By: Terry Ahtziry Cardenas Banda, attorney and former professor.
In this time of uncertainty, changes and challenges in the different legal systems, the concern arises to address the issue of justice, which I remember when I was a student of law, justice was a concept that from the first day of school was presented to us and we were reminded to remember at all times. Justice is a legal value that is closely related to the concept of law.
The word justice comes from latin “iustitia”, in turn this comes from “ius” that means law, reason why in its own meaning means “the fair”. Justice has been defined and analyzed by different jurists and philosophers throughout history, among the prominent Ulpiano, Aristotle and St. Thomas. In roman law, the jurist Ulpiano defined justice as follows: iustitia est constans et perpetua voluntas ius suum cuique tribuendi; “justice is the firm and continuous will to give each one his own.”
The dictionary of the Royal Spanish Academy establishes 11 different meanings for the word justice, the first concept defines justice as: “the moral principle that leads to give to each one what belongs to him”, very similar to Ulpiano’s concept. Aristotle defined justice as a moral quality that forces men to practice righteous things and that is why they are done and what they want to do, and those that are unfair are breaking the law. For Saint Thomas Aquino, law is the regulating principle of human actions in view of a common good, in which the individual good is implicit, emphasizing that the laws are fair when they take from the eternal law, from which they derive, the power to force us into our inner self, likewise, a law is also just when it is ordered in view of the common good, in view of reason.
Every studious of the law asked themselves the same ethical capital question that is made in every legal system: should the law be fair? However, in these times of great advances and changes in law, a new question arises: Is the law fair? To answer it we must analyze not only the concepts but also analyze the execution of the law, as how today the law is applied.
According to the commandments of the uruguayan lawyer Eduardo Juan Couture, the law is an arduous exercise put to the service of the justice, therefore, the duty of the lawyer is to fight for the law and the day that is in conflict the law with justice it must fight for justice, finally, it exhorts us to have faith in justice being this the normal destination of the law. But in the present world of the law can we follow these commandments of the lawyer, do we follow them? It is possible to bring to justice before the law?
In Mexico, justice has a double value standard of law. Although the law is responsible for creating norms to regulate the behavior of man in society and strives for the common good, therefore, it must assess not only justice to establish such norms but other legal values such as order, security and legal equality, in that sense, when all these values are satisfied the is described as fair, however, it has been seen that legality does not necessarily guarantee justice.
On the other hand, in the United States it can be thought that being a system where the judge makes the law is easier for the judge to satisfy justice in front of the law, however, judges are obliged to follow the Constitution, first of all; the decisions of the Supreme Court of Justice; and the laws established by Congress, and as mentioned above, the law does not necessarily satisfy justice.
In our day, the laws are meeting the human needs of the historical moment we live, the legal values of order and security, tending to leave justice behind the chain of values.
The law rejects violence and injustice and considers it unlawful for a man to attempt against another man. Justice is the object, principle and end of the law, the basis and center of every legal document is fairness, or just action. Therefore, is it not important to revalue our current laws and seek justice to prevail? That the common good governs?