In this blog post, we take an in-depth look at the tension and harmony between justice and legal stability, which are core values of law.
The values that laws should realize are generally referred to as “legal ideals.” Legal ideals are guiding principles that exist above positive law, and they also serve as criteria for evaluating the legitimacy of laws. Among legal ideals, the most frequently mentioned is “justice.” Justice can be summarized as the principle of treating “the same as the same and the different as different.” This requires applying the same standards to similar cases and different standards to different cases.
However, although this concept of justice can provide a certain direction for determining the specific content of the law, it is not sufficient as a practical guideline for judgment. This is because justice does not provide a specific perspective for determining what is “the same” and what is “different.” In other words, justice merely instructs “proportional treatment” without clearly defining the specific methods or criteria for judgment.
Law is essentially a means of maintaining order in community life. Therefore, law must exist as a universal order that transcends the opinions of various individuals and stands above all people. In this sense, securing social order through law, or legal peace, is an essential condition for the survival of human society and can be said to be a core task that law must fulfill.
Against this backdrop, we recognize the need for another legal ideal besides justice. That is “legal stability.” Legal peace presupposes a firm and consistent legal order, which requires the positivity of law, that is, laws that actually exist and are enforced. Positivity is based on concrete social facts, and positive law presupposes the practical authority and power to enact and maintain it.
If it is impossible to determine what “justice” is, then at the very least, it must be clarified what “the law” should be. Furthermore, the law must be determined by those who have the power and authority to enforce it. In this context, the legitimacy of positive law is based on the following three elements.
First, the stability provided by positive law; second, the peace that positive law brings about between conflicting legal opinions; and third, the fact that it ends the state of anarchy in which everyone fights against everyone else and establishes social order. In other words, even when it is difficult to make a just judgment, positive law can be justified in that it performs the basic function of law by maintaining a minimum level of social order.
Legal ideals are inherently complementary and cooperative, but tensions and conflicts sometimes arise between them. There are even cases where certain ideals must be sacrificed to a certain extent in order to realize other ideals. For example, due to the requirement of legal stability, positive law tends to remain in effect regardless of whether its content is just or not. Legal stability requires continuity and predictability of law, but justice requires that law adapt flexibly to social change. Therefore, the validity of law does not necessarily guarantee legal stability.
Nevertheless, for any change in law to be justified, there must be clear evidence that the need for change outweighs the benefits gained from the continuity of existing law. For example, even if existing laws are rendered ineffective under a revolutionary government and new laws are effectively enacted, under certain conditions, such changed laws may be recognized as “current laws.” This shows that the ideal of legal stability can justify the abolition of existing laws. In addition, in order to protect individuals’ trust in a consistent and stable legal situation, violations of the law may sometimes serve as grounds for the creation or extinction of rights. This suggests that legal stability serves another function, namely the protection of trust.
When legal opinions conflict, reaching a conclusion is considered more important than whether that conclusion is truly just. This is because the existence of minimal law is preferable to lawlessness. The most fundamental task of law, which everyone recognizes as necessary, is legal stability, or in other words, the maintenance of peace and order.
Judges are the ones who make the law work, and their job means they have to follow the law before their personal feelings or sense of justice. So, judges can ask, “What is the law?” but it’s not their job to decide if the law is fair.
This role of judges sometimes conflicts with the position of defendants who question the legitimacy of the law, which can lead to inherently tragic situations in court. For example, when an individual who has no choice but to break the law in accordance with his conscience stands before the court, the judge must impose a punishment in accordance with the law. At this point, the law goes beyond simply demanding punishment for a crime and imposes an obligation even on individuals who are true to their conscience to accept punishment. This situation is an extreme example of the conflict that arises between the fundamental structure of the law and human conscience. The ancient Greek philosopher Socrates was clearly aware of this characteristic of the law.
Even though he had the opportunity to escape the death sentence handed down to him, he refused to do so and chose to accept the sentence. He said, “
Do you think that a country can remain standing and not be overthrown if a judgment once handed down in that country has no effect and is invalidated and destroyed by an individual?”
These words strongly emphasize the importance of the inviolability and stability of the legal system, even if the judgment is unjust. Socrates believed that even if an individual’s conscience conflicts with the law, the social chaos that would result from ignoring the law would be a greater evil.
