The limits of formal justice

Abstract

The basic idea of Agnes Heller's Beyond Justice (New York, Basil Blackwell, 1987) is this: The only values which people can agree on in large-scale modern societies are those of life and freedom. To begin to realize their freedom people must constantly be able to challenge all forms of domination especially that which proceeds from the authority of externally imposed norms and rules. Yet, modern societies, like all societies, find norms and rules especially useful for survival; they help its denizens to pursue the value of life. Hence, people obey norms and rules if only because to stay alive they must. Otherwise, they try every way they can to strip the norms and rules of authority. This they must do in order to pursue their freedom, for if any set of norms and rules were to achieve total all encompassing authority, then people would cease to be free. People whose freedom requires the constant de validation of norms and rules must suppress all but one idea of justice, the idea of formal justice. Like all important works on justice today, Heller's begins with Chaim Perelman's invention of formal justice. Formal justice may be defined as the correct application of norms and rules to those to whom the norms and rules are supposed to apply. Formal justice is thus the most general formulation of the principle of equality, where "equals" are defined as those whom a norm or rule puts in a single category. Formal justice is the only idea of justice which is consist? ent with the need of people today constantly to invalidate norms and rules in order