Exploring Totalitarianism and the Concept of Justice

‘The Trial’, written by the visionary German write, Franz Kafa is one of the novels that sheds light on the totalitarianism of a government and how a judicial system works under the process of such totalitarian government. The transcripts of ‘Trial’ revolve around the mindless bureaucracy of law and how the main character, Joseph K. has been susceptible to the incomprehensible authority of law. In this excerpt as has been taken from Franz Kafka’s ‘Trial’, the author has exclaimed the rule and validity of law and how the bureaucracy of a state worked so arbitrarily, despite all codified statues in force. For students grappling with the complexities of legal systems and seeking clarity on such themes, seeking law dissertation help can provide the most valuable insights into the intricacies of legal structures and their implications within societies.

In the abovementioned excerpt as has been taken from Franz Kafka’s ‘Trial’, to understand the notion of the arbitrariness and totalitarian character of law and the vocation of the bureaucratic agency in the real world along with the elements of law as has been enumerated by HLA Hart in his book, The Concept of Law, we shall hereby discuss the concept of justice and how concept of justice upholds the spirit of law. The same shall be followed by HLA Hart’s insights and Robert Cover’s essay namely, ‘Violence and the Word’ to conclude the significance of law and justice and critically analyse the concept of moral justice and systematic justice and whether the justice system categorically takes account the society as a whole.

The Concept of Justice

The concept of justice does not have a starting point which can be defined within a steady spectrum. The Concept and conception of justice is a continuous reflection of the growth of a particular society and the ideal of delivering a wrongdoer with the ‘just’ punishment for the wrongdoing can be rough sketch of the justice.

However, the concept of justice is something that evolves around the strict definition of justice and the conception is an ever-growing subject. The concept of having the justice of ‘an eye for an eye’ of the ancient era is no more acceptable in the light of the modern age and with the growth of the society as a whole, the conception of justice has outgrew its previous conception and embraced a more humane approach as well.

1. HLA Hart (2012); The Concept of Law; Oxford University Press, 3rd Edition
2. Wojciech Sadurski (1985); The Concept of Justice. In: Giving Desert Its Due. Law and Philosophy Library, vol 2. Springer

The concept of justice can be divided into two categories – Moral Justice and Systematic Justice. While morality constituted an important part in forming the concept of justice during the ancient era, the modern age jurists relies a lot on the concept of systematic justice. The systematic justice that tries to approach a more humane meaning of a wrongdoing and delivers sentences based on several measures such as age, the sanity of the wrongdoer etc. However, even the systematic justice, with all the right orders of law in places fails to deliver the humane justice the society needs and the sole responsibility hereby carries out by the offices of law and order and their agents.

Systematic Justice and HLA Hart’s the Element of Law

As has been enumerated under HLA Hart’s book ‘The Concept of Law’, Hart resorts to the concept of concept of law through the lens of elements of law which are of two folds – primary rule of obligation and secondary rule of obligation.

Element of Law, essentially explains and talks about the need of the primary rule of obligation and secondary rule of obligation and how these two concepts should co-exist in order to uphold the democratic spirit of the Justice System within a State. According to Hart, both of these elements of law shall exist in close proximity in order to establish a close knit community with procedural fairness with humanely approached legal interpretation in mind.

According to HLA Hart, the primary rule of obligation shall refer to the codified law of the States while the Secondary rule of obligation shall refer to the administrative jurisprudence that will uphold the spirit of the primary rule of obligation by delivering the just legal interpretation and justice herein.

However, the defects of such systematic interpretation to law and deliverance of justice carried out by the agents of law and order have been pointed out by HLA Hart as well. According to his concept of Elements of Law, it has been stated that the rules of obligations have several defects and one of them is that the rules do not possess a static character. Thus, in case of doubts, the rules shall resort to arbitrariness and the character of justice, which is in the hands of the jurists or the judges, is revealed to be capricious and unpredictable as has been stated in Franz Kafka’s ‘The Trial’. Apart from this, there are other defects of administrative jurisprudence as well which is social inefficiency, slow growth of the systematic approach to justice as morality tends to overrule the logical interpretation of law in respect of the growing society and its needs.

1. HLA Hart (2012); The Concept of Law; Oxford University Press, 3rd edition, p.94
2. Ibid, p.95,96
3. Ibid, p. 106

The concept of systematic justice, interpreted by the judges of the courts can be secured by the imposition of the three powers conferring rules, named as the secondary rules, can be defined herein as:

a. The rule of change which introduces public legislation for the purpose of deliverance of justice.

b. The rules of adjudication which introduces the establishment of courts of law and enforcement.

c. The rule of recognition that shall provide the general public to identify law through certain institution e.g. the making of will, contracts etc.

How Formalism and Rule-skepticism influences legal interpretation of Justice?

HLA Hart’s concept of Formalism and Rule-Skepticism adheres to a more rigid adherence to codified rules in order to rule of arbitrariness. To uphold a certain legal interpretation of justice, Hart has proposed the imposition of a higher body of rules from where the secondary laws of lands shall be derived. Through this concept, Hart has proposed the existence of Constitutional Law of the State. The other codified laws of land shall derive legal validity from this legal body and even if the general people do not accept these rules, the agents and carriers of law and order shall be strictly bound by these rules herein.

