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The kiss of justice and peace . Unknown artist, Antwerp around 1580
The allegorical representation of justice as Justitia, which is common in western cultures . It usually has three attributes: the scales (balancing, arbitrating, private law), sword (convicting, criminal law), and a bandage in front of the eyes (regardless of the person).

The concept of justice (Greek: διϰαιοσύνη dikaiosýne , Latin: iustitia , English and French: justice) has denoted a human virtue at its core since ancient philosophy , see theories of justice . According to this classic view, justice is a measure of individual human behavior.

The basic condition for human behavior to be considered just is that what is like is treated equally and what is different is treated differently. In this basic definition, it remains open according to which value standards two individual cases are to be regarded as equal or unequal to one another.

Recognizing that no human being can claim to always act fairly from all points of view, the view prevailed in the Middle Ages that justice is not a human, but a divine quantity . According to this view, justice could only exist in heaven and not on earth. During the Renaissance, the divinity of justice was replaced by the idea of ​​a natural law . In principle, justice is already inherent in nature and man must strive to recognize this justice.

Against this, the philosopher Immanuel Kant formulated his ethics of reason from the position of the Enlightenment. A divine or natural justice are not sensible categories, because both are fundamentally not or at least not completely recognizable for humans. According to the categorical imperative, a person acts justly who gives himself an account of the maxims of his actions under tension of his mental powers and acts accordingly, provided that these maxims of his action can also be elevated to general law.

The modern concept of justice also means that it is not only applied to individual actions of people, but also to the sum and the interaction of a large number of human actions in a social order . In the abstract, a social order is just if it is designed in such a way that individual individuals are free to behave fairly.

The concept of justice experiences a further expansion from a social point of view towards social justice . This term no longer describes human virtue, but a state of a society, whereby the point is not that the individuals in this society are free to behave justly - in the sense of virtue - but rather that every member of society should Participation in society is made possible by granting rights and possibly also material means.

Justice is seen worldwide as the basic norm of human coexistence; therefore legislation and jurisprudence refer to them in almost all states . In ethics , in legal and social philosophy as well as in moral theology, it is a central topic in the search for moral and legal standards and for the evaluation of social conditions.

According to Plato , justice is an inner attitude. For him it is the outstanding virtue ( cardinal virtue ), according to which everyone does what his task is, and the three parts of the human soul (the desire, the courageous and the reasonable) are in the right relationship to one another. Aristotle and Thomas Aquinas , on the other hand, emphasized that justice is not just a ( character ) virtue, but must always be thought in relation to others ( intersubjectivity ). Actions like charity , mercy , gratitude or charity go beyond the realm of justice ( supererogation ).

In the more recent theories of justice , egalitarianism , libertarianism and communitarianism face each other as basic positions.

Globalization , global economic problems, climate change and demographic developments have contributed to the fact that, in addition to questions of domestic social justice , intergenerational justice and a just world order also come to the fore.

About the term 'justice'

Problems of the basic definition

The basic definition of fair action, treating like equals and unequal unequally, is merely of a formal nature. Whether two situations are assessed as equal or unequal to one another depends on the underlying value standards. The concept of justice therefore always needs to be filled in.

Example 1: women's suffrage. In the early days of democracy, women were not given the right to vote. This was not felt to be unfair because women are not men. What is unequal is treated unequally, which basically appears to be just. By today's standards, there is no difference between women and men with regard to the right to vote. Just like men, women are subject to democratic decisions, they support society just like men and, like men, they are gifted with reason and capable of democratic decisions. It is therefore unjust if, although they are in fact equal to men in terms of their ability to participate in democracy, they are not also granted the right to participate.

Example 2: equal wages. The Bible knows the parable of the workers in the vineyard as a classic tale of justice. The master of the vineyard gives every worker what the master sees as just wages, namely what he needs to live. He does not differentiate between the fact that some workers worked twelve hours, while others only worked one. The latter receive an hourly wage that is twelve times higher. Depending on whether the Lord's free decision, the needs of the workers or their performance are used as a yardstick, the remuneration appears to be just or unjust.

Different values ​​go into the general concept of justice. According to John Rawls, this harbors the risk that in a political dispute about justice, those values ​​that are particularly beneficial to one's own (class) interests are brought to the fore. He therefore calls for the veil of ignorance for an open discussion about justice and the underlying values . Only those who argue independently of their interests have a chance to think about a reasonable balance between the various values ​​that should flow into a modern concept of justice. In particular, the relationship between performance fairness, according to which someone who achieves more than others should also live better, to an egalitarian justice according to which all people with similar needs should also have similar material opportunities, should, according to Rawls, be unaware of their own performance or disregarding the same.

Etymology and word field

Allegory of Justice. Virgil Solis 1540/45

"If one doesn’t have justice for hann, I’ll be righteous people and country"

In Old High German , the adjective "gireht" can be found for the first time in the 8th century. It meant “straight”, “right”, “suitable” (stronger form of “reht”), in Middle High German “reht” the more abstract meaning “according to the sense of right” is added, as was the case before in Gothic “garaihts”. Later, “just” also stands for “straightforward”, “appropriate” and “in accordance”.

Justice is a normative term associated with an ought . Associated with it is the call to transform unjust conditions into just. Those who want to be fair have a duty to themselves, but also in expectation of others to act accordingly. If one recognizes justice as a requirement of morality , one bears part of the responsibility for ensuring that just conditions are established.

Injustice is a violation of justice. Injustice also includes failing to act properly. Arbitrariness is one of the main causes of injustice because it breaks the principle of impartiality.

Relation to different fields of action

The concept of justice is used in different contexts, for example related to

  • human actions and their results (fair wages, fair staffing),
  • Judgments on actions (in court, in sport, in education),
  • social rules (norms of action, laws, procedures),
  • Attitudes (justice as a human virtue ) as well
  • existing relationships between people or in society (fair conditions).

Occasionally institutions or even emotions (righteous anger ) are labeled as righteous.

The concept of justice in earlier societies

Justice as a principle of a balancing order in a society can be found in all cultures and can be traced very far back historically. Originally, justice was understood as adhering to social norms and laws . The social order was viewed as a natural principle ( natural law ) or as the setting of transcendent powers , such as a deity , who was viewed as justice personified or to whom this quality was at least ascribed as essential. To be righteous therefore meant fulfilling the commandments of God or the gods.

Sculpture of the Ma'at in the Louvre

In early cultures, terms were used that are now only imprecisely and too narrowly translated as “just”. They were shaped by religion and also contained meanings such as righteous or wise, as in the Egyptian Ma'at doctrine or the old Israeli term of Sädäq (loyalty to community). The “Yi” (义, righteousness ), one of the four pillars of Lunyu in Confucianism , which demands an attitude that one can justify in front of oneself, is similarly broad . In these traditional teachings, justice was understood primarily as personal justice, as a quality and virtue of a person within the system of rule , which should contribute to maintaining the given order.

The first systematic considerations of justice can be found in the philosophy of antiquity in Plato and Aristotle . Above all, Aristotle made the distinction between personal and social justice as a civic virtue. This conception of personal justice was prevalent until the Middle Ages . Only at the beginning of the modern era did elaborate concepts emerge to define justice as a contractual relationship between people in order to resolve conflicts, as in the ideas of the social contract in the mid-17th century with Thomas Hobbes or about a century later in the Age of Enlightenment with Jean-Jacques Rousseau . Law was no longer understood only as an expression of a divine order. Justice was given the meaning of an institution to balance different interests. Correspondingly, the definition of personal justice has been supplanted by the view of an institutional justice, the iustitia legalis .

The concept of justice was expanded and shifted in terms of content with the industrial revolution and the resulting impoverishment (“ pauperization ”) of large sections of the population , which raised the social question . Hegel , who noted the “generation of the mob ” through economic conditions, reflected the problem philosophically and called for the public to abolish “necessity” . In the emerging workers' movement , this took concrete form in the demand for social justice , which has become the subject of political disputes up to the present day .

Critique of the concept of justice

Historically, there has been a great change in value-related postulates . In the legal philosophical discourse, the term justice is often used in the singular. The objection to this, however, is that after the experience of numerous system and constitutional changes this is an illusion. According to this, the content of the term justice in the past and present is determined by religious or ideological preconceptions and changes to a large extent with the change in cultures and politically established values. Those who claim their justice as “the” justice misunderstand the subjectivity and relativity of value-related postulates. In a free state and social order, justice only exists in the plural, namely as a reflection of the different ideals of justice in society and as a competition for solutions to problems of design and regulation that are capable of being met by a majority.

