Traditionally, the legitimacy of law has focused on addressees of the norms — public acceptance or, according to H. Hart, by those who receive and use norms as guidance. Thus, the legislator is preferably neutral about fate of their created norms. Thus, an ongoing dialogue between lawmakers and addressees (primarily judges and officials, but also civil society actors and “ordinary” citizens) is necessary. This dialogue grounds the context regarding the relationship between legitimacy and legality, lawfulness and justice. It is a dialogue about “judicial law” addressed to the moral-legal value of justice — justice as substantive equality (equality in due). Mutual recognition by the legislator and addressees achieves the desired consensus of existing norms. This is how law is legitimized as “judicial law” — due, not because of changing external targets, but because of the rooted idea of justice in the nature of law as the basic value. These values are non-relative but also not autonomous. The author analyses justice as a basic value of law in a necessary connection with other basic values — freedom (equality in freedom) and human dignity. The proposed approach can be at the basis of the discussion how the principles of law correspond. Therefore, the author criticises especially “material equality” and proportionality as a “fair inequality”. By relating legal principles, the basic values of law are embodied in the principles and receive a normative practical orientation, thus obliging lawmakers and law enforcers to follow these principles. The critical potential of justice characterizes general legal principles as requirements of justice. As a general legal principle, justice motivates the addressees of norms to critically evaluate them and to request from the legislator a due “judicial law”. This provides a realistic perspective on the legal policy. A “science of the politics of law” (L. I. Petrazhitskii) could synthesise positive and “natural” law, based on the immanent necessity of “rightness” and justice. This would facilitate legislative innovation with legitimating sanction of “judicial law”. 

Keywords:

justice, legitimacy of law, basic value of law, principle of law, positivism, natural law, legal policy