Beyond Justice by Agnes Heller (1987)

Retributive Justice (excerpt)

To avoid any misunderstanding, I repeat that so far I have discussed only an abstract model. I have presumed that the laws (and first of all the criminal law) enjoy legitimacy and are regarded by the majority as just. It is obvious that in a period of dynamic justice the situation is complex. Certain laws are constantly criticized and rejected as unjust, even if the legal system is considered just. None the less, this abstract model makes sense, for, as long as a law remains in force, to breach it is prohibited, even if we regard it as unjust.

Everywhere there are unjust laws; that is to say, everywhere there are laws regarded as unjust. If people have the right to query and test the justness of a law in public, and if a change in the sense of justice can make this law change, then laws should normally be obeyed for as long as they exist. They should be obeyed, first and foremost, by the judiciary, by state officials, administrators, and everyone in a position of power. I completely agree with Dworkin[24] (as against legal positivism) that the administration of legal justice is not tantamount to applying rules, and that, at least in the ‘hard cases’, the judge must have recourse to general or universal principles to arrive at a correct decision, even if the relevant laws are considered just. But what if the entire legal system is unjust? Should the judiciary then apply the rules at all? Or should they resort to principles, and in the first instance to moral principles, in every case involving judgement? This is the matter Hart addresses in his discussion of the Radbruch case. Radbruch, once a legal positivist, in drawing the lessons of Nazism and its ‘legal system’, concluded that ‘every lawyer and judge should denounce statutes that transgressed the fundamental principles not as merely immoral or wrong but as having no legal character’.[25] In a brilliant paper on the Jewish question in Hungary, touching upon the last chapter ‘The Holocaust’, Istvan Bibo, the Hungarian political theorist, concluded precisely the same thing. Bibo argued that the laws of a genocidal regime are null and void, and outrightly blamed Hungarian officials for their reluctance to forge papers for the persecuted because of an ill-conceived sense of legality.[26] Our sense of justice suggests that both Radbruch and Bibo were right. But why is this so?

To answer this, the following questions must be answered:

1 Can single unjust laws make the whole legal system unjust, irrespective of the justice or injustice of all other laws?

2 Can single evil laws make the whole legal system evil, irrespective of the justice or injustice of all other laws?

3 Can the administration of justice be a criminal act?

4 Can obedience to the law be morally evil? (Can disobedience to the law be morally good?)

My statement above, ‘Everywhere there are unjust laws’, must thus be complemented by the statement, ‘Everywhere there are certain just laws.’ Even an unjust or evil legal system contains just laws. A further qualification is that, since I am dealing with the present, I am working in terms of dynamic justice.

As to question (1), the statement ‘This law is unjust’ is a statement of devalidation. We claim that the law is wrong, where ‘wrong’ does not mean ‘incorrect’, for one aspect of the law is believed to include evil. If people have the right to state publicly that such and such a law is unjust, and to argue for devalidation, and if it is so that, if this devalidating statement were generally accepted, or accepted by most of the population, the outcome would be that the law in question would be replaced, then, if the law in question really is unj ust, its inj ustice will not make the entire legal system unjust. And this is so for the following reason. If people believed that the entire legal system was unjust, they would publicly declare it unjust, seeing they have the right to do so. If, however, they stated that law A was unjust, but did not simultaneously devalidate law B and law C, then clearly they would consider B and C just.

But what happens if people devalidate a law as unjust but do not have the right to claim this in public? Here the devalidating statement itself is outlawed. And this means the outlawing of dynamic justice. It then follows that to outlaw dynamic justice means to outlaw the claim to justice, to outlaw just procedure, thus to outlaw justice itself. Where justice is outlawed, the legal system cannot be just. Laws do indeed include an evil element, illustrated by the fact that people (a minority or majority) believe that a certain law involves evil (in part or wholly), and, if they suffer via the same law if they speak their minds, the law indeed includes an element of evil. Consequently, the very law that makes the criticism of any law punishable makes the entire legal system unjust, but not necessarily evil or criminal (where the exact meaning of ‘criminal’ will be defined in what follows). If the entire legal system is unjust but not criminal, all the laws are still valid with the exception of the one outlawing the criticism of laws, and the administrators of justice are not criminals simply because they follow the stipulations of the existing laws. To suggest to officials and legal administrators that they should forge papers and documents because the criticism of the law is outlawed would be ridiculous. However, the judges who try to sentence those criticizing the laws, who mete out (sometimes heavy) punishments to these people, are morally and personally responsible for the injustice of the legal system, even though it is obvious that they do not take the brunt of the blame. Political rulers, the genuine fountainheads of an unjust legal system, are fully responsible for the injustice of the law.