At the risk that if the ubiquity of Category justice in all religions, philosophies and ideologies finally only one word facade remains, has Ernst Topitsch pointed out. He postulated “the fact that certain linguistic formulas have been recognized through the centuries as relevant insights or even as fundamental principles of being, cognition and evaluation, and are still so today - ... precisely because and in so far as they have no, or no more specific, factual or Have normative content. ” Hans Kelsen came to a similar assessment from the point of view of legal positivism : The determination of absolute values ​​in general and the definition of justice in particular that are achieved in this way turn out to be completely empty formulas through which each any social order can be justified as justified. Likewise, for Max Weber the postulate of justice was “unsustainable on 'ethical' premises”. For the systems theorist and constructivist Niklas Luhmann , the question of justice remains limited to the legal system. For him, "the idea of ​​justice can be understood as the contingency formula of the legal system", because "the prerequisites for a concept of justice based on natural law no longer apply."

Human coexistence

Conditions of justice

Justice as a naked woman with sword and scales. Lucas Cranach the Elder Ä. 1537

In order for justice to be effective as an appropriate compensation for the diverse differences existing in every historical society, it is a necessary prerequisite that the existing interests and moral evaluations can be communicated openly and without restriction. They are discussed in an open discussion and then converted into valid but changeable legal norms or agreements in a political process, which can be designed in different ways.

If the social norms are given heteronomously (externally, externally determined), for example by a (dictatorial) ruler or a ruling elite (for example aristocracy ), people are dependent on the interests and power of a few or individuals and cannot lead an equal discourse .

Second, as a formal basic principle, equality (equal rights) for people must be ensured.

The so-called minority protection is also based on the principle of equality . It is intended to ensure that a majority does not permanently dominate individuals or minorities with regard to sexual orientation, gender, religion, race or other conditions by majority decision.

Forms of justice

Different concepts of justice play a role in different areas of human coexistence. They depend on the addressees as well as on the respective social conditions:

  • Equal rights for all people as a waiver of discrimination against social groups based on gender, sexual orientation, race, religion or other beliefs ( principle of equality )
  • Political justice in terms of freedoms, offices and opportunities at both national and international level
  • Legal justice in the form of appropriate and balanced laws, adequate jurisprudence and an appropriate penal system ( legality , legitimacy , principle of proportionality )
  • Transitional Justice ( Transitional Justice ) as adequate compensation for violence and crimes in a past conflict (violations of international law )
  • Exchange justice in terms of economic relationships as well as in the evaluation of performance and consideration, for example in the assessment of damages and penalties (also: compensatory justice )
  • Social justice as the appropriate distribution of material goods, jobs and resources including equal opportunities or equal opportunities through access to the objects of the satisfaction of basic needs such as food, housing, medical care or educational opportunities
  • Protective justice through peace ssicherung, criminal and institutional sanctioning of structural violence in the public and private space, the protection of minorities as tolerance to deviations from social and cultural practices and norms (for example, for the disabled and homosexuals), and protection against encroachments of others through criminal law
  • Intergenerational justice in the relationship between the living today and future generations, above all by limiting national debt , sufficient investment in education and environmental protection , but also within the family in the relationship between parents and their underage children as well as between children and their parents who have grown old
  • Environmental justice, on the one hand, as an even distribution of environmental pollution across different regions and, on the other hand, as the participation of all those affected in political decisions that pollute their environment ( environmental justice )
  • Gender equality as a duty to create equal opportunities between women and men in professional and private life as well as in politics and the public in the sense of ( gender mainstreaming )
  • Contributive justice as a right to participation, but also as an obligation to participate
  • Procedural justice as compliance with recognized rules without regard to the person in order to maintain legal discipline, for example in the context of social justice or criminal law (also: regular justice as opposed tofairness of results )
  • Under formal justice is meant a general control principle, which determines a procedure according to which all equal mounted cases are to be treated equally.
  • Restorative justice is an alternative approach to justice and a form of conflict transformation . It represents an alternative to current judicial criminal proceedings and at the same time describes social initiatives outside the state system. Restorative justice brings those directly involved (injured party, accused) and sometimes the community together in a search for solutions. The aim is to make amends for material and immaterial damage and to restore positive social relationships.

Standards of systemic justice

If the concept of justice is not applied to an individual behavior, but to a social order, then there are two conceptual possibilities: Either the social order is understood as the sum of human actions, with actions of people from the past also contributing (e.g. through laws and institutions that were created in the past) or the social order as a whole is judged from the point of view of a concept of justice to be defined and applied to it. The latter is then a systemic concept of justice which fundamentally differs from the classical concept of virtue in its approach and must not be equated with it.

In the case of systemic justice, however, the core definition of justice remains, namely that the like must be treated equally and the unequal must be treated unequally. Here, too, the question arises as to which value standards in a social order are to be assessed as equal or unequal. In addition, the appeal for action contained in the concept of justice now needs an addressee. If a situation is systemically judged to be unjust, it is not yet clear who should then behave and how. For example, an acute emergency situation due to a natural disaster cannot initially be assessed as just or unjust because a natural disaster is not human behavior. But if this need can be overcome or alleviated through actions of people, then a concept of justice that includes empathy and mercy, as demanded by Thomas Aquinas , can explain the commandment to provide help as just. Systemically, however, the next question arises as to who should behave fairly: Is this the state, perhaps a division or an institution of the same, is it the international community of states, is it the closest who is closest to the sufferer in terms of geography or personal relationships Is it a national community to be defined in any way, is it everyone who knows about the suffering in the same way, or is help in a fair way best to be organized by a community of insured persons?

In the case of systemic justice, however, the question of the addressee is particularly important as to which values ​​fill the concept of justice. Obviously egotistical goals differ. B. express in corruption and arbitrariness, even from the basic definition of justice, but beyond that, no general goals can be derived from the basic definition. Quais any well-meaning objective for a social order can also be defined as just. If a goal recognized as good justifies unequal treatment, then the preference fits under the aspect that unequal must be treated unequally.

Against this background, different goals postulated as just can be summarized in different concepts of justice, which in turn can be defined in different ways. These are e.g. B .:

In the process, these different concepts of justice come into conflict, which reveals that different values ​​in a society lead to conflicts, in particular also to conflicts of interest.

For example, subsidizing goods that are only acquired by wealthy people can be seen as unjust from the point of view of egalitarianism, among others, e.g. B. but appear fair from an ecological point of view. This applies e.g. B. for photovoltaic systems that only homeowners buy or expensive electric cars that are also not bought by low-income earners. The 63-year-old pension, known as the life-performance pension, which has been introduced in Germany and benefits almost exclusively people who can already expect a pension that is far above average, can also be seen as performance-related, even if it runs diametrically against egalitarian considerations and intergenerational equity considerations.

Criteria of justice

Depiction of justice at the grave of Pope Clement II in Bamberg Cathedral

The social function of debates and conceptions of justice consists in enabling value judgments about distributions or allocations within human relationships. The yardstick for this can be what someone needs in his own opinion or that of others , what he is entitled to, or what he deserves .

There are many criteria by which the degree of justice can be judged. Such criteria are determined according to different distribution principles, which are often chosen depending on the specific decision-making situation:

  • Needs principle, that is, meeting the needs of different / different sizes
  • Contract principle, which means doing justice to what has been agreed
  • Achievement principle, that is, those who do a lot for the community are entitled to more
  • Principle of equality, that means everyone gets the same - egalitarianism
  • Random principle, which means everyone is given the same chance (choice by lot)
  • Principle of equality, i.e. equalization / equalization of rights and opportunities - for example between men and women
  • Maximin principle , i.e. the poorly rated receives at least what the poorest rated would have received in another distribution (referred to by John Rawls as the principle of difference)
  • Sustainability principle as a principle of environmental ethics , that means not to use more than natural resources grow back
  • Communist principle, that is, everyone according to their abilities, everyone according to their needs
  • Authoritarian power principle, that is, everyone is forcibly assigned his own.

Compared to the principle of distribution, which is geared towards the recipient, the principle of subsidiarity relates to the giver of goods and services. It says that first everyone should help themselves as much as possible. This includes the duty of the individual to make his contribution to the community according to the possibilities given to him. Only when (basic) needs are not met in this way is the community obliged to create a balance. German social assistance, for example, is based on the idea of ​​subsidiarity . In addition, the principle of subsidiarity states that the higher level of the community is not responsible where the lower level can solve tasks independently. In this sense, the principle is fundamental for the relationship between the federal government, the federal states and municipalities in Germany, but also for the institutions of the European Union vis-à-vis the member states.

