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Sadurski, Wojciech --- "Social Justice and Legal Justice" [2011] ELECD 667; in Micklitz, Hans-W. (ed), "The Many Concepts of Social Justice in European Private Law" (Edward Elgar Publishing, 2011)

Book Title: The Many Concepts of Social Justice in European Private Law

Editor(s): Micklitz, Hans-W.

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802604

Section: Chapter 2

Section Title: Social Justice and Legal Justice

Author(s): Sadurski, Wojciech

Number of pages: 19

Extract:

2. Social justice and legal justice1

Wojciech Sadurski

1 INTRODUCTION
Both in our common, intuitive thinking about justice and in the writings of
legal and political philosophers, a distinction between legal justice and social
justice is frequently made. We often suggest that certain rules, acts and allo-
cations are `legally just', although they fail to meet any acceptable criteria of
social justice. It is `legally just', we say, that a legitimate heir in law inherits
the testator's estate, that a freely made contract be enforced or that the insurer
pay damages in accordance with the policy irrespective of whether or not the
pattern of distribution produced by these acts meets anyone's criteria of social
justice. On the opposite side, we suppose that, for instance, preferring the
members of a disadvantaged minority in job placements may be an act of
social justice in so far as it offsets some of the consequences of past injustices
and yet it would lead to an intolerable `reverse discrimination', thus raising
cries of legal injustice.
In this chapter, I shall attack this dichotomy. The upshot of my discussion
will be that what we usually call `legal justice' is either an application of the
more fundamental notion of `social justice' to legal rules and decisions or is
not a matter of justice at all. In other words, the only correct uses of the notion
of legal justice are derivative from the notion of social justice and, hence, the
alleged conflicts between criteria of social ...