Almost all of the time, when a court resolves a dispute—a claim to what the Constitution awkwardly characterizes as a “legally demandable right” —its reference will be the law, and that is expected to be the case. Similarly, when the constitutionality of a statute is in issue, or the validity of an executive act, the inflexible reference point will be the Constitution, and once more that is as it should be so.
Now, to say that a decision is legally correct, is that the same thing as saying that it is just? Many will feel uncomfortable with that equation, but then the question immediately follows: If one is not willing to concede to the law’s dictates the title of justice, what then is the latter’s measure?
This is not only a philosophical conundrum. It is a difficulty that makes itself felt also in the realm of law, especially in the application of the law. So it is that under the traditional precepts of hermeneutics, when a “literal interpretation” (itself a troublesome concept) leads to “absurd” results—and unjust, unfair, unreasonable will count as “absurd”, then since it should be presumed that the Legislature intended what is just, then recourse must be to a non-literal construal.
So too, it is accepted that principles of equity play a role in judicial decisions, although always with the caveat that they may not substitute for positive law —the positivism of modern, bourgeois law! Justice Isagani Cruz put it well in one of his decisions: The law is interpreted to achieve just results. And Justice Justo Torres put it with almost mystical lyricism when he wrote: “The measure of a law is the measure of its justice.”
But that does not yet answer the question: Whence, the principles of justice? A natural law theorist will insist that reason yields the principles of justice. Rawls advances an interesting theory: If people were hypothetically ignorant of their own inclinations, biases, prejudices, preferences and on the assumption that they are reasonable, they would choose to have as wide a range of liberties as is possibly compatible with a similar range for others. Ricoeur, with typical acuteness, traces the issue of justice takes up the problem of justice from the juridical where one asks “Who is the subject of rights?” Through the moral: “Who is the subject worthy of esteem and regard or respect?” To the anthropological: “What is the basic characteristic of the self that makes it capable of esteem and respect?”
The itinerary is difficult, and the answer is hardly straightforward, but we cannot withdraw from reflecting on justice, especially when we are worried that the spate of unabated EJKs is making our society an unjust society, and when the deliberate culture of fake news and “alternative truth” is wreaking havoc on our sense of what is right—and shaking to the core our concept of justice!
True, social realities that form the contexts of discourses on justice are “constructs” but there is also something constant and invariable about them that makes, say, torture or the abuse of children universally repugnant, and that allows for universal condemnation of its perpetrators.