The multitude of ideas about justice shows the breadth of the topic and at the same time its problems. None of the individual principles is suitable for resolving all conflicting interests to the satisfaction of everyone. Representatives of individual approaches tend to highlight the disadvantages of alternative designs. Depending on the justification of the different postulates that are related to the living environment of their originators, different value judgments arise. The question of weighting is significant for many practical areas of life when it comes to correcting conditions that are considered unjust. This applies to educational opportunities as well as co-determination in companies, fair taxation, fair wages or the assessment of fair penalties. The standard “To each his own” ( Suum cuique ) formulated in ancient times gives a point of reference, but does not solve the distribution problem (quantification) or conflicts of interest. Ludwig Erhard refers to the danger of improper use of the term : "I have got used to saying the word justice almost always only in quotation marks because I have learned that no word is misused more than this highest value."

Justice as a political task

Justice has always been a central theme in political philosophy . B. Sitter refers to the ancient pre-Socratic Anaximander , who understood justice in a comprehensive sense, as a cosmic principle of order and as the ideal of human behavior towards all beings. Even today, the question of justice essentially determines political thinking and the issues of practical politics. Here, in the western industrialized countries in addition to the classic arguments about national social justice, the struggle to find the solution of the social question and the creation and development of a social security system were marked with its various branches and are issues of equality of the sexes, the cultural and individual self-determination as well as justice towards animals and nature.

Above all, however, the ever closer integration through globalization has heightened awareness of the problem with regard to international distributive justice, the realization of justice through human rights and through a just political order worldwide. Whereas war prevention, peace agreements and national trade interests have traditionally been the focus of international diplomacy and mutual understanding, the agenda of the United Nations and that of the international summit meetings and forums ( World Economic Forum , World Social Forum ) are now increasingly concerned with problems of poverty , climate protection , the migration and the global shift of capital flows , business investment and industry-related jobs is concerned.

The question of whether there can be “ just wars ” has been and is being discussed again and again within the framework of an international security policy and beyond.

Jürgen Habermas u. a. raise the question of a world domestic policy in this context . Otfried Höffe even envisions a "world republic" based on Kant. Competing positions emphasize the primacy of economic, social and cultural justice. There is broad consensus on this that a fairer world order can only be achieved through global cooperation.


Empirical justice research

Sebastian Loscher: Earthly and divine justice (1536)

An in-depth presentation of individual research topics can be found in the main article Research on Justice .

The different attitudes towards the object ( psychology ) and the extent to which these are reflected in the given social conditions ( social sciences ) also play a role in the investigation of justice . The following questions are dealt with:

(1) What do individuals and societies believe that is fair, and why do they believe it?
(2) How do notions of justice influence current rewards and the existing distribution of goods in a society?
(3) What is the extent of perceived injustice in the event of a deviation from a just state of affairs?
(4) What are the behavioral and social consequences of a perceived injustice?

From a psychological point of view, what is of particular interest is the factors that influence a person's attitude towards their idea of ​​justice and the effects of circumstances judged to be unjust. What influence does moral education have? How do which procedural principles and distribution norms affect the sense of justice? In most cases, surveys are carried out using the methods of empirical social research .

Pioneer of Justice research in social psychology , the theory of were in the 1950s cognitive dissonance by Leon Festinger and his social comparison theory. George C. Homans first introduced a concept of distributive justice in his exchange theory of social behavior. Major theories from these research areas are J. Stacy Adams' equity theory. and Melvin Lerner's theory of justice, which is represented in Germany by Leo Montada. Social psychological research deals with the emergence, experience and judgment of injustices and the reactions to them; because actual or supposed injustice (s) are strongly perceived and sometimes lead to violent reactions.

In the social sciences, especially in sociology , the question of how social institutions , such as the tax system, opportunities for employment and education, access to health care, company remuneration systems or criminal law, affect notions of justice. At the same time, the social context of the respective values ​​is examined.

The French sociologist Pierre Bourdieu , in particular with his works The Subtle Differences and The Misery of the World, has presented empirical studies to research social facts that point to injustice.

Justice as a subject of developmental psychology

According to Jean Piaget , humans go through a cognitive learning development , which he subdivided into principal stages of development . This also included the expansion of moral judgment. After an original, amoral stage, Piaget distinguished three stages:

  • Moral realism (pure reaction to expected punishments; up to approx. 3 years)
  • Heteronomous morality (knowing and following prescribed rules; up to approx. 10-12 years)
  • Autonomous morality (own judgments and rules; from puberty)

The Piaget model was subsequently developed and differentiated by Lawrence Kohlberg at the University of Chicago . Kohlberg equated moral development with that of a sense of justice. This creates a balance between demands and needs. The assumption of stages of development is an ideal type of construction. Each level builds on the previous one and is at the same time an extension of the cognitive framework.

Development stages of moral judgments
according to Lawrence Kohlberg
Levels and Levels Motivation and reference
A. Preconventional level
1. Authority Punishment, reward
2. Own needs End-means-thinking
B. Conventional level
3. Recognition Conformism, favor
4. Duty Social order
C. Post-conventional level
5. Social rules Democratic principles
6. Universal ethics basic ethical principles

At the beginning of their development, children are at a pre-conventional level. The selfish perspective is paramount. In a first stage of development they follow the rules of an authority, the parents, a teacher. The benchmarks are punishments and rewards. The second stage shows the pursuit of one's own needs in interaction with others. It is still individualistic. Thinking in the categories of costs and benefits is predominant according to the principle: if you help me, I'll help you too. The conventional level sets in from around ten years of age . People begin to orientate themselves to higher-level rules. In the third stage, he strives for recognition, behaves in accordance with his social environment (family, school, leisure time) and above all wants to please others. The fourth is the orientation towards the social order. You fulfill your duties towards institutions (state, religion, in a club) and try to contribute to the good of society. The third, post-conventional level represents a transition to value orientation. It can be reached from around the age of 20. However, not all adults manage to approach this or even higher forms of thought. In the fifth stage, society is understood as a social contract. Individual rights, especially fundamental rights, and general legal principles determine how we think about questions of justice. The sixth and highest level brings the orientation towards universal ethical principles ( categorical imperative ), which also contain criticism of social structures (principle of responsibility).

Kohlberg examined his development scheme in interview series with the help of hypothetical dilemmas . The subjects were described situations in which moral values ​​conflict with one another and had to be judged as having priority or subordinate. His sixth stage of moral development could not be empirically confirmed. Kohlberg's research has led to a large number of further empirical studies and has found its way into pedagogy . In Germany, a research center has been set up at the University of Konstanz on this subject , in which Georg Lind , a pupil of Kohlberg, developed the Konstanz method of dilemma discussion .

Carol Gilligan , a former Kohlberg colleague, found during the joint research that women regularly achieved lower levels than men on average within this scheme. In her own survey concept, she expanded the range of the examined values ​​and came to the conclusion that the concept of justice and the autonomy assumed are typically dominant, i.e. androcentric , in the male sex . For women, however, according to Gilligan, caring as an ethical value is far more important. From this, Gilligan developed the welfare morality , which she regards as an ethical category independent of justice, but also of mercy. For them, justice is therefore not the highest, but one of several equal virtues.

Human evolution and primate research

Hooded capuchin ( Cebus apella )

Hanah Chapman at the Affect and Cognition Lab at the University of Toronto , inspired by Charles Darwin and his thesis that every emotion has a certain facial expression (see The expression of emotional movements in humans and animals ), examined the reactions to disgust . The 27 test persons reacted to bitter drinks and pictures of feces or insects by closing their eyes, wrinkling their noses and pulling up their upper lip with the "disgust muscle" ( levator labii superioris muscle ). She was also able to notice the same reaction if the test subjects felt that they were being treated unfairly in an experiment. Chapman attributes the analogous defense reaction to a process of evolution . “We believe this old system of disgust could then be used in new ways for the social world. As people developed more complex societies, they had to marginalize behaviors that violated the norms. Evolution has not come up with anything new for this, it has simply expanded the scope of the feeling of disgust. "

In the field of primate research , Frans de Waal and Sarah Brosnan carried out experiments with capuchin monkeys (Cebus apella) at Emory University in Atlanta , with grapes or cucumber as different rewards for the same performance. The disadvantaged monkeys then refused the cucumber as a poor reward. De Waal and Brosnan conclude from this behavior that primates have an original sense of justice that they developed in the course of evolution for the purpose of cooperation . Susan Perry from the Max Planck Institute for Evolutionary Anthropology in Leipzig came to similar results .

