The judiciary, contrary to what people believe, doesn't seem to have the job of determining fairness.

Its job seems to be to interpret and judge whether a law was broken or not. Even that seems to have its limits which are established by law. It doesn't deal with concepts like who deserves what.

It seems like justice doesn't exist beyond laws and contracts. And what actually exists is obligations that are either binding or non-binding.

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    I don't understand what you are asking. Maybe we need to start with the fundamentals: Do you believe justice and fairness to be absolute? Do you recognize that what one person considers to be fair another person could consider unfair?
    – Roland
    Jan 25, 2023 at 6:18
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    "It seems like justice doesn't exist beyond laws and contracts." This seems to be more a philosophical question, although also ontopic for politics of course. If you ask me then the written laws are a compromise of what all the people regard as just and keeping the peace in a reproducible form. If there wouldn't be laws just ask yourself how we could ever agree on what justice would be. Surely the one and only justice doesn't exist. Your justice without laws would simply be anarchy (or the stronger wins). Jan 25, 2023 at 7:22
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    methinks this question belongs to Philosophy SE.
    – whoisit
    Jan 25, 2023 at 7:25
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    @whoisit Both, I think. It's a very good philosophical question but also with very practical implications on politics. After all politics needs some way to justify the existence of the judiciary and that typically is something like justice and keeping the peace (even for systems that are totally unjust). Here the practical angles could be answered, less so the philosophical issues. How just could a judiciary be for example. Jan 25, 2023 at 7:29
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    Nah, I had the same icky feeling about the Philosophy factor, but look at JamesK's answer re. the role of laws and judges vs the political will of the people (or the Dictator for that matter). Jan 25, 2023 at 7:31

10 Answers 10


The role of fairness is important in the court, but within the context of law.

It is not a judge's job to legislate. They can create legal precedent (here I speak in the context of Common Law systems). The task of legislation falls to Congress/Parliament and even if an act of Parliament is "unfair", it is not the role of a Judge to overrule.

It's Parliament's job to create fair laws, and the electorate's right to replace their representatives if they don't.

It is not the role of a Judge to say that a contract is fair or not. If two parties have agreed to something and then one party changes their mind and decides "it's unfair", it is not for a Judge to overturn the contract (except in the extreme case that the contract is so unfair that it was evidently coerced and not an agreement at all).

It is absolutely the role of the judge to ensure that access to law is fair. You can present your case to the court, you can have access to good advice and good representation. You understand the process and are treated with respect. It is important that the judge doesn't "prejudge" the case, i.e. they are prejudiced. This is called procedural fairness.

Being seen to be fair is less about the decisions that courts take and more about the way that they take them.

To illustrate by example: The Dangerous dogs act makes it illegal to exercise a Japanese tosa in a public place unless it is muzzled and on a lead. If you do take the muzzle off your tosa, you are guilty of an offence. You might claim that Parliament was wrong to pass this general rule (it's "unfair" because your tosa a nice dog). It is not the judge's job to decide that Parliament was wrong! It is the judge's job to allow you to present your case, but to decide on matters of law.

The rationale for this is that this law was created by Parliament, and so represents the decision of the representatives of the people. One person should not overrule democracy.

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    Good job answering what seemed a bit of an open-ended, over-philosophical Q. 2 remarks: I think a Civil Law system is substantially similar (unless the Common Law judge does decide to set a precedent, which can be expected to very rarely happen). And, if there is a Supreme Court type of setup, then with regards to the OP's Q, it will sometimes step in and decide that a law is discriminatory or otherwise "unfair". Again, very much an exception. Jan 25, 2023 at 7:05
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    Fairness does seem to be within a judges role if we're talking about contract law. Jan 25, 2023 at 15:51
  • I don't think this is true neccesarily. for example judicial activism exists and isn't it right to have a branch of government that isn't subject to irrational and knee jerk decision-making of masses when the issues are Jan 26, 2023 at 13:22
  • @WhyDenounce That's the purpose of a constitution and why judges might consider laws unconstitutional. But, other than that, who decides what is irrational/knee-jerk as opposed to just?
    – The Z
    Jan 26, 2023 at 16:08

Short answer: Yes, justice can exist independently of the law. But bear in mind that extrajudicial justice has been replaced by judicial justice for a reason.

