ON THE SENSE OF JUSTICE: SPOUDAIOS VS. LEGAL FORMALISTS

Abstract

The article deals with socio-philosophical comprehension of the sense of justice in the area of judicial decision-making. The author suggests the notion of the metaphysical ‘reasonable man’. It concerns Aristotle’s conception of spoudaios (σπουδα ῖος) . It is a dialectical metamorphosis of the supreme subjectivity turned objective. But then, how may this subjectivity not be an arbitrariness repulsive to the notion of justice? The answer is being sought in the theory of argumentation. It is prima facie obvious that what lawyers do is ‘reasoning’. In the adversary process the lawyers for plaintiff ‘reason’, the lawyers for the defence also ‘reason’ and in the end the judges, too –, ‘reason’. The life of the law has not been logic; it has been experience (Justice Holmes). What did Justice Holmes have in mind? When he speaks of experience, it is not the ‘subjective’ experience of and individual legal reasoner. What he has in mind is the ‘story of a nation’. The issue can be further examined in the light of Lawrence Kohlberg’s theory who devised a moral growth scale based on the autonomy of the personality.