The first virtue of the law courts and the first virtue of the law

Legal Theory 13 (2):101-128 (2007)
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Abstract

Justice, you might think, is the first virtue of the law. After all, we call our judges justices, the administration of law the administration of justice, and the government's legal department the Justice Department. We should reject this Priority of Justice for the Law in favor of the more moderate Priority of Justice for the Courts, the view that justice is the first virtue of the law courts. Under its comparative conception, justice is distinguishable by its concern with the relative positions of subjects. I claim that legal duties divide into primary and secondary, that primary legal duties are not essentially comparative, and that this impugns the Priority of Comparative Justice for the Law. Still, the bipolar structure of litigation appears to suggest that comparative justice is the first virtue of the courts. I explain why that is not so. I then introduce a desert-based conception of justice I dub requitative justice. I argue that the Priority of Justice for the Law cannot draw succor from this conception of justice because primary legal duties are no more requitative than they are comparative. However, the special affinity between law courts and secondary legal duties suggests that requitative justice is the first virtue of the courts. Finally, I concede that the Priority of Justice for the Courts gives us reason to accept the Priority of Justice for the Law after all, if we accept the common Priority of Courts for the Law, the view that the courts are the first institution of the law. We should not do so, however

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Hanoch Sheinman
Bar-Ilan University, Ramat Gan

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References found in this work

A Theory of Justice: Revised Edition.John Rawls - 1999 - Harvard University Press.
The Concept of Law.Stuart M. Brown - 1963 - Philosophical Review 72 (2):250.
Practical Reason and Norms.Joseph Raz - 1975 - Law and Philosophy 12 (3):329-343.

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