Values and Justice A New Perspective

Author(s): Hemant Shah
Publisher: Z_Philosophical_Writings_001802.pdf

Page 14

160
Philosophical Writings
of Cosmos, which when reasons are nicely balanced, must determine where the choice shall fall. He discusses, conscious and unconscious elements that contribute in his decision - the discharge of Justices. Cardozo, here raises an interesting question : 'Which is the faculty that makes a judicial decision ? Is it reason, instinct, both or neither ? He does not give definite answer. He says that in deciding the case, the decision making process is mysterious. He says that mind and will are inseparably united (111) He further says that the process is a mystery to him
Let us in short understand the terms: Legal, lawful and Just.
Law lexicon says that the term 'legal means according to law, confirming to law, permitted by law, good and effective in law. With regards to the term 'lawful' it has a wider meaning than the term 'legal. Legal is what is in conformity with the letters or rules of law as understood in courts. 'Lawful is in conformity with (or not opposed to the principles or spirit of law. Concise Oxford dictionary says 'legal' means 'of law' or based on law. In fact the word law comes from LEX means statute which again means positive law, or enacted law. Grammatically, LEX is a common noun and LEGES is its plural. The term legal comes from “Leges”, Legal is an adjective drawn from 'Leges'.
"Jus" means law. But it does not necessarily mean positive law or statutory law. 'Jus' is not man made law. Jus is natural law. It is the law of life. It embodies reason. Natural law is law of reason. JUS is reason. JUS is pure law. “Lawful” is that which accords reason. Statute does not always embodies reason. “Legal" is not always lawful". 'Lawful is not necessarily "legal”. The central idea of juridical theory is not LEX, but JUS.
JUST, is an adjective of JUS which means reason. "Just' means that which embodies reason. "Just" means reasonable. 'Justice is abstract noun from 'Just'. 'Justice' means a state of reasonableness. In the order of logical conceptions, justice comes first, and law second. Law is derivative. It is derived from the conception of justice.