The notion of justice

The notion of justice appears in many different contexts, and is used to convey a wide variety of meanings. This column explores the terminology used to refer to the notion of justice in English and Chinese and its origins and meaning in Western jurisdictions and China.

The English word, justice, has its origins in the Latin word jutus (or iustus), meaning just, equitable or fair. The root of the Latin word is jus (or ius), which was the term used in ancient Rome to refer to a right to which a citizen was entitled as a result of citizenship. Because the law was the source of such rights, the term jus also came to mean the law, the courts in which rights were protected, and the broader administration of the legal system.

The notion of justice in Latin was embodied in the word justicia. In Western culture, the notion of justice has often been depicted in the form of a blindfolded lady, Lady Justice, who carries a sword and a set of scales. The blindfold represents objectivity and impartiality, and the concept that everybody is equal before the law.

The scales represent the need to weigh or balance the evidence on both sides of a dispute before arriving at a decision, and reflect the concept of fairness. The sword represents swift and final punishment, and is usually held with the blade pointed downwards, or below the scales, to show that the weighing of evidence precedes punishment.

Justice was one of the four cardinal virtues recognised in traditional Christian theology, and by philosophers such as Plato. The other three cardinal virtues were prudence, courage and temperance.

Different types of justice are commonly identified. Substantive justice refers to the need for the content of the law and its outcomes to be just, and for the law to be interpreted and applied in the correct way. Procedural justice refers to the need for legal processes to be fair and transparent. In English law, natural justice overlaps with procedural justice and refers to the rule against bias and the right to a fair hearing. More broadly, social justice refers to the need to achieve a fair or just relationship between individuals and their society.

Different theories have also been formulated to provide a rationale for the notion of justice. These include: The theory of distributive justice, which relates to the distribution of wealth within society; the theory of restorative justice, which relates to repairing the harm caused by wrongful conduct and resolving contradictions between people; and the theory of retributive justice, which relates to punishment.

Irrespective of the type of justice or the specific theoretical basis for justice, most people would accept that the notion of justice is inextricably connected to the concept of fairness, and that it operates on both a public, collective level and also on a private, individual level. In other words, it is necessary both to achieve justice, as between the state and its citizens as a collective body, and also to achieve justice for individuals, whether in relation to their dealings with the state or their private dealings with other individuals.

In addition to fairness, the notion of justice is connected to the concept of righteousness, which refers to being morally right, or conduct that is morally right. It is reflected in the golden rule that is recognised in many faiths, namely: “Do unto others as you would have them do unto you”. Of course, each of the twin concepts of fairness and righteousness defines and informs the other, and varies according to culture and tradition. It is therefore very difficult, if not impossible, to formulate a theory of justice that has general application across different cultures and traditions.

In modern English, the word justice is used as a title for judges, and reflects the authority of a judge’s role and the respect that should be paid to that role. The title operates alongside other protocols and traditions that are designed to maintain respect for the legal system, including the formal attire that judges and lawyers wear in court (for a discussion about court attire, see China Business Law Journal volume 10, issue 9: Wigs and robes).

The word justice is also commonly used to refer to the administration of justice generally. Many countries have a department or ministry of justice, which is responsible for supporting the various institutions within the justice system, including the courts, tribunals and prisons.

I am grateful to my friend and colleague, Dr Delia Lin, for her helpful comments on the distinction between zhengyi [正义] and gongyi [公义], and also for sharing her insightful research on the Chinese notion of justice.

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com