1. Shruti (2014); Whether British Contemporary Society Is Socially Just? < https://www.tutorhunt.com/resource/10968/> accessed on 17th May, 2021
2. Massimo La Torre (2013); The Hierarchical Model and H. L. A. Hart's Concept of Law, < https://journals.openedition.org/revus/2746> accessed on 17th May, 2021

However, such adherence to rigid compliance can prove to be fatal to administrative jurisprudence as it shall have very little scope for the growth, HLA Hart also provides little scope to the concept of Open Texture of Law.

While it may be convenient to deal with every future aspect and situation of law in advance and create procedures for every possible outcome, it is not practically possible. If that could have been attained, our world would have been ruled by ‘mechanical deliverance of justice’ and the legal interpretation, based on the expertise of a judge shall cease to exist altogether. The lack of foretell or the indeterminacy of aim provides us with scopes to evolve and attain where lies the significance of the administrative jurisprudence. Also, the rule skepticism lies with the Judge’s and Jury’s discretion on the concept of rule of recognition as well.

The system of Justice and the agents of law and order – A critical approach of Robert Cover’s ‘Violence and the word’

‘Violence and the word’, written by Robert M. Cover, is a 1986 article which approaches the meaning and concept of violent ramification of legal interpretation and deliverance of justice in the hands of the agents of law and the jurists and/or the judges.

Robert Cover, beautifully explains the relation between the deliverance of justice, the legal interpretation to that of pain, death and violence. According to the words of Robert Cover, law and order can be described as an imposition and projection of future scenarios in present and thus to approach according to the future projection. And according to the author, during the course of such projection, due to inability of humans to foretell the future, inhuman deliverance of justice happens which are not even considered to be miscarriage of justice as law and order are not retrospective.

Robert Cover critically analysed the interpretation and delivery of justice by the jurists and the judges to be of imposing death and pain and the acts carried out by the agents of law are always justifying violence in the name of interpretation of law. Thus, violence and justice are two concepts that go hand in hand.

1. HLA Hart (2012); The Concept of Law, Oxford University Press, 3rd Edition, p.126
2. Robert Cover (1986); The Violence and the Word; Yale Law Journal, p.1604
3. Robert Cover (1986); The Violence and the Word; Yale Law Journal, p.1601-1629

The author herein, compares the deliverance of justice in the hands of jurists and judges to the concept of Martyrdom. Martyrs religiously follow their own path of truth and their own path of law regardless the suffering inflicted on the other person and they turn a blind eye to the other party’s new reality. In the same way, the legal system or the agents of the law and order adheres to the one true principle and more than often, the judges refuse to adhere to any other form of explanation, put forward by the alleged wrongdoer.

Robert Cover has upheld the view that practicality of the systematic justice, relying on the interpretation of the judges and the jurists are the violence of law as much as the defendant or the alleged wrongdoer has been deprived of some of their rights forcefully. Thus, all the legal acts of the States gratify and inflict the pleasure of violence.

However, Robert Cover concludes the article by stating that deliverance of justice is of highly complicated nature and the judges cannot always interpret and carry out the justice humanely.

Conclusion

The notion of justice might seem simple in the backdrop of the growth of the society but till date, the concept of justice and the deliverance of justice differ from their subject point. The deliverance of justice or the legal interpretation carried out by the agents of law and order does not always uphold the spirit of the codified law of lands. As has been seen in the excerpt by Franz Kafka’s ‘The Trial’, the bridge between law of the land or the governance of peace and the execution of the same is often covered with arbitrariness and violence. Theoretically, the statues try to maintain the humane approach to ‘just’ actions against the wrongdoers does not always hold steadily in practicality as the conception of justice is extremely complicated. Even if the jurists, judges and the agents of law and order try to adhere to humane interpretation, in reality, the image of justice is far from it.

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1. Dworkin's Hercules appears first in the article "Hard Cases." Dworkin, Hard Cases, 89 HARV. L. REv. 1057 (1975). Hercules lives on in LAW's EMPIRE, supra note 2, at 239-75, wherein he assumes the mantle of a model judge of "integrity," which seems not to be primarily a personal quality for Dworkin but an interpretive posture which values intellectual consistency and coherence. Id. at 164-67.
2. E. SCARRY, THE. BODY IN PAIN 4 (1985).

BIBLIOGRAPHY

Books

Scarry E., the. Body in pain 4 (1985).

Hart H.(2012); The Concept of Law; Oxford University Press, 3rd Edition

Sadurski W. (1985); The Concept of Justice. In: Giving Desert Its Due. Law and Philosophy Library, vol 2. Springer

Articles

Massimo La Torre (2013); The Hierarchical Model and H. L. A. Hart's Concept of Law, < https://journals.openedition.org/revus/2746> accessed on 17th May, 2021

Robert Cover (1986); The Violence and the Word; Yale Law Journal, p.1601-1629

Shruti (2014); Whether British Contemporary Society Is Socially Just? < https://www.tutorhunt.com/resource/10968/> accessed on 17th May, 2021

Journal

Dworkin, Hard Cases, 89 HARV. L. REv. 1057 (1975).