Saturday, March 13, 2010

Substantive justice?

Lev. 19:15. "You shall do no injustice in judgment; you shall not be partial to the poor nor defer to the great, but you are to judge your neighbour fairly."

The idea of justice is ancient but what it means is unclear to this day. Is a law that is enforced in procedurally fair way justly enforced? Or does the substantive justice of the law matter -- can an unfair law be applied justly? The question is quite concrete as shown by two recent cases.

The recent challenge to Canada's prostitution laws, at base, suggests the laws are unfair (and dangerous to prostitutes). The laws are 'unjust' -- they criminalise behaviour related to otherwise legal activity. The basic challenge has nothing to do with trial fairness rather it is the law itself attacked.

Similarly, the recent Court of Appeal decision upholding Canada's gun laws was based on a finding that the justice of the law (taking property of gun owners) is not an issue for the Court.

These two cases -- both of which seem to me to have been legally wrong headed -- fall on the left and right politically but have a common thread -- substantive justice.

Canadian courts do review the substance of laws but only in the context of other laws (say the Charter or the Constitution Act, 1867). The underlying 'justice' of a law is not a matter for the court.

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