What Are Law, Justice and Legislation?

Three questions, one inquiry

Every legal professional uses three words every day without defining them: law, justice and legislation. In Portuguese the distinction is sharper than in English: Direito is law as a whole, the legal order and the discipline; lei is a statute, a specific piece of legislation. They are not synonyms. Law is the broadest phenomenon; justice is the value that guides it — or should guide it; legislation is the most visible form in which law appears in modern societies.

This study follows that logic. First we ask what law is, because the other two notions depend on it. Then what justice is, because it allows us to criticize existing law. Finally, what legislation is, because that is where citizens look for certainty and lawyers anchor their arguments.

This is the first of three studies in the series. The second will address legal proceedings, contracts and powers of attorney — the instruments through which law is carried out in practice. The third, democracy, the State and government — the structures that give law its authority.

Part I — What is law?

Few questions have divided jurists as much. Each great school offers an answer, and each answer illuminates a real aspect of the legal phenomenon.

Natural law: law exists before legislation. For the natural law tradition, there is an order of justice above positive rules, accessible through reason. Cicero already stated in On the Republic (III, 22) that true law is right reason in agreement with nature. Thomas Aquinas systematized the idea in the Middle Ages, and John Locke, in the Second Treatise of Government (1689), gave it a liberal form: life, liberty and property precede the State, which exists to protect them. In this view, legislation recognizes rights — it does not create them.

Legal positivism: law is what has been validly enacted. Hans Kelsen described law as a hierarchical system of norms, in which each norm derives its validity from a higher one. Norberto Bobbio, in Theory of the Legal Order (1960), stressed that law must be studied as an order — a whole that aspires to unity, coherence and completeness. H. L. A. Hart added the rule of recognition, the social practice that identifies what counts as law. Positivists do not deny morality; they separate the question of what the law is from the question of what it ought to be.

The Historical School: law arises from the people. Friedrich Carl von Savigny, founder of the Historical School, opposed in 1814 the hasty codification of German law. For him, law forms slowly, like language, from the customs and consciousness of a people; the legislator declares it but does not invent it.

Legal realism: law is what courts do. Oliver Wendell Holmes Jr., forerunner of American legal realism, defined law in The Path of the Law (1897) as the prediction of what courts will in fact do. Karl Llewellyn carried the idea further, distinguishing written rules from the rules judges actually follow — law "in action".

Sociology of law: law reflects society. Émile Durkheim, in The Division of Labor in Society (1893), saw law as a social fact and a visible sign of solidarity: in simple societies, with mechanical solidarity, repressive law predominates; in complex societies, with organic solidarity, restitutive law grows — contracts, civil liability, compensation.

Post-positivism: law is not exhausted by rules. Ronald Dworkin argued that principles are part of the law and that interpreting it means seeking the reading that gives the system the greatest possible integrity.

The Brazilian synthesis: Miguel Reale. In Three-Dimensional Theory of Law (1968), Reale proposed that law is the dynamic integration of fact (social reality), value (what is desirable and just) and norm (the legal rule). No dimension suffices on its own: fact without norm is anomie; norm without value is arbitrariness; value without fact is utopia. Reale did not stop at theory: he chaired the commission that drafted Brazil's 2002 Civil Code, guided by the principles of ethics, sociality and operability — good faith and the social function of contract and property are practical expressions of his three-dimensional theory.

Key takeaway: law is norm (positivism), but also value (natural law), social fact (sociology), the practice of courts (realism), historical heritage (Historical School) and interpretation (Dworkin). Reale shows that these answers need not exclude one another.

Part II — What is justice?

If law can be unjust, we need a criterion to say so. Western philosophy has offered answers ranging from the harmony of the soul to the impartiality of institutions — and a skeptical warning in the twentieth century.

Plato: justice as harmony. In the Republic (Book IV, 433a–b), justice consists in each doing what is properly one's own, without meddling in what belongs to others. In the ideal city, each class — producers, guardians, rulers — performs its function; in the soul, reason rules, spirit supports it and the appetites obey. Justice is the health of soul and city, grounded in an eternal Form of the Just.

Aristotle: justice as virtue and proportion. In Book V of the Nicomachean Ethics, justice is the disposition of character that leads us to perform just acts. Aristotle distinguishes universal justice — complete virtue in relation to others — from particular justice, which has two forms:

• distributive, which allocates goods and burdens according to merit, in a geometric proportion;
• corrective, which restores equality in transactions and harms, in an arithmetic proportion, treating the parties as equals.

He adds equity, which corrects the law when its generality produces injustice in a concrete case. The distinction has crossed the centuries: distributive justice lives in tax and social policy; corrective justice, in civil liability and the judicial revision of contracts.

Ulpian and Aquinas: to give each their due. The Roman jurist Ulpian defined justice as the constant and perpetual will to render to each their right (Digest, 1.1.10). Thomas Aquinas adopted the formula (Summa Theologiae, II-II, q. 58, a. 1) and emphasized otherness: justice is the only virtue essentially directed toward another.

John Rawls: justice as fairness. A Theory of Justice (1971) opens by stating that justice is the first virtue of social institutions, as truth is of systems of thought (§ 1). Rawls proposes a thought experiment: rational persons choosing principles behind a veil of ignorance, without knowing what position they will occupy in society. From this original position two principles would emerge: equal basic liberties for all, with absolute priority; and economic inequalities permitted only if they benefit the least advantaged and are attached to positions open to all under fair equality of opportunity.

