Justice through legal dispute

Abstract

This study asks what justice is in the situation where two sides are disputing and, in particular, how a third party should act justly in deciding the matter. A paradigm of this situation is legal dispute, and in the main body of the thesis I analyse the ethics of legal dispute resolution, such as the activity of hearing both sides, and I illustrate how the origins of certain abstract conceptual structures for understanding justice, action, and rights beyond the judicial setting lie in this concrete context of justice. The study proceeds in three parts: 'Formal, Substantive, and Procedural Justice'; 'Judicial Determination of Relevant Similarity and Difference'; and 'Rights as Judicial Resolutions and the Limits of Distributional Considerations.' Generally, I argue for the equal recognition of several notions of justice, which have separately seemed primary (for example, equality and distributive justice; law- or ruleapplication) or secondary (corrective justice), and I show the overlap between many formal and procedural notions and legal dispute resolution: Legal dispute is a social situation constituted by the rule of hearing both sides. In a circle of three activities - doing justice to particulars, resolving the case, and justifying the decision - engaged in by the judge, the activity of doing justice to particular facts is regulated by grounds of relevance. Justification in terms of equal treatment of similar cases includes giving reasons for relevant similarity or difference. The formal justice of like treatment justifies also following a precedent, unless the current case is relevantly different from the prior one. Corrective justice follows as an outcome from the third party's resolution between the parties to the dispute. On the other hand, distributional considerations are not categorically excluded from a legal dispute, because redistribution is not necessarily more efficient through taxation than through other legal rules.