Justice in Religions

Justice is an outstanding, positively proven value in many religions. The term has a variety of meanings, even within a religion.

In the Judeo-Christian tradition, justice is a central concept of communication and community. It describes the relationship between God and people as well as between people. In the Bible ( standard translation 2016) the terms righteousness , just and righteous appear 308, 97 and 33 times, respectively, starting with Noah , who is called a just , blameless man ( Gen 6.9  EU ).

For Judaism, justice ( sädäq ) means both God's loyalty to the covenant and the obedience of man, which he expresses through his inner attitude as well as through his external actions. Moses is presented in the Torah as a mediator of the laws of God: "Look, I teach you laws and regulations as the Lord my God has commanded me." ( Deut 4,5  LU ) A believing Jew is called upon to act to align justice. “Pursue justice, pursue justice.” ( Deut 16.20  EU ) Not only the fulfillment of the commandments in the Tanach is required, but a fundamental ethical attitude: “You have been told, man, what is good and what God is with you are looking for: doing nothing but justice, loving kindness and being attentive to your God. ”( Micah 6,8  EU ) The Hebrew term sädäq is actually untranslatable and combines justice, goodness and love into a unity. “It describes all our benevolence, from giving alms to giving ourselves to one's neighbor, as something that is due to that neighbor and with the fulfillment of which we have only done what is our duty to God. [...] A loveless, blind, blindfolded justice would be a self-contradiction in Hebrew, while Zedaka , from a legal point of view, is an injustice in favor of the poor. "

Justice. Fresco by Raphael in the Vatican

In the Christian sense, human righteousness arises indirectly through the selfless love of God inherent in human beings as a motivation for one's own actions and directly through the automatically resulting observance of God's commandments (cf. Jesus: “If you love me, you will keep my commandments”, John 14 , 15  EU ). Justice includes mercy from (God's) love . Overriding this righteousness is God's righteousness , through whose love and action God's righteousness is given as grace to people living on earth, but which, after the biological body death, to sinful but "righteous" people in God's judgment as forgiveness and redemption facing.

According to the Old Testament , God's righteous action is also revealed in what are known as the saving instructions. The Gospels of the New Testament testify to the preaching of Jesus from the same tradition. The numerous miracles or healings reveal the saving love of Jesus "Father in Heaven". The parables of Jesus make it clear that every individual is assured of God's forgiveness and redemption as well as an eternal life in paradise through his own earthly life as a “righteous man” . The parable of the workers in the vineyard ( Mt 20 : 1-16  EU ) shows that, according to the Christian concept of justice, what matters most is that a sinner trusts in God at all and begins a just life on earth and receives God's “reward” for it regardless of whether he followed Jesus at the beginning or at the end of his adult life . The apostle Paul experienced God's saving action in the early church through his own spontaneous conversion . The personal trust in this event, d. H. the faith gained from it places it under the justifying work of God. According to Paul, God's righteousness is " revealed by faith to faith" ( Rom 1.17  EU ) "without doing the law" ( Rom 3.21  LU ). The righteousness of God is the eternal gift of God to the world, the eternal source of God's love in people is the motivation for just action between people; The distinction between “perishable” injustice in the world and “eternal” righteousness as the work of God in practical action in this world: “Do not put your members at the disposal of sin as weapons of injustice, but make yourself completely available to God as people who are supported by Live raised from the dead , and put your members in the service of God as weapons of righteousness ”( Rom. 6:13  EU ). Because justice is a key concept in the Bible, it came in modern times with the resolution of the VI. Full assembly of the World Council of Churches in Vancouver 1983 to agree on the conciliar process for Justice, Peace and Integrity of Creation. The priority of the goal of “Peace in Justice” was confirmed by a representative all-Christian assembly at the first European Ecumenical Assembly in 1989 in Basel and has since been incorporated into constitutional texts. A year later, the World Ecumenical Assembly on Justice, Peace and Integrity of Creation in Seoul, with the participation of all Christian denominational families, formulated the basic convictions: “The only possible basis for lasting peace is justice. ( Isaiah 32:17  MENG ) "," The source of human rights is the righteousness of God who liberates be enslaved and verelendetes people from oppression ( 2. Moses from 3.7 to 8  EU ) "," God's justice protects, the least ' ( Matthew 25 : 31-46  EU , those who are most vulnerable, Deuteronomy 24  EU ). God is the advocate of the poor ( AmosEU ) ”.

In Islam , justice ("'adl") is a commandment from Allah within the framework of the world order he has given. He himself is the embodiment of justice: "Allah testifies, in keeping with justice, that there is no god but him." (Cor. 3:18) Correspondingly, justice is a fundamental requirement of the Muslim . “My Lord has commanded righteousness.” (Cor. 7, 29) The Koran focuses on concrete human action in a large number of passages.

  • “God commands you to return the goods entrusted to their owners; and when you judge between two people, judge according to righteousness. "(4, 58)
  • "Do not follow the desire instead of proceeding justly." (4, 135)
  • “The hatred of people should certainly not mislead you into not behaving fairly. That is closer to the fear of God. "(5, 8)
  • "God loves those who act righteously." (5:42)
  • "When you testify, be righteous, even when it comes to relatives." (6, 152)
  • "My people, give full measure and weight justly." (11, 85)

In Islam, too, faith leads to a just attitude. "You who believe, stand for God as a witness of righteousness." (Cor. 5, 8) Likewise, God is the judge who judges injustice and right on the day of judgment. (Cor. 10, 54)

In the Asian wisdom teachings of Confucianism , Daoism and Buddhism , the category of justice (as correct action) is part of more comprehensive doctrines of virtue and duty, which are primarily geared towards the individual, but in Confucianism also relate to the state and society.

A fundamental problem for all religions with the idea of an all-powerful , all-good, just and engaging in world affairs of God in the face of existing in the world evil , the so-called theodicy : the question of how the existence and transcendent reality of God with evil in this side , earthly natural reality is compatible.

Theories of justice

A more in-depth presentation of individual theories on justice can be found in the main article Theories of Justice .

Antiquity and the Middle Ages: Justice as a Virtue


The question of the nature of justice has been the subject of philosophical discussion since ancient Greece . Early explanations relied on metaphysical reasons. Justice was understood as an order in nature or as a divine origin. At first, justice was not primarily measured against codified law, but viewed as an expression of a personal way of life. Both Plato and Aristotle saw eudaimonia (good, successful life; often translated as "happiness") as the highest value to be striven for . Justice as a virtue and a fundamental character trait were seen as a prerequisite for attaining eudaimonia.

For Plato justice is an eternal, transcendent, immutable idea in which the soul participates. Justice prevails “when one does his own thing and not do many things” ( Politeia IV, 433a), when every person and every part of the soul does only what is appropriate. Therefore, the state has to ensure that everyone performs their task according to their abilities and does not interfere in other people's responsibilities. Plato affirms the demand that everyone should get what he deserves ( suum cuique ), but he emphatically rejects it as a defining feature of justice.

The analytical division of the concept of justice by Aristotle is used up to the present day. He differentiates between legal (general) justice and the special justice that is decisive for interpersonal relationships (iustitia particularis / specialis). He differentiated the latter into “distributive justice” (iustitia distributiva) and “equalizing justice” (iustitia commutativa). Epicurus broke away from the concept of natural law and saw justice as an agreement of mutual benefit in human community.

In Roman society, the codified laws gradually developed. Justice was still associated with a personal attitude, but with Cicero, for example, it was more oriented towards the social order. The legal collection of Emperor Justinian I (527-565), the Corpus Juris Civilis , begins with the definition of law from general principles:

"The precepts of law are these: live honorably, do not offend others, grant each his own."

Starting in late antiquity and extending into the late Middle Ages , Christian ideas subsequently dominated the debate. The righteousness of God took precedence and consequently man could obtain righteousness only through the grace of God.

Modern times: justice through social contract, right of reason

With the modern age there was a gradual solution from the idea of ​​a God-given order of justice. Thomas Hobbes established justice as a necessary principle from human nature. As a result of the new worldview, various concepts of the social contract emerged from Hobbes to John Locke to Jean-Jacques Rousseau , which also had political influence on new absolutist and liberal social systems. The models of a social contract, each conceived as a thought experiment , follow different, sometimes contradicting justification concepts.