Long answer: For the vast majority of human history, society has always been concerned with the idea of fairness, which by extension influences our understanding of what is "just".

If a person is wronged, what is the appropriate compensation? And who should adjudicate the compensation process? That has been the question for every society.

Originally, this process is governed by custom. Basically, society does not have a central government to adjudicate disputes, so people must operate by a common code of conduct. This usually takes the form of "honor system" where reputation is currency and tradition is the law. If you killed a person's goat, you have to offer your own goat or sell them your daughter, something like that. This is incredibly arbitrary and inconsistent depending on the region and context.

Society then evolved to a more centralized form of governance. This usually takes the form of monarchy where one person makes the law and everyone else follow the law. There is advantage to this system compared to the previous system, namely it is more consistent. You may dislike the King's command, but at least his command is written in words that can be understood and followed. More importantly it applies to vast regions which streamlines the judicial process within the realm's territory. However, it comes with all the disadvantage of autocracy.

The most recent version of judicial process is rule of law. The people elect representatives to make laws, and the judiciary (theoretically independent and impartial) applies the law regardless of the judge's personal opinion. This system is highly consistent compared to the "rule-by-custom" model from the ancient times, and more democratic than the "rule-by-decree" model from the monarchical times. The disadvantage is pretty clear to those who live in democracies, sometimes lawmakers make laws that are deeply unfair, but the beauty of democracy is laws can always be reformed through election.

In short, you are right that judges do not decide what is fair, because democratic societies have delegated that power to legislatures to make — ideally — fair and just laws.

I recommend this video by ContraPoint which basically explains the same thing but in much more entertaining way (I know her style seems unserious but it's actually very substantive).

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    doesn't a democratic system have the problem of only the majorities being at the center of deciding how minorities act (i.e blasphemy laws) how is this fixed ? Jan 25, 2023 at 9:38
  • @WhyDenounce That depends on the jurisdiction, but most democracies have a constitution which sits above statute law. Statute laws can be changed with simple majority like you described, while constitutional provisions can only be changed with unusually high hurdles such as supermajority / referendum. Minority rights are often enshrined in constitutional provisions. Jan 25, 2023 at 11:26
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    @WhyDenounce The problem you described applies almost exclusively to the UK, which doesn't have a codified constitution, and therefore there is nothing that sits above the statute law (even human right has to be codified by statute). On top of that, they have a two-party system (unlike other EU countries), which means the party that wins power has absolute power. This should, in theory, make it quite unstable, but their culture is deeply constrained by norms and traditions, so perhaps they are exceptions. Jan 25, 2023 at 11:33
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    @QuantumWalnut idk if it's necessarily a problem as many constitutions can also be bad law. USA's constitution says everyone can use guns (and for some coincidental reason has the highest gun deaths per capita by orders of magnitude); Germany has written capitalist property rights straight into its constitution (thus giving investors the right to extort everyone for shelter, while somehow also giving RWE the right to demolish existing villages for coal). Jan 25, 2023 at 18:21
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    I think calling it "rule of law" is misleading and problematic. The monarchy is also rule of law. The only difference is the source of the law, not the existence of it. Better to call it democratic or rule of representative democracy. That actually represents what it refers to rather than a biased term which assumes a democracy is inherently more correct in making laws.
    – The Z
    Jan 26, 2023 at 16:11

Yes, it can and must. The basic function of the judiciary is to determine fairness, but this function is hemmed in to greater or lesser extent[1] by codified (statute) law. The benefit that codification provides is predictability: it's valuable for people to know where they stand with regard to the law before taking an action, rather than be required to navigate the rocks and shoals of precedent and the application of principles to specific cases. When statute exists, the judiciary functions "in the interstices" — it rules in cases where there is no applicable law, or where the laws are ambiguous or contradictory, and in those cases judges look to justice to make a decision.

