Think
of yourself sitting in a court of law, waiting for justice to be done, and when
it comes, there is only legality. This was the case of Plessy v. Ferguson in
1896, which confirmed racial segregation based on “Separate but equal”. All
these segregation laws were enforced and implemented, but these laws were
discriminatory in nature, which is against morality. This indicates that Law
and justice are not congruent, and justice is not always the end of the law.
Thus, there is a difference between law and justice; law can be without
morality, but justice cannot. Law and legal systems are procedural and make
decisions based on the Supreme Law of the land (the Constitution), but Justice
demands a deeper sense of morality, commitment to fairness, dignity, freedom
and humanity.
The
law is determined by the legal jurist Austin and his version of legal
Positivism, which has the law as the command of a sovereign backed by
sanctions. Aristotle's definition of justice is “giving each his due”. Justice
tells us how the law is to be administered: it has to be fair, humane,
impartial, and it has to be according to the due process of the law. Now comes
morality – it is subjective, but it tells us what is good, what is bad and what
is just, what is unjust.
In
the history of the world, there are many examples of laws that became law, but
had no ethical content. The first and foremost example is the Jim Crow laws.
These were laws passed by white Americans in the southern United States for the
African Americans in 1865. These laws were derived from the concept of Racial
Segregation, an immoral and unjust concept, but legal in nature. This
demonstrates the harm done to morality and the lack of justice for African
Americans, who were deprived of the same facilities as white Americans.
Likewise, the Apartheid state of South Africa (1948-90s) had institutionalized
racial segregation as well.
What
is relevant on this count is also colonial legislation. Many countries were
British colonies, like the United States, Pakistan, India, etc. During the
colonial era, these countries made laws against the rights and benefits of the
indigenous people. Many of the
philosophers also expressed their view on justice; as Aristotle put it,
‘Justice is the highest virtue. This is the value which "law" is
expected to foster.
Law has its own morality, and if it is
inconsistent and unfair, it does not work, was the belief of Lon Fuller. An
example in this regard is the fall of apartheid and Jim Crow laws and the fall
of the colonial era. One such example in this respect is the Fall of Nazi
Germany and the Nuremberg trials, where justice was served by acknowledging
that all the acts of Hitler were against humanity even though he was acting as
an agent of the law.
Now,
a step into the modern era, the hectic developments of technology make morality
more and more relevant. The Cardozo Law Review repository hosts Robert F.
Utter's “Unjust Laws” essay, which explores the concept of “unjust laws” and
the interplay between legal authority and justice. Data collection, artificial intelligence,
and technology that is changing our lives are worrying and dangerous things. As
Uk’s Investigatory Powers Act 2016 which allows intelligence agencies to retain
datasets of people that are personal in nature and outside the interest of the
agencies. The Foreign Intelligence Surveillance Act permits the USA to monitor
Non-US citizens. Although legal, AI facial recognition and biometric data pose
a moral debate.
Within the scope of each of these four areas,
there is a question of morality and justice. In each of these four areas, there
is a question of morality and justice. All this makes morality essential for
justice. Section 302 of the Pakistan Penal Code allows the death penalty. In
many areas, child marriage is allowed, as in KPK, Pakistan, and in Afghanistan,
the age for a girl is less than 18 years.
The
other side of the coin is that there is a distinction between law and justice
and that justice can exist without law, but law cannot exist without justice.
The other side, law is not equal to justice, but justice is equal to law, and
justice may exist without law, but law cannot exist without justice. This is
the subjective view on morality, which is different from culture to culture,
society to society, and thought to thought. A judge offering a verdict based on
what is true or not, in his opinion, would face some challenges in keeping the
peace. Therefore, courts need to put in place objective legal rules, not
subjective ethical beliefs.
In
conclusion, for justice to be served, morality should be considered as the
foundation. In history and in the world today, there are numerous examples in
which laws have been put into action but not taken into account with moral
considerations, leaving justice to fail. Morality and human dignity issues came
up during modern times, and slavery was abolished. When the issue of morality
came up in Brown v. Board of Education, the same stance was taken as was taken
in Plessy v. Ferguson, where the question of morality was not raised. If a
legal system is not based on morality, it is lawful, but it is not just.
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