Thomas Hobbes

Hobbes' contract is the model of a purely rational community of convenience with which the aggressive nature of man is to be tamed. In the dedication to his work De Cive (About the Citizen) it says about the original nature of man: “Homo homini lupus est”, which means that man is man's wolf. To avoid a war of all against all ("Bellum omnia contra omnes"), he writes in the Leviathan , people transfer their natural rights, such as self-defense, to a sovereign who autonomously establishes law and enforces it with force . This legitimation of an absolute ruler is at the same time the foundation of an unrestricted legal positivism , which knows injustice only as a violation of applicable law. "Where there is no general violence, there is no law, and where there is no law, no injustice."

For Locke, on the other hand, there is a pre-positive, God-given natural law in which man, similar to what Seneca saw before him , is free and has the right to create property . The social contract is a cooperation agreement so that the government only represents the will of the citizen of the state. It is bound by the constitution as a basic treaty and is controlled by the separation of powers .

With Rousseau, the state has a similar protective function as with Hobbes. Rousseau, however, saw the “struggle of all against all” caused by property and the step of people into civil society. The state serves to prevent injustice and may also use force for this purpose. The social contract ( contrat social ) in Rousseau is not concluded with an independent ruler, but with a state that embodies the common will ( volonté générale ). As a result, the only possible form of government is the republic without indirect representation (parties, parliament). Social justice is part of the nature of the social contract , meaning that "no citizen may be so rich to buy another, nor so poor to have to sell himself."

While Locke's ideas had an influence on the constitution of the United States of 1787 with its catalog of fundamental rights, the Bill of Rights , which was added a little later , parts of Rousseau's concepts tended to shape the French Revolution .

The skeptics David Hume and Immanuel Kant took a further step, referring to the impossibility of linking being with ought ( Hume's law ). Kant rejected natural law as metaphysical and developed the idea of the law of reason .

David Hume represented a radical empiricism and thus also rejected ideas of a natural state and a natural law. He saw justice as a product of reason, as a secondary virtue that does not establish any moral commandments or prohibitions, but rather pursues the purpose of ensuring the order of human coexistence. Before the establishment of the state, there were already rules of living together in the family, which became the basis of the social contract. Above all, this protects individual property in a society that is usually characterized by a shortage of goods. If man lived in abundance, everyone could exist according to his needs; the performance principle would not be required. On the other hand, if there is an extreme shortage of goods, people will behave selfishly and injustice will arise.

The Kantian law of reason is based on the consideration that it is an indisputable fact of experience for man that he can determine his actions through reason. He is free and autonomous. This autonomy also arises in the external relationship between people. Out of reason, man is obliged to respect the personality and in it the dignity of the other. According to Kant, this results in the categorical legal imperative:

"The right is therefore the epitome of the conditions under which the will of the one can be combined with the will of the other according to a general law of freedom."

The freedom of the individual is guaranteed by a self-imposed law. This guarantees autonomy, but at the same time limits freedom through the common determination of law. This determination of (iuridic) justice is purely formal. According to Kant, empirical experience is required for material justice. Starting out from Locke and Hume, Kant adopted the model of the social contract, but just as little accepted the idea of ​​natural law as the relativity of justice that arose from Hume's skepticism. Its foundation of justice lies in morality as a commandment of pure practical reason.

Modern: utilitarianism, skepticism, trial and error, discourse, fairness

Following on from Hume, utilitarianism emerged in the English-speaking world as a dominant ethical principle that placed general welfare (the benefit to society as a whole ) at the center of values ​​and referred justice to the level of a framework. Jeremy Bentham first formulated "the greatest happiness of the greatest number" as the original utilitarian goal. John Stuart Mill already relativized this pure hedonism by qualitatively evaluating preferences and taking values ​​and virtues into account. He saw righteousness as a perfect duty because it can be demanded. This is precisely why it can also be enforced with sanctions . Henry Sidgwick countered the criticism that the overall benefit resulting from the action could not be determined in individual action situations with rule utilitarianism , according to which values ​​and virtues as secondary principles ensure the benefit for society as a whole (see also Richard Mervyn Hare ). Modern representatives of utilitarianism are JJC Smart , Peter Singer and John Harsanyi . The underlying benefit concept results in a strong proximity of utilitarianism to welfare economy and the decision theory that is closely related to it .

In the wake of the Enlightenment, there is skepticism against a binding (heteronomous) justice. Friedrich Nietzsche denied that life was essentially determined by practical reason at all. - Karl Marx took the view that justice should be derived from given principles, the view that law and justice belong to the so-called superstructure : Justice is based on the respective material conditions and, for example, in capitalism is an expression of the rule of a bourgeois class . - Walter Benjamin and Jacques Derrida pointed out that justice is a metaphysical quantity that is immanent in law but cannot be grasped as a category. - According to Critical Rationalism, knowledge of justice is carried out experimentally through "trial and error". This step-by-step advancement is based (very clearly in case law) on the conscience and consensus of lawyers.

The discourse theory , in particular the discourse theory of law of Jürgen Habermas , starting points to solve questions of justice rational and represents an attempt to arrive at balanced and therefore nearly equitable results: within a society and beyond.

Amartya Sen

A new approach in the discussion arose with the theory of justice as fairness by John Rawls , who accepted a number of basic rights as a prerequisite for justice and thus offers general principles for the just design of society in the further development of Kantian ideas. Following on from Rawls, an intense debate about the question of justice arose in the last 30 years of the 20th century. Criticism of the liberal egalitarianism represented by Rawls or Ronald Dworkin came from the radical liberal positions of Robert Nozick , Friedrich Hayek or James Buchanan , as well as from the community-oriented communitarianism , in particular from Charles Taylor , Michael Sandel , and Alasdair McIntyre and Michael Walzer was represented.

Martha Nussbaum and Amartya Sen show a way away from the sole dominance of economic criteria with their approach of development and realization opportunities (English capabilities ), which is based on a bundle of values ​​for judging justice. In doing so, they take into account the very different needs of people and above all take into account the problems of international justice.

Justice and justice

In addition to terms such as law , law and punishment, justice is one of the basic concepts of legal philosophy and jurisprudence.

The Sleep of the Three Righteous, woodcut by Ernst Würtenberger

Legal justice differs from ethical justice in that the norms valid in the community have been declared binding. The basic question arises as to who is responsible for this determination, who has the legislative power. A distinction must be made between codified (written) law , customary law and contract law as sources of law . A legal order regulates both the relationship of the individual to one another and that of the individual to the community. The law becomes binding if deviations from it are found to be a breach of law and can be punished (with legal consequences).

The very existence of a legal system - however this may be -, i.e. deviating from pure arbitrariness, forms a basic fact of justice because it creates legal security for the individual and allows him to derive his freedom of action. This is a formal condition of justice guaranteed by positive law as such. Material justice is to be achieved on three levels: in legislation , in judicial proceedings and in criminal law . Legal security as a necessary condition of formal justice is a short-term goal of law, the establishment of material justice the long-term goal. The case law aims to mediate between these two legal values. The greatest injustice can result if legal certainty is made the sole objective. In addition, the state based on legal justice must implement its legal system in a credible manner for the social actors . The interaction of justice (conceptions), law (system) and (enforcement) power becomes clear.

Natural law vs. Legal positivism

Justice at the Berlin Regional Court

One of the fundamental questions of legal philosophy is whether there is a universal natural law or whether laws should come into being solely on the basis of man-made rules. The latter view is called legal positivism . Depending on the view, the relationship between justice and law is determined differently. As far as applied to the legal order, representatives of natural law at least demand that laws are derived from ethical principles and must be in harmony with them.

For legal positivists, the law arises from social practice and is independent of morality (separation thesis), which also includes the idea of ​​justice. Law is judged solely on its expediency. In addition, there are approaches that attempt in different ways to link elements from both directions.

The conflict between the two positions is based in principle on the difference in the nature of the basic values ​​of a society. For the legal positivist, they are chosen by humans and differ depending on the cultural context. For some natural law scholars, moral determinations such as human dignity, freedom, equality or the inviolability of life are inalienable values ​​that exist independently of culture and independent of the law in force; others relate to reason. As a practical consequence, positive laws can represent injustice for the natural lawyer .

