Wielsch, Dan, Law and Contemporary Problems
INTRODUCTION: JUSTICE UNFIXED
Justice, arguably, is a relational concept. This is inherent in the early definitions of justice that link the term to the virtue of individuals. More precisely, Aristotle refers to justice in a general sense as the most perfect virtue because it is displayed towards others (pros heteron). (1) The famous formula suum cuique tribuere also requires a relational understanding. (2) This concept is composed of variables that are in need of determination if a specific conception of justice is to result; it leaves open the object of assignment and, at the same time, it presupposes already existing standards about what is due. This openness is not a deficiency of the formula but, instead, a call for reflexivity, which aims at justifying the relevant standards of appropriateness. At least since the natural rights theories in modern times, the matter of justice has been focused on the configuration of rights and duties and therefore on relations vis-a-vis others. Whereas the operational dimension of justice is about the compliance of actions with given legal norms that configure rights and duties--administered by courts that are supposed to treat like cases alike--the second reflexive dimension is about the justification for these norms from an impartial point of view.
In the past, both dimensions of justice were mainly linked to the state as a result of methodological individualism and legal statism. Although claims of justice are usually viewed as primarily addressed to individuals and their actions, the state comes to the fore when--in the operational dimension--moral reasoning itself requires an effective legal system for the exact administration of justice. Regarding the reflexive dimension of justice, the focus on the state is mainly due to the idea of democratic law. An impartial justification of legal norms is thus supposed to be achieved through that procedural universality that is characteristic of democratic legislation and that makes possible the equal consideration of all interests involved. (3)
This double fixation of the relational character of justice--its reference to individual action as well as confining its reflexive dimension to state law--becomes inadequate where the normative environment of people cannot be assessed solely in terms of individual rationality but must be viewed as constituted by the imperatives of emergent communicative systems following a special functional logic. The inadequacy of this dual focus is also apparent where regulation of social relations in important fields moves from the state to private actors.
One might expect that these developments resonate especially in the domain of contract law. This is due to the fact that contract is the main legal form by which individuals configure the rights and duties that are to apply to their interaction with each other. Contracts may therefore function both as an entry point for emergent rationalities to influence the normative configuration set out by the parties and as a transmission device to make specific private orders normatively binding throughout society. In either way, social normativities compete with state law to assert normative control in and over bilateral relations. From a factual perspective, this means that the law must come to grips with phenomena of social regulation without assuming a center of normative hierarchy that would be able to integrate the different social demands involved. Regarding the requirements for justification of legal norms, this implies that procedural universality as promised by national legislation cannot operate as the touchstone for impartiality any more. As it seems, legal analysis needs to reflect on the public dimension of contract especially where the assumption of representing public interest through the state cannot be maintained. Here, the law is in need of new modes of justification.
CONSTRUCTION AND RECONSTRUCTION OF NORMATIVE WORLDS