On a grander scale, the execution of the law can occasionally produce injustice, but the law is only legitimate to the extent that its purpose is justice: or at least that's the assertion of Thoreau, Gandhi, Adam Smith, the United States Declaration of Independence, and myself. Why do governments exist, if not to prevent their citizens from having injustice done on them? The principle of justice is why constitutions exist, and legislatures are circumscribed and subject to judicial review. The people who established those governments recognized that, some day, the 51% would vote to enact a law oppressing the 49% (or, more realistically, the 0.0001% who are the elected representatives of 51% of the 51%[2] would enact such a law) — and they came up with some shenanigans in the hope that justice wouldn't be foiled by mere democracy. The effectiveness of that tactic is questionable, and it's often been poisoned by circumstances, but the intent is fine.

[1]: Also, to greater and greater extent.

[2]: As Piet Hein has it in his Grooks: "those whose boast [is] to represent the most of most of most of most of the entire state — or most of it, at any rate."[3]

[3]: Yes, I choose that to be my one and only citation.


Institutions are means serving an end. Justice can be understood as the outcome of a justice system or as a moral category. The first is the work of an institution, the second its ultimate purpose.

You seem to ask if moral Justice can or should supersede institutional justice. Can a judge do justice if he rules in conflict with applicable law, in order to rule justly.

On one hand, there is the separation of power that allows a judge to oppose law that leads to unjust results. On the other hand, there is the concept of institutional rule that protects us from arbitrary abuse of power.

This is obviously a contradiction. If institutional rule was sufficient to ensure objectivity and just-ness, then there would be no need for a separation of power. If the separation of power was sufficient to ensure justice, then legislation would be meaningless.

The purpose of contradicting or competing structures is to slow down trends and to escalate conflicts. If the legislation is about to succumb to corruption or the law does not produce a sense of justice, then judges can oppose it and create a crisis allowing us to side with either party.

All that culminates in my answer: It depends. What we perceive as justice, somehow processed and digested through the filter of majorities and minority protections, is in the end what counts. All too often, "we" is not a homogeneous or consistent thing.

I find your question fascinating, because it touches the core of morality and values. We all have an intuitive understanding of what is right and just, more often even what is not. But it's incredibly hard to describe, codify and objectively decide what that actually is.


What is "the Law"?

First, it's true that there's nothing that says the law has to be fair or just. There are many instances in history where it wasn't. There are still many instances today in the world where it isn't. And no system of law is ever perfect.

I think for the purpose of this answer, the simplest way to define the law is that it's boundaries.

Boundaries of what is legal and what isn't. Boundaries of which punishments are acceptable and which aren't. Boundaries on the law itself, like what can't be made illegal, or what punishment can't be enacted. Boundaries of how to interpret and adjudicate the law.

Those boundaries are an expression of moral and societal values at some point in time. Opinions of what should be legal and how to punish the rest, what should be a right, what should be an obligation, etc, it's the role of politics to translate those into policies, and it's the role of the legislative to translate those policies into laws.

In a democratic system, the law (ideally) reflects the sum of all our opinions and values on justice and fairness, rather than the opinion of a few tyrants.

What is "Justice"?

There is no definitive answer to that. Justice, fairness, that's a matter of opinion and morals. It's subjective. The difficulty of life in society is that we all have our own subjective opinion of what's just and fair, and that opinion changes over time.

As a practical institution however, justice is mostly about punishment and reparation. It is to be given after the fact, after something unjust happened. The role of the judiciary in that context is to decide on guilt, liability, punishment, and/or reparation in specific, individual cases.

There's nothing that says justice has to be fair and just either. There are many instances in history where it wasn't. There are still many instances today in the world where it isn't. And no justice system is ever perfect.

But in a democratic system, justice (ideally) makes its decision based of facts, evidence and well-defined laws, aims to find the truth, and balances the interests of society as a whole with that of the individuals.

Can justice exist independently of the law?

Not desirably, no.

Lawmakers have the power to define what is fair in the absolute. What is absolutely too far and not far enough, what values we hold for certain and can't be denied, etc. But ideas of due process, fair trial, proportionate punishment, those are moral values that were baked into the law. Law without that sense of justice would just be oppression.