According to a widespread, but too general view, the established law is valid without restriction for legal positivism, while according to the understanding of natural law, civil resistance to existing laws can be justified and even ethically required under certain (extreme) conditions . Related to this (not identical, but) is the distinction between mandatory legal validity and the mere enforceability of regulations, such as B. the camp rules of a concentration camp, justify a conditional obligation, but legitimize disobedience. Radbruch's formula , which Gustav Radbruch developed against the background of the Nazi injustice state , provides a non-positivist justification for a right to resistance . That this dichotomy over-simplifies the attitude of legal positivism and natural law to the problem of justice is made clear by two counterexamples: on the one hand, there are positivist-oriented legal philosophers such as the Briton HLA Hart , the most important legal positivist of the 20th century alongside Hans Kelsen , and In the German-speaking world, the philosopher Norbert Hoerster repeatedly pointed out that the positivist separation thesis in particular enables a critical assessment of the applicable standards of justice. Legal criticism could even succeed better with a legal positivist theory than one based on natural law, since only that theory is able to differentiate between law as it is and law as it should be. In a discussion with representatives of natural law, however, Hans Kelsen expressly emphasized that natural law had the disadvantage compared to his pure legal theory "that one must then assume that Soviet law ... (and) that Nazi law is not a law ..." On the other hand, Immanuel Kant, for example, has one Reasonable legal doctrine based on material principles, developed a right of the people to resist unjust laws, even those that violate human rights, but strictly rejected.

Equality before the law as a fundamental right

The principle of equality is an important basis of the legal endeavors for justice. It is a guideline for legal development and, overall, a foundation for the rule of law . Therefore it is part of most constitutions. Thus, under Article 3. Section 1 of the German. Basic Law (GG): "All human beings are equal before the law" and also refers here to the justice: "The German people acknowledge ... inviolable and inalienable human rights as the basis of any human community, peace and justice in the world. "( Article 1, Paragraph 2 of the Basic Law)

In the Universal Declaration of Human Rights of the United Nations from 1948 states: "All human beings are born free and equal in dignity and rights. [...] Everyone has the right to the rights and freedoms proclaimed in this declaration without any distinction, such as race, color, gender, language, religion, political or other conviction, national or social origin, property, birth or other circumstances . "

Justice in court

Justitia at the building of the Ravensburg Regional Court

In addition to the codified law, the means by courts an essential step towards the creation of legal certainty and justice, especially when combined with the ban on private justice or vigilantism associated. The institution of the judiciary should ensure that legal disputes in civil law as well as legal violations in public and criminal law are judged and decided or punished equally and appropriately by knowledgeable, independent persons. This is necessary to ensure justice, since laws are generally formulated in character and can only be applied to specific facts through an assessment.

A number of factors contribute to fairness in a legal process:

  • complete clarification of the facts
  • Impartiality of the judge (no bias )
  • Expertise of the judge
  • legal expertise of the judge
  • Publicity of the procedure
  • a generally applicable procedural order
  • the right of those involved to inspect files
  • the opportunity to request evidence, to question witnesses and experts, and to comment on the factual and legal situation
  • the possibility of a lawyer to be represented

The ability to make judgments and the associated personal justice of the judge are desirable, but not enforceable. Since laws require interpretation and the possibility of error exists, the possibility has developed to appeal to a higher court. The publication of judgments, which works towards the uniformity of case law, also contributes to legal certainty. In the case of criminal offenses, the fact that the public prosecutor's office must investigate ex officio when a suspicion becomes known contributes to the uniform application of the law without regard to the person. To a large extent, these ideal conditions can be achieved in democratic constitutional states.

The problem of judicial law

The scales as a symbol of a just (balanced) jurisdiction

Since laws are general, abstract regulations, it happens again and again that legal problems arise in individual life issues that are not regulated by law. This can lead to situations that are perceived as unfair. This can be remedied by further legal training leading to so-called judges' law . In the original version of the Civil Code, the law of obligations only provided for two cases in which the debtor would have to pay damages to the obligee in the event of a default in performance : impossibility and default . It soon turned out that another group of cases had been overlooked by the legislature, namely poor performance: the debtor performs the performance, but in doing so causes damage to the creditor. In order to find satisfactory solutions here, case law supplemented the law with the legal figure of positive breach of claims . This was recognized as a gap-filling judge's law until it was expressly regulated by the legislature in 2001 by a new version of § 280 BGB.

However, analogies are more common in case law . Analog here means to apply a law to another situation accordingly. The addition of legal loopholes is expressly provided for in Swiss law:

“If no provision can be derived from the law, the judge should decide according to customary law and, where there is no such rule, according to the rule that he would establish as a legislator. He follows proven doctrine and tradition. "(Art. 1, Paragraphs 2 and 3, Swiss Civil Code )

There is no such legal rule in Germany, but it is recognized that under certain circumstances the case law may analogously apply a law that does not apply to a situation according to its wording, if such an application is necessary from a justice point of view and there is an unplanned regulatory gap (i.e. the Legislator has not deliberately made no regulation). In particular, a constitutional interpretation of simple statutory law can be achieved with this.

In the Soraya judgment of 1973, the Federal Constitutional Court expressly approved the fact that the BGH, contrary to the wording of the then Section 847 (1) BGB (now Section 253 (2) BGB), granted compensation for pain and suffering for the violation of the general right of personality . As a justification it stated:

“The traditional binding of the judge to the law, an essential part of the principle of separation of powers and thus the rule of law, is modified in the Basic Law, at least in terms of the wording, so that the judiciary is bound by law and justice ( Article 20.3 of the Basic Law). In this way, according to general opinion, a narrow legislative positivism is rejected. The formula maintains the awareness that law and justice do in fact in general, but not necessarily and always coincide. Law is not identical with the totality of written laws. Compared to the positive statutes of state power, there may under certain circumstances be more rights that have their source in the constitutional legal order as a whole and can act as a corrective to the written law; Finding it and implementing it in decisions is the task of jurisprudence. According to the Basic Law, the judge is not required to apply legislative instructions to the individual case within the limits of the possible literal meaning. Such a view would presuppose the fundamental lack of gaps in the positive state legal order, a situation that is justifiable as a fundamental postulate of legal security, but is practically unattainable. Judicial activity does not only consist in recognizing and pronouncing decisions of the legislature. The task of jurisprudence may in particular require values ​​that are immanent in the constitutional legal system , but not or only imperfectly expressed in the texts of the written laws, in an act of evaluative knowledge, which also does not lack volitional elements bring and realize in decisions. The judge must keep himself free from arbitrariness ; his decision must be based on rational reasoning. It must be made clear that the written law does not fulfill its function of solving a legal problem fairly. The judicial decision then closes this gap according to the standards of practical reason and the well-founded general notions of justice of the community . "

With the judgment of January 25, 2011, the Federal Constitutional Court pointed out the limits of such legal development:

However, there are limits to the task and authority of “creative legal finding and legal development”, with due regard to the principle of binding jurisdiction, which is indispensable for reasons of the rule of law. The judge must not evade the meaning and purpose of the law as defined by the legislature. He must respect the basic legislative decision and assert the will of the legislature as reliably as possible. He has to follow the recognized methods of interpretation of the law. An interpretation that as a judicial legal development puts the clear wording of the law aside, finds no echo in the law and is not expressly approved by the legislature or - if there is a recognizable unintended legal loophole - tacitly approved, inadmissibly interferes with the competences of the democratically legitimized legislature.

The problem of such judicial law, analogous to the application of laws, is that due to the principle of the separation of powers, legislation is reserved for the parliamentary legislature, while the judge is bound by the applicable law, but is not supposed to create new law. Critics also point out that judicial law contains an element of arbitrariness in case law that contributes to legal uncertainty. In particular, it is a systematic flaw in judicial law that the legal principles laid down in the judgment had not previously been a legal basis for such cases. Judge law thus violates the principle of the non-retroactivity of laws. The problem with aspects of the separation of powers is that the legislature could often regulate a problem, but does not want to, because a regulation is difficult to achieve in parliament and it leaves the problem to the courts.

In principle, legal training and the analogous application of laws to the detriment of a defendant in substantive criminal law are not permitted , since the strict principle of Nulla poena sine lege applies there. Analogies in criminal procedural law are permitted, provided the principle of fair trial is not violated.

The Anglo-American legal system gets by with fewer legal norms created by the legislature; it develops - more on a case-by-case basis - essentially through further training in judicial law. An alignment of the legal systems should be noted here. On the other hand, the Anglo-American legislature is increasingly intervening in society by setting legal norms, on the other hand, in the Franco-German legal system, more and more legal questions are regulated in specific individual cases by the courts than by the legislator.