Hans Kelsen: the skeptical warning. In his essay What Is Justice? (1957), Kelsen concludes that absolute justice cannot be determined rationally: history's answers are empty formulas or subjective value judgments. Justice is a possible, but not necessary, quality of a social order. That is why his Pure Theory of Law separates knowledge of the law from the assessment of its justice. Kelsen nonetheless declared his own preference: the justice of freedom, peace, democracy and tolerance.

Key takeaway: Plato sees justice in order; Aristotle, in proportion; Ulpian and Aquinas, in giving each their due; Rawls, in the impartiality of institutions; Kelsen, as a relative value that legal science cannot demonstrate.

Part III — What is legislation?

With law and justice defined, we come to legislation — the form through which modern law becomes visible, public and enforceable. There are four great ways of thinking about it.

As reason. For Thomas Aquinas (Summa Theologiae, I-II, q. 90, a. 4), law is an ordinance of reason for the common good, promulgated by whoever has care of the community. A human law that contradicts natural law is no longer properly law, but a corruption of law (I-II, q. 95, a. 2) — although it may be obeyed to avoid a greater evil.

As will. For Thomas Hobbes (Leviathan, 1651, ch. XXVI), law is the command of the sovereign: without a power able to enforce it, a rule is mere counsel. For Jean-Jacques Rousseau (The Social Contract, 1762, II, 6), it is the expression of the general will — not the sum of individual wills, but what the people wills as a political body. Obeying the law is then obeying oneself as a citizen. The idea passed into Article 6 of the 1789 Declaration of the Rights of Man and of the Citizen.

As norm. For Kelsen, a statute is a valid norm because it was produced in accordance with a higher norm, up to the Constitution and, at the top, the presupposed basic norm. A statute is a frame within which the judge chooses one of the possible interpretations. Hart rejected the idea of law as a mere command backed by threats — the formula cannot distinguish law from a robber's order — and explained validity through the rule of recognition accepted by participants in the system.

As interpretation. For Dworkin, a statute is not read in isolation: it is part of a practice of rules and principles that the judge must interpret like someone continuing a chain novel, giving the whole coherence and the best possible moral sense.

Legislation in Brazilian law. The Brazilian legal order combines all four views. A statute must be produced through the constitutional legislative process (Art. 59) — norm; approved by representatives of the people, from whom all power emanates (Art. 1, sole paragraph) — will; compatible with human dignity and the unamendable "entrenchment clauses" (Art. 60, § 4) — reason; and applied in a stable, coherent manner with integrity (Code of Civil Procedure, Art. 926) — interpretation.

The principle of legality (Art. 5, II) guarantees that no one shall be obliged to do or refrain from doing anything except by virtue of law. The Law of Introduction to the Rules of Brazilian Law (LINDB) completes the picture: no one may excuse themselves by claiming ignorance of the law (Art. 3); in the absence of a rule, the judge decides by analogy, custom and general principles of law (Art. 4); and, in applying the law, the judge attends to its social purposes and the requirements of the common good (Art. 5) — a formula Thomas Aquinas would recognize as his own.

Synthesis: how the three answers fit together

A critical reading

Each tradition gets one thing right and another wrong. Natural law gives law a moral compass, but depends on a consensus about the good that plural societies do not always reach. Social contract theory explains the authority of law but, on its own, does not protect against tyranny — of one person or of the majority. Positivism offers certainty and method, but falls silent before an unjust law that was validly enacted. Post-positivism restores law's moral dimension, but demands from judges a virtue that institutions do not always guarantee.

Brazil's 1988 Constitution did not choose among them: it requires that legislation be validly enacted, democratically approved, consistent with fundamental rights and interpreted with integrity. For lawyers, knowing these traditions means being able to argue on every level — validity, legitimacy, justice and coherence. A good argument usually draws on all four.

Next study

If law, justice and legislation are the ideas, legal proceedings, contracts and powers of attorney are the instruments through which they are carried out. The second study in the series asks what each of them is — and why understanding their nature changes how we use them.

References

• CICERO. On the Republic, III, 22; On the Laws.
• AQUINAS, Thomas. Summa Theologiae, I-II, qq. 90–97; II-II, qq. 57–58.
• ULPIAN. Digest, 1.1.10.
• PLATO. Republic, Book IV.
• ARISTOTLE. Nicomachean Ethics, Book V.
• HOBBES, Thomas. Leviathan (1651), ch. XXVI.
• LOCKE, John. Second Treatise of Government (1689).
• ROUSSEAU, Jean-Jacques. The Social Contract (1762), Book II.
• SAVIGNY, Friedrich Carl von. Of the Vocation of Our Age for Legislation and Jurisprudence (1814).
• DURKHEIM, Émile. The Division of Labor in Society (1893).
• HOLMES JR., Oliver Wendell. The Path of the Law (1897).
• LLEWELLYN, Karl. The Bramble Bush (1930).
• KELSEN, Hans. Pure Theory of Law, 2nd ed. (1960); What Is Justice? (1957).
• BOBBIO, Norberto. Theory of the Legal Order (1960).
• HART, H. L. A. The Concept of Law (1961).
• REALE, Miguel. Teoria Tridimensional do Direito (1968); Filosofia do Direito.
• RAWLS, John. A Theory of Justice (1971), § 1.
• DWORKIN, Ronald. Taking Rights Seriously (1977); Law's Empire (1986).
• Brazilian Federal Constitution; Code of Civil Procedure, Art. 926; LINDB, Arts. 3 to 5.
• Starting material: carousels by Círculo Jurídico, Cultura Jurídica and PUC-SP Digital.

Advanced Studies Collection — Biblioteca Andrade & Cintra. Informational and academic content. It does not constitute legal advice and does not create an attorney-client relationship.