Adjudicators have the power to define what is fair in a given individual case. They are presented the facts, the evidence, and they have to make a decision that will impact the life of the accused, accuser, and possibly society as a whole. But they can only operate within the bounds defined by law. Justice without that sense of the law would just be arbitrary.


Justice is often understood as everyone receiving their deserved rights and fulfilling their deserved responsibilities.

But, what are actually true rights? It is all axiomatic.

Someone would claim: Freedom to live is a right.

Someone could ask: On what basis?

He would need to respond: It just is.

It is either that or appeal to God or religion. It was a right given by the Creator, and obviously He gets to give rights to His creation.

The right to life might be easier because most people seem to agree to it to an extent, but it gets messy as you get to more practical situations.

For example: Does a murderer retain his right to life or does he deserve execution? People will vehemently disagree with each other on the topic.

So, how should one run a society? People generally want justice. But, they all have slightly differing concepts of it. Whose concept should reign supreme?

Law is when a society decides to formalize its idea of justice based on some source.

There are different sources society used.

A common one is religion. They used religion in different ways but one of the ways is when there is a legal tradition of scholarship that uses scripture and other sources to determine what they believe God intended to be people's rights and responsibilities. This is something like what Islam uses.

Another common one is to use the monarchy. This itself has different concepts within it. Sometimes (especially later) the monarch makes a formal law which is binding, and other times he (also) arbitrarily judges any case in front of him without any formalized law. (Note: The existence of a monarchy in a country doesn't mean its law is sourced from the monarchy.)

Nowadays, most other concepts are rare; the most common one is an appeal to the people. They appealed to the people in different ways. The most common way is some form of representative democracy. People elect representatives that then vote on what the law should be formalized as.

The advantage of the first system according religious people should be obvious. God is the best decider of what is justice, so appealing to his revelation is best. The advantage of the third system according to secularists would be that law then matches more closely the more common view of justice in society according to people.

All of the above is obviously a large simplification.

Without law, it was just a free-for-all. People would do what they think is ok or not ok as long as they had the power and desire. The only thing that bound them was the risk of getting ostracized from society or violence from other people.

With law and its enforcement, society has a consistent concept of justice. The judicial system is simply a part of that society which decides how law applies to specific cases. Consistency is key. The main reason society has law is that it is a consistent estimation of justice.

So, think of justice as an ideal everyone has in their mind which often differs person to person. Think of law as a crude estimation of justice that society uses because they want some consistent and formalized system. The judiciary is just a group of people that apply that law.


Justice means getting fair rewards and penalties for one's actions. It is a purely theoretical infinite concept like truth, which is well understood but doesn't truly exist in our finite world.

Fairness, however, is one's personal judgement on the justice of a situation. Your and my idea of what justice means for a crime will differ. I may focus on her actions and prefer punishment/revenge, while you may consider intent and mitigating circumstances and aim for reform of the person. Similarly, two people may find an agreement fair enough to enter into which to most everyone else seems very unjust (payday loans comes to mind); in some cases, so unjust that the law steps in.

The law is (in theory) the net accumulation of the national opinions of fairness over time (since laws exist from a century ago).

Your statement:

The judiciary [..] doesn't have the job of determining fairness.

I agree. A judge's job is to compare a crime with existing law and pick the severity of this case from within a range of penalties. If the national sense of fairness has changed, the laws must be updated to reflect this.

Some 'activist judges' do what you are asking for - hand out what they consider a more 'fair' sentence or make a more 'moral' ruling on what the law should say. But they are usurping the role of the legislation. Laws represent, in a democracy, the rules which the majority of citizens have agreed to live by.


The idea of justice is clearly beyond the law, but the implementation is the imperfect job of the law

The question confuses the implementation of justice with the idea of justice. The fact that the question can even be asked, shows that the concept of what ideal justice is entirely independent of the actual practical processes of implementing it.

The role of the judiciary and the law is usually to implement existing legal rules, the purpose of which is to do a good job of delivering and maintaining "just" outcomes. But laws and legal processes are imperfect.

Not having a defined process and leaving the delivery of justice to others (which often means "the mob" or the king) has not, historically, delivered results as just as the decisions in a well defined and controlled legal system. That's why most societies have the law and judges.