Justice in Criminal Law

Justice according to Max Baumann at the Berlin Cathedral

Punishments are an essential encroachment on the individual's right to self-determination . They therefore require a basic justification . Judicially imposed penalties for violating the law have several functions that are weighted differently in the criminal law of different countries:

In doing so, a criminal has in some way gained an advantage and upset the moral balance of society. In this sense, punishments are a form of compensatory justice and are related to the past. They are based on the fundamental assumption that perpetrators act of their own free will and are aware of or at least could be aware of the possible consequences of their actions. The philosophers Immanuel Kant and Georg Wilhelm Friedrich Hegel represented this purely retaliatory, compensatory and past-related character of punishment most consistently . According to Kant, "[if an island people decided to dissolve] the last murderer in prison would have to be executed beforehand, so that what happens to everyone for what his deeds are worth and the blood guilt does not adhere to the people who have not insisted on this punishment". Hegel expressed the idea of ​​compensatory justice by viewing crime as the negation of law, and punishment, on the other hand, as the negation of this negation.

The concept of criminal law as a form of compensatory (retaliatory) justice is questioned by advocates of pure preventive criminal law. Already in the 1st century AD, Seneca stated , referring to Plato , who was referring to the ancient Greek skeptic Protagoras , that a clever person does not punish because he has sinned, but rather that he does not sin (“ Nam, ut Plato ait: 'Nemo prudens punit, quia peccatum est, sed ne peccetur ...' "). The idea of ​​prevention then experienced a heyday from the Age of Enlightenment . Important representatives of a predominantly preventive criminal law were, for example, the Italian criminal law reformer Cesare Beccaria at the end of the 18th century and the German criminal lawyer Franz von Liszt , who dedicated his famous Marburg program of 1882 to the idea of ​​prevention . From a philosophical perspective, the idea of ​​retribution was rejected by Friedrich Nietzsche , for example . He held retaliation as a reason for punishment for an irrational instinct for revenge, which is supported by Catholic teachings ("hellfire").

Prevention through deterrence is based on the assumption that the state authority will succeed in noticeably reducing the scope and frequency of criminal offenses if the punishment threatened is sufficient. This is intended to ensure justice from the outset.

Successful rehabilitation measures that lead to the reintegration of criminals into society work in the interests of justice. Because they increase general legal certainty by decreasing recidivism rates.

The psychological and sociological argument that people often commit crimes on the basis of personal disposition and social conditions, i.e. are largely determined (fixed) and thus incapable of guilt, has recently been supported by neuroscientists such as Gerhard Roth , but it is highly controversial.

Penal norms often only serve to enforce regulatory purposes without having to disturb the moral equilibrium of society. Residence restrictions for asylum seekers under German law serve only to facilitate subsequent deportation and to ensure that asylum seekers are evenly distributed across all federal states. Anyone who violates this has not gained any moral advantage, but merely undermines the given regulatory purposes.

Justice in Art and Literature

The justice fountain in Frankfurt / Main

There are numerous artistic representations of justice, for example in paintings and sculptures. Justice is often portrayed allegorically as a woman with a sword, scales and a blindfold. A number of cities have fountains of Justice , often with a statue of Justitia .

Justice is also often a central theme in literature and spoken theater. Already in the ancient Greek theater, Aeschylus devotes his attention in the Oresty to a criminal case that is very difficult to decide on 'just' , in which gods and people advise and judge a mother murderer who wanted to avenge his father murdered by his mother. In the German-speaking world, Friedrich Schiller addressed justice in many of his works from Die Räuber to Wilhelm Tell , but also in the ballad Die Kraniche des Ibykus . Heinrich von Kleist gave famous examples with his story Michael Kohlhaas and his comedy Der zerbrochne Krug . Gottfried Keller contributed to the topic with the grotesque The Three Just Comb Makers . Franz Kafka's parable Before the Law refers to the impossibility of drafting a just law . Also famous is The Caucasian Chalk Circle by Bertolt Brecht . In the drama The righteous themed Albert Camus , the question of the use of terrorist violence. Friedrich Dürrenmatt problematized the relationship between law and justice in the novel Justiz , which was filmed in 1993 by Hans W. Geißendörfer .

In opera, for example, justice and magnanimity wrestle with one another in Mozart's La clemenza di Tito . Giuseppe Verdi processed Schiller's robbers in the opera I masnadieri . Ludwig van Beethoven addresses freedom, justice and brotherhood in his only opera Fidelio . In the radio play Who turns around or laughs ... by John von Düffel , director: Christiane Ohaus , the 42nd episode of the radio crime scene , Radio Bremen 2011, the psychosis of the actual perpetrator revolves around the manic demand for justice.

Well-known film adaptations on the subject of justice are Witness for the Prosecution , The Twelve Jurors , Taboo of the Just , The Winslow Case or ... and Justice for All . In the u. a. by Amnesty International winning movie Hunt for Justice (Hunt for Justice), directed by Charles Binamé are the establishment of the War Crimes Tribunal in The Hague and the resistors to the trial of Slobodan Milosevic at the center of the action.

