Sense of justice

from Wikipedia, the free encyclopedia

In legal history, there are early indications of a sense of justice in Aristotle , who took the view that man is the living being that has a sense of what is just and what is unjust ( Politics , 1213a), and in Justinian's Corpus Juris , in which it said, “ius naturale "sei," quod natura omnia animalia docuit "( Digest I 1, 3), furthermore" quod semper aequm ac bonum est "(Digest I 1, 11); this was called “ius gentium”, “quod ... naturalis ratio inter omnes homines constituit” (Digesten, I 1, 9). The problem of the sense of justice also preoccupied literature , for example in Kleist 's novella Michael Kohlhaas (1864), then behavior research, psychology and the social sciences.

According to the ethical formalism of Immanuel Kant , the sense of justice could be nothing more than a rational judgment of the conscience, capable of generalization, which (as one can say in approximation to Kant) is directed towards the freedoms and interests of one against the freedoms and interests of the other to delimit that they can "exist together according to a general law". - However, the sense of right does not just follow formal principles, but includes valuations that can be reached by consensus. The dispositions for such evaluations are partly natural , partly also acquired, in particular determined by the zeitgeist and the traditions into which one is born.

An elementary sense of justice (sense of justice) is at work in legal developments , especially when the sense of justice demands a change in traditional law. This original sense of justice is stirred up e.g. This also applies, for example, if a child is neglected towards other children for no clear reason and therefore feels that they have been treated unfairly.

Conceptually, this elementary sense of justice is not identical with judicial judiciary : This is understood to mean the intuitive access to the decision of a case that is based on judicial professional experience. Because this positive law to be applied by the judge has arisen from diverse interests and only partly from ideas of justice that are capable of consensus; but as far as this is the case, the judge's judiciary will as a rule also coincide with his sense of justice.

Gustav Radbruch used the word “sense of right” to refer to something else : not the “judicial” neutrally weighing judgment of what is fair, but a self-referential sense of right, namely “the feeling of one's own right”, which is between a more or less rigorous “struggle for ( own) right ”and patient indulgence is decisive.

Erwin Riezler put the three different terms - the elementary sense of justice, the judiciary and the self-referential sense of justice - next to each other and assigned the word "sense of justice " a threefold sense, namely:

  • the "ability to intuitively grasp and correctly apply what is applicable law" - (judiciary),
  • a “feeling for what should be right” - (feeling of justice) and
  • the "satisfaction about the realization and enforcement of the law and dissatisfaction or indignation about the injustice" - (self-referential sense of justice).

According to Fritz Dehnow, sense of right refers to “the law in the full scope of the term, in particular both abstract norms and individual decisions as well as all disciplines of law”.

literature

  • Heinz Barta : On the emergence of legal awareness and sense of justice. In: Martin Lang , Heinz Barta, Robert Rollinger (eds.): State treaties, international law and diplomacy in the ancient Orient and in Greco-Roman antiquity (= Philippika. 40). Harrassowitz, Wiesbaden 2010, ISBN 978-3-447-06304-3 , pp. 1-26, pdf .
  • Fritz Dehnow: The nature and value of the sense of justice . In: Archive for Systematic Philosophy. New series of the Philosophical Monthly Bulletins. Vol. 20, No. 1, 1914, pp. 90-92 .
  • Heinrich Henkel : Introduction to the Philosophy of Law. Basics of law. 2nd, completely revised edition. CH Beck, Munich 1977, ISBN 3-406-06558-9 , p. 534 ff.
  • Ernst-Joachim Lampe : The so-called right feeling (= yearbook for legal sociology and legal theory. 10). Westdeutscher Verlag, Opladen 1985, ISBN 3-531-11720-3 .
  • Christoph Meier: For the discussion about the sense of justice. Diversity of topics - results trends - new research perspectives (= series of publications on legal sociology and legal fact research. 59). Duncker & Humblot, Berlin 1986, ISBN 3-428-05992-1 (Zurich, University, dissertation, 1985).
  • Gustav Radbruch : Philosophy of Law (= university paperbacks . 2043). Study edition. Reprint of the edition Leipzig, Quelle & Meyer, 1932. Edited by Ralf Dreier and Stanley L. Paulson. Müller, Heidelberg 1999, ISBN 3-8252-2043-5 , p. 99 ff. With additional information.
  • Erwin Riezler : The sense of justice. Legal philosophical considerations. 3rd, unchanged edition. CH Beck, Munich 1969.
  • Max Rümelin : Right Sense and Right Consciousness. Speech given at the academic award ceremony on November 6, 1925. Mohr, Tübingen 1925.
  • Reinhold Zippelius : Philosophy of Law. A study book. 6th, revised edition. CH Beck, Munich 2011, ISBN 978-3-406-61191-9 , §§ 18 ff.

Individual evidence

  1. ↑ Transl. (Kaser): "Natural law is what nature has taught all living beings", furthermore "what is always cheap and good".
  2. ↑ Translator: as "international common law" (Kaser) was called that which natural reason has placed between all people.
  3. ↑ Kant : Metaphysics of Morals. 1797, doctrine of virtue. Introduction XII b, § 13.
  4. ↑ See Kant: Metaphysics of Morals. 1797, introduction to legal theory. §§ B, C.
  5. ↑ Reinhold Zippelius: Philosophy of law. 6th revised edition. 2011, §§ 5 III, 19 IV and in the theories of justice .
  6. ^ Gustav Radbruch: Philosophy of Law. Study edition. 1999, p. 99 ff.
  7. ↑ Erwin Riezler: The sense of right. 3rd, unchanged edition. 1969, p. 6 ff.
  8. ↑ In this sense, Heinrich Henkel probably understood the sense of justice as an "emotional feeling for legal ought and may" ( Introduction to Legal Philosophy. 2nd, completely revised edition. 1977, p. 534).
  9. ↑ Fritz Dehnow: Essence and value of the sense of right. In: Archive for Systematic Philosophy. New series of the Philosophical Monthly Bulletins. Vol. 20, No. 1, 1914, pp. 90-92.