A major breakthrough that has influenced many modern systems was Magna Carta (there is a copy held under the US Congress building if you think this only matters in England). Magna Carta's huge breakthrough was to break the arbitrary power of a king to do whatever he wanted (which was often very far from anything just). The king was made subject to the law and no longer allowed to do whatever he wanted, which was often unjust.

Magna Carta established a mechanism for moving the rules in the direction of justice and away from arbitrariness.

But many laws are clearly unjust (demonstrating that our concepts of justice are independent of the rules but that the practical system of administering justice is flawed). Few now think that slavery is anything other than grossly unjust, but it was once legal in many places.

So nobody should claim the law is perfect. It isn't. But, at least in democratic systems, the people can campaign against laws which reinforce unjust ideas. But just because the law is often unjust does not make the alternative (anarchy or mob rule) more likely to deliver more just outcomes.

Of course both laws and judges need corrective mechanisms when they go wrong. In the US the Supreme Court can invalidate laws if they breach constitutional rules agreed long ago (of course that is also imperfect, but does constrain the government from some unjust things they might want to do and corrects lower judges' mistakes).

When the rules are wrong, campaign against them. Don't blame the legal system or the judges. They are imperfect interpreters of often dodgy law.


Justice cannot exist, within or outside of the law. It's an ideal to strive for, but no law or moral code has every truly achieved it (and we probably never will)


This question partially seems to be asking about the Judiciary, rather than the more vague concept of "justice."

However, considering "Can Justice exist independently of the Law?" — Yes, because laws and the societies that create and enforce them can be structured without justice.

One of the main examples commonly cited is "justice only for the rich." Equal Justice Under Law has several examples related to ways the American legal system is structured that tend to disproportionately favor those who already possess wealth. Wealthy can pay bail, keep their job, live at home pre-trial, and afford expensive lawyers. Poor cannot pay bail, lose their jobs, get evicted, are unable to care for dependents, and must rely on court appointed representation (where skilled lawyers are often poached from with tempting pay offers).

Another example from current events, are the issues surrounding classified documents. This could possibly be termed "justice only for the influential." Generally, in these types of cases, punishments go down with rank. From VOA News Summary of Former Classified Doc Cases, Weldon Marshall had a collection of documents with no evidence of providing them to anybody, and received 3.5 yrs of prison + 1 yr supervised release. Petraeus shared a binder full of classified docs with his mistress and got two yrs probation to avoid "an embarrassing trial." Note: In the US military at least, commissioned officers cannot receive a "Dishonorable Discharge", only enlisted. The article notes its "supposed" to be equivalent, however, it's often not, as these often become administrative dismissal or "voluntary" retirement for the "good of the service."

A third category could be termed "justice only for the beautiful." Several studies have looked at arrest, incarceration, and sentencing results relative to beauty perceptions and have found Ugly people are more likely to be directed toward a life of crime and attractive persons were less likely to be arrested and convicted than less attractive persons with a much stronger correlation toward female beauty.

Another just found in the news is "justice only for the lawyers." Because of the sanctity of the attorney-client relationship, lawyers cannot draft or enter into a noncompete agreement that “restricts the right of a lawyer to practice after termination” while most other professions have to deal with them. Asked why this might be, the firm Epstein Becker Green responded, it’s because “lawyers make the rules.” Amusingly, in an extreme example, Jimmy Johns used to restrict prior workers from future work at any similar establishment within a two-mile radius of a Jimmy John’s location

Regulatory Capture or "industry using the state for its purposes" is another example of conditions where laws and justice are not correlated because the laws are effectively written to the advantage of a small, motivated, advantaged minority. Revolving Door Regulation also falls into this same category.

Finally, patents and copyright infringement, as well as the fines associated with breaking these laws are another example. Wealthy, influential groups can afford the literature examinations, lawyer fees, litigation costs, and patent fortress maintenance costs, and often the fines associated with breaking these laws simply represent "the cost of doing business" to sufficiently large corporations. Poor actors and groups, lack the resources to find possible infringements, pay for lawyers or litigation, pay to maintain patents, and a single court case will often sue them out of business.

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