If criticism of the law is outlawed, there exists no just procedure for changing the laws considered unjust. Normally, people resort to violence to change such a system. Though violence is always illegal, it can be based on moral right, if, for example, the original violence is incumbent in a law authorized by a dictator. To outlaw just procedure is an act of pure violence. Retribution against free speech is retribution against a rational and moral claim.

Most of the presently existing legal systems are unjust. In an unjust legal system all laws are considered arbitrary. No wonder then that in such a system ‘legal thinking’ is not well developed, either in the minds of the legal authorities or in the populace. Where free speech and criticism are outlawed, political considerations always overrule legalistic ones. Where there is moral merit in defying the law in one particular matter, moral indifference develops in other matters. In East European societies, ‘stealing from the state’ (for example, from state-owned factories) is usually seen as a good joke, though the average person still regards stealing from another person as downright theft.

Concerning question (2), legal systems are evil if they contain even one evil law or statute. A law or statute is evil if it declares war on a group of citizens of the state without real provocation. Declaring such a war means attempting to exterminate the members of this group. This extermination can range from ‘extermination as citizens, to ‘extermination as living beings'; from enslavement to deportation to genocide. The last was the logical outcome of evil laws as they appeared in Nazi Germany, in Russia under Stalin, in Cambodia under Pol Pot, these embodiments of states with a criminal legal system.

Since we live under modernity, since life and freedom have become universal values, since we can judge as repositories of humankind, we can prove our case by having recourse to the supreme values – we can juxtapose the ‘inalienable’ laws of nature as moral laws to the legal system of the regimes under scrutiny. We can do this, though we need not do this, in order to prove our case.

It is not necessary to resort to natural law to regard the unprovoked enslavement of the citizens of a state by their own state as a criminal act. This has always been regarded as a criminal act. The qualification ‘without provocation’ means that no connection whatsoever exists between the act (or forbearance) of a person and the legal sanction. The sanction is levelled at the person as a member of a group independently of any act committed. This is the ‘absolute tyranny’ I referred to in chapter 1. And the contention that absolute tyranny is evil par excellence within the state is as ancient as social philosophy itself. In absolute tyranny the law is nothing but the expression of the tyrant’s will, and, even if this will dons the guise or adopts the shape of the law, it is not law. [27] In fact it contradicts the spirit of all laws. In the passage partly quoted above, Aristotle remarked that the tyrant is the greatest criminal. If this is so then the law expressing the will of the tyrant is also criminal. And it has always been regarded so.

But if the law is criminal, the administrators of justice are the administrators of injustice – moreover, the administrators of evil. The sense of justice demands that the legal system of the absolute tyrant should be disobeyed. Morality and legality are not in contradiction here (as sometimes happens when the legal system is unjust but not evil), for in the criminal legal system there is no law, only the semblance of law.

It is now possible to answer questions (3) and (4). Can the administration of justice be a criminal act? Can obedience to the law be morally evil? If the legal system is a system of evil, a state of absolute tyranny, the administration of justice is a criminal act. Obedience to the law can be morally evil, but is definitely evil if obedience encompasses actions where evil is administered in the name of justice. If the legal system is completely unjust, but not criminal, the judging of political dissidents is an act of injustice (it can be a criminal act, but is not necessarily so). Obedience to the laws is not in itself morally evil. But any authorization of unjust laws, any participation in legislating injustice, is morally evil.

Happy are those who can take legal positivists seriously; who have confidence in the justice of their judges; who believe that laws are important; who can publicly state that some of the laws they live under are unjust. There are very few such people.

I have briefly discussed my design for a utopia. But even the reality to which this utopia has been contrasted is a utopia for most of the denizens of our world. The state of arbitrariness, the state of lawlessness, the state of injustice, the state of evil – these are the overwhelming realities all theories of justice must cope with.