The Morality of Justice

"To a certain degree, legal education can rather blind us to what is going on in cases, given the tendency to see law through law, rather than to ask the broader questions about whether the policy of the law is fair or sustainable outside the operation of legal rules"

Mason JK, 2007, “The Reproductive Tort”, Halsbury’s Laws of England Centenary Essays 2007, United Kingdom, pp 127 to 146 at p127 and note 2 with reference to Priaulx N “The Harm Paradox: Tort Law and the Unwanted Child in an Era of Choice” (2007)

I really would not regard this as critical but rather, reflective sum up of my academic experiences so far. The issue of policy has always been both a mysterious and hazardous legal domain to venture into, often running into the danger of facing dismissal remarks. Whilst so, it is of substantial risk (as a matter of exam techniques) not to give proper acknowledgment to its weighty effect on applicable law.

From a personal perspective, raising the issue of policy is a desperate attempt of any good counsels in trials. The Courts generally find great comfort operating within the well dug trench walls of established precedents. This is often even more evident in the decision of lower courts where in some jurisdiction, it is statutory mundane or practice directions to follow the decision of superior courts as closely as practicable.

So does this suggest that the privilege of policy discussion remains inevitably in the realm of superior Bench members and committed academics?

My respond is negative.

Policies, whether legal or political, revolves around the dynamics of morality. What then comprise 'Morality'? In its most spartan form, morality is a collation of acceptable personal responses to an action (often objectionable) of another. The tendency of the path of societal reaction in respond to an issue of public concern. This I boldly suggest is the soul of justice.

Whilst the relationship of justice and law remains both complex and in some situation vague, the vital motivator of any established justice system was the providence of a fair and just forum engineered towards effective dispute resolution. Where policy stands in adverse, the parties (whether with or without the assistance of counsels) ought to have vested rights to challenge it on the grounds of social morality. Simple reason, the Law cannot operate against the public will and in a democratic society,public will formulates policies. Not in the cold chambers of a conservative
Bench where strenuous exercise of book flipping is performed. Not behind the grey veil of academics where cynical observations are released.

It is in the warm rays of public eyes where public policy is rendered the slave.