See also

Individual evidence

  1. ^ Plato: Politeia . 443d
  2. Aristotle: Nicomachean Ethics . (V, 1129b; translation by Eugen Rolfes, Meiner, 1911) and Thomas Aquinas: Summa theologica. after Josef Pieper: About the virtues. Kösel, Munich 2004, p. 75, similar to David Miller: Principles of social justice. Campus, Frankfurt 2008, p. 62, also Richard Hauser: Justice. In: Historical Dictionary of Philosophy . Volume 3. Schwabe, Basel 1974, Sp. 330.
  3. Otfried Höffe: Justice. 2nd Edition. Beck, Munich 2004, pp. 29-30.
  4. ^ Friedrich Kluge: Etymological dictionary of the German language. 24th edition. Berlin / New York 2002, p. 348.
  5. Ernst Tugendhat : Justification of Morality and Justice. (PDF; 892 kB) p. 6.
  6. Otfried Höffe: Justice. P. 16.
  7. ^ Georg Wilhelm Friedrich Hegel: Basic lines of the philosophy of law. 1821, § 244.
  8. Bernd Rüthers: The injustice of justice - misinterpretation of a term. 3. Edition. Mohr Siebeck, Tübingen 2009.
  9. Ernst Topitsch: On empty formulas - On the pragmatics of language use in philosophy and political theory. In: E. Topitsch (ed.): Problems of the philosophy of science. Springer Verlag, Vienna 1960, pp. 233-264; similar in: Ernst Topitsch: Language as a weapon. (PDF; 27 kB) p. 1.
  10. Hans Kelsen: What is justice? Manzsche Verlagbuchhandlung, Vienna 1975, p. 18.
  11. Max Weber: The sense of "value freedom". In: Collected essays on science. Tübingen 1922. (7th edition 1988, p. 505)
  12. ^ Moritz Renner: Contingency, Redundancy, Transcendence? On Niklas Luhmann's concept of justice. In: Ancilla Juris. 2008, pp. 62-72.
  13. ^ Niklas Luhman: The law of society, Suhrkamp, ​​Frankfurt 1993, pp. 218-219.
  14. Horn, Sacarno: Philosophy of Justice. P. 9.
  15. Susanne Buckley-Zistel: Transitional Justice as a way to peace and security. Possibilities and Limits, SFB Governance Working Paper 15 ( online ( memento from May 25, 2014 in the Internet Archive )); Jon Elster: Close the files. Law and justice after the end of dictatorships, Campus, Frankfurt 2005 ( review by H-Soz-u-Kult)
  16. Chaim Perelman distinguishes: the same to everyone, everyone according to his merits, everyone according to his works, everyone according to his needs, everyone according to his rank, everyone according to what is assigned to him by law. ( About justice. Original edition 1945, Beck, Munich 1967, Pp. 16–20)
  17. John Rawls: A Theory of Justice, p. 336.
  18. ^ A. Leist: Ecological Ethics II: Justice, Economy, Politics. In: Julian Nida-Rümelin (ed.): Applied ethics. The area ethics and their theoretical foundation. A manual (= Kröner's pocket edition . Volume 437). Kröner, Stuttgart 1996, ISBN 3-520-43701-5 , pp. 432-439.
  19. ^ Karl Marx : Critique of the Gotha Program. MEW 19, p. 21.
  20. Christoph Lumer: Justice. In: Hans Jörg Sandkühler (Ed.): Encyclopedia Philosophy. Meiner, Hamburg 1999, p. 468b.
  21. ^ Gustav Radbruch : Philosophy of Law. Study edition, edited by Ralf Dreier and Stanley L. Paulson. 2nd Edition. CF Müller, Heidelberg 2003, pp. 126-127.
  22. ^ Ludwig Erhard: Franz Oppenheimer, the teacher and friend, speech on Oppenheimer's 100th birthday. held at the Free University of Berlin (1964), In: Karl Hohmann (Ed.): Ludwig Erhard: Thoughts from five decades, speeches and writings. Düsseldorf u. a. 1988, p. 862.
  23. B. Sitter: Ecological justice. In: Styrian reports. 6/85; Graz 1985, pp. 3-4.
  24. Otfried Höffe: Justice. P. 99 f.
  25. Stefan Liebig: Empirical Justice. ISGF work report 41 ( Memento of the original from January 8, 2005 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www2.hu-berlin.de
  26. George C. Homans: Elementary forms of social behavior. West German publishing house, Opladen 1968.
  27. ^ J. Stacy Adams: Inequity in Social Exchange. In: Leonard Berkowitz (Ed.): Advances in Experimental Social Psychology. Vol.2, Academic Press, New York 1965, pp. 267-300 and: Elain Walster, G. William Walster: Equity and Social Justice. In: Journal of Social Issues. 31, 1975, pp. 21-43.
  28. ^ Melvin Lerner: The belief in a just world. A fundamental delusion. Plenum Press, New York 1980.
  29. Stefan Liebig: Empirical Justice Research ( Memento of the original from January 8, 2005 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www2.hu-berlin.de
  30. ^ Jean Piaget: About moral judgments in children, Zurich 1954.
  31. Lawrence Kohlberg: The Psychology of Moral Development. 5th edition. Suhrkamp, ​​Frankfurt 1996.
  32. Georg Lind: Morals can be taught. Handbook on the theory and practice of moral and democratic education. Oldenbourg, Munich 2003; homepage of the project
  33. Carol Gilligan: The Other Voice. Life conflicts and morals of women. Piper, Munich 1982 (5th edition 1999)
  34. Deutschlandfunk: Current research. February 27, 2009, 4:35 pm ( online )
  35. ^ Sarah F. Brosnan, Frans BM de Waal: Monkeys reject unequal pay. In: Nature. Volume 425, pp. 297-299, September 18, 2003 edition and Frans BM de Waal: Joint Ventures Require Joint Payoffs: Fairness among Primates. ( Memento of the original of July 10, 2009 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. as well as interview by Frans de Waal In: Die Zeit . December 17, 2003. @1@ 2Template: Webachiv / IABot / www.emory.edu
  36. ^ Susan Perry: Social conventions in Wild White-faced Capuchin Monkeys: Evidence for Traditions in a Neotropical Primate. In: Current Anthropology Vol. 44, No. 2, April 2003, pp. 241-268.
  37. Pinchas Lapide , Carl Friedrich von Weizsäcker : The Beatitudes - A Faith Conversation. Calwer-Kösel, Stuttgart / Munich 1980, p. 72.
  38. On Plato's argument, see Christian Schäfer: Gerechtigkeit. In: Christian Schäfer: Platon-Lexikon. Darmstadt 2007, p. 132 f.
  39. “Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribure”, Digest 1, 1, 10, 1; Court, Justice, 49
  40. According to Hobbes the sentence is also true: “Homo homini deus est”, d. H. man is a god to man - however, this only applies in the socialized state in which man can approach “likeness to God” through the “virtues of peace”, namely “justice and love”.
  41. Thomas Hobbes: Leviathan (chap. 13). 9th edition. Frankfurt 1999, p. 96.
  42. ^ Leviathan , Jan.
  43. ^ Rousseau: Social Contract, 59
  44. Immanuel Kant: Metaphysical Foundations of Legal Doctrine, Introduction to Legal Doctrine, § B (final sentence)
  45. Axel Tschentscher: Procedural theories of justice. Nomos, Baden-Baden 2000 with reference to Jürgen Habermas: factuality and validity. Frankfurt 1992.
  46. Franz-Martin Schmölz (Ed.): Natural law in political theory . Springer-Verlag, Vienna, p. 149 .
  47. Reinhold Zippelius , Der Gleichheitssatz, in: Publications of the Association of German Constitutional Law Teachers, Volume 47, 1989, pp. 7 ff.
  48. BVerfGE 34, 269–293
  49. BVerfGE 34, 269 - Soraya from 1973, quotation from Section IV ( Memento from February 1, 2008 in the Internet Archive )
  50. Az. 1 BvR 918/10, Neue Juristische Wochenschrift . 2011, pp. 836-841.
  51. ^ Johann Braun: Philosophy of Law in the 20th Century. Beck, Munich 2001, pp. 196–197.
  52. HLA Hart : Prolegomena to a theory of punishment. In: Law and Morals. Göttingen 1971, pp. 60-86.
  53. Immanuel Kant: Metaphysical Beginnings of Legal Teaching (AA), p. 333.
  54. Seneca, De ira, liber I, XIX-7
  55. ^ Friedrich Nietzsche: Menschliches, Allzumenschliches. In: Works edition in three volumes. (Schlechta), Volume 1, Darmstadt 1963, pp. 511-512.
  56. see Norbert Hoerster : Law and Moral. Pp. 214-218.


Philosophy Bibliography : Justice - Additional references on the topic

Classic (historical)
Annotated text collections
  • Michel Balinski: The Mathematics of Justice. In: Spectrum of Science. March 2004, ISSN  0170-2971 , pp. 90-97.
  • Thomas Ebert : Social Justice . Ideas, history, controversies (= publication series of the Federal Agency for Civic Education, Volume 1571), Federal Agency for Civic Education, 2nd edition. Bonn 2015, ISBN 978-3-8389-0088-9 . FAZ review .
  • Felix Ekardt: The principle of sustainability. Intergenerational justice and global justice. Beck, Munich 2005, ISBN 3-406-52798-1 .
  • Günter Herrmann: Law and Justice. Spiritual science impulses for a just and humane coexistence. Rudolf Steiner Verlag, Dornach 2007, ISBN 978-3-7274-5332-8 .
  • Claudia Fröhlich, Horst-Alfred Heinrich, Harald Schmid (Eds.): Yearbook for Politics and History , Vol. 1: Historische Gerechtigkeit, Stuttgart 2010
  • Günter Herrmann: Justice! Impulses for a human legal life. (= Scientific treatises and speeches on philosophy, politics and intellectual history. Volume 65). Duncker & Humblot Berlin 2012, ISBN 978-3-428-13736-7 .
  • Arthur Kaufmann , Winfried Hassemer , Ulfried Neumann (eds.): Introduction to the legal philosophy and the legal theory of the present. 7th edition. Müller (utb), Heidelberg 2004, ISBN 3-8252-0593-2 .
  • Jürgen Maes, Manfred Schmitt: Justice and justice psychology. In: Gert Sommer, Albert Fuchs (Ed.): War and Peace. Handbook of Conflict and Peace Psychology. Beltz Verlag, Weinheim / Basel / Berlin 2004, ISBN 3-621-27536-3 , pp. 182–194. (with literature review on justice psychology )
  • David Leslie Miller : Principles of Social Justice. Campus, Frankfurt 2007, ISBN 978-3-593-38152-7 ( review )
  • Thomas Pogge : Justice in the One World. (= Culture in discussion. Volume 15). Klartext Verlag, Essen 2009, ISBN 978-3-8375-0153-7 .
  • John Rawls : Justice as Fairness. a redesign. 2nd Edition. Suhrkamp, ​​Frankfurt am Main 2007, ISBN 978-3-518-29404-8 .
  • Jörg Reitzig : Social contract, justice, work. Westfälisches Dampfboot Verlag, Münster 2005, ISBN 3-89691-611-4 .
  • Bernd Rüthers: The secret revolution from the rule of law to the judiciary state. Constitution and Methods. Mohr Siebeck Verlag, Tübingen 2014.
  • Michael J. Sandel : Justice. How we do the right thing . Ullstein, Berlin 2013, ISBN 978-3-550-08009-8 .
  • Ulrich Steinvorth: Justice. In: Christian Bermes and Ulrich Dierse (eds.): Key terms of the philosophy of the 20th century. Hamburg 2010, ISBN 978-3-7873-1916-9 , 117-130.
  • Judith N. Shklar : About injustice. Explorations to a Moral Feeling. Rotbuch, Berlin 1992, ISBN 3-88022-780-2 .
  • Reinhold Zippelius: Philosophy of Law. 6th, revised edition. CH Beck, Munich, 2011, ISBN 978-3-406-61191-9 .
Justice research

Web links

Commons : Justice  - collection of pictures, videos and audio files
Wiktionary: Justice  - explanations of meanings, word origins, synonyms, translations