My book Legal Foundations of a Free Society concerns justice. As Hans-Hermann Hoppe writes in his Foreword, “The question as to what is justice and what constitutes a just society is as old as philosophy itself. Indeed, it arises in everyday life even long before any systematic philosophizing is to begin.” In ch. 2 (n.3), I quote the classic formulation from Justinian: “Justice is the constant and perpetual wish to render every one his due.… The maxims of law are these: to live honestly, to hurt no one, to give every one his due.”
I came across a nice quote about justice from esteemed Louisiana federal judge Alvin Rubin (2) (1920–91), from the case U.S. v. McDaniels, 379 F.Supp. 1243 (E.D. La. 1974):
However elusive the concept may be, there is a universal human feeling, not confined to philosophers, lawyers, or judges, that there is a quality known as justice, and that it is the aim of legal institutions to achieve it. The Constitution invokes that sense and sentiment in its first purposive phrase: it is ordained “to establish justice”. Madison, writing in Federalist No. 51, called it “the end of civil society”. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” This feeling that justice is a supreme goal, this sense that it is a predicate to organized society, is no mere yearning, for it is only in a fair proceeding, one that comports with our sense of justice, that we can with any legitimacy call another human being to account.
Justice must not only be done; it must be seen to be done. The interest of justice requires more than a proceeding that reaches an objectively accurate result; trial by ordeal might by sheer chance accomplish that. It requires a proceeding that, by its obvious fairness, helps to justify itself.
This quote from a federal district judge is somewhat ironic since, as I noted in Federal Judges Aren’t Real Judges, federal judges usually do not function as real judges, since their remit is not to do justice but to apply federal statutes of the Constitution, regardless of whether these statutes are just or not. Federal judges act as real judges only when they seek to apply state common law principles, in diversity cases, under the Erie Railroad doctrine.1
(The interplay between federal and state courts in the US federalist system, given the lack of federal common law and the holding of Erie, is quite fascinating. See, e.g., the recent Federalist Society event Certification of State-Law Questions by Federal Courts (video below); and other interesting and related articles such as Alvin B. Rubin, “Hazards of a Civilian Venturer in a Federal Court: Travel and Travail on the Erie Railroad,” La. L. Rev. 48, 6 (July 1988): 1369–81 and William E. Crawford, “Life on a Federal Island in the Civilian Sea,” Miss. College L. Rev. 15, 1 (1994–95): 1–12.)
- See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). [↩]
