STANDARDISM, INJUSTICE, AND CAPRICE

O.T. FORD

It is the program of virtually every state to inculcate in its subjects an inability to distinguish between enforced law and true justice. This is thankfully not always successful; but where successful it increases the power of the state for dominion, and increases the influence of dominion on the state. Confusion between law and justice works in two directions. In one case, individuals assume that law is justice, and will adhere to law, or, in the case of magistrates, enforce law, as if it were just. In the other case, individuals assume that justice is law. As there is no agreement on the nature of justice, there is no agreement on the nature of law.

Unjust law is unjust, of course. But there are many who operate on theories of legal positivism and law-and-order mentality who believe that there is essentially no such thing as unjust law. That which is law de facto all subjects have a moral obligation to obey. This viewpoint lends moral authority to the state, and is thus very popular among those whose power derives from the state. It is also, not coincidentally, only compatible with dominion. It is a restatement of “might makes right”, which is a notion supposedly obsolete under liberal society. But its persistence demonstrates how little progress liberalization has truly made.

The idea, if not the acknowledgement, of common law is widespread in the world. Magistrates in states where constitutional and statutory law are theoretically written routinely ignore that written law in favor of an uncodified version of justice existing only in their minds. But they are quick to attribute their actions to the written law. When jurists in particular use the terms “illegal” and “unconstitutional” to describe acts and states which are only disagreeable to them personally, they are perpetuating the rule of caprice. They are making it possible for any positive action to be undone, for any negative action to be committed, on the same grounds. And this is usually not a question of interpretation, as it is portrayed. Language can be ambiguous at times, and sometimes severely confusing, but it lacks the ambiguity which we would otherwise have to attribute to it if we did not realize that the written language of codified law is simply not a concern for many, that they are aware that it has not the meanings they claim and yet make the claims anyway.

The most important standardist goal is the acceptance and realization of true justice throughout the world. But corollary to that goal is the codification of justice, so that the general conception of justice is known to all, and its enforcement cannot be subjective or capricious, and individuals will have the ability to hold the state accountable, just as the state attempts to hold them accountable. As the conception of justice evolves, the codification must be changed, so that the integrity of written law is preserved. Standardists can be pleased with the achievement of justice in any form. But if that justice is based on the will of an individual, or fallacious reasoning, its achievement will be fleeting, and its form more conducive to dominion than to stewardship.

Proposal for a standard of justice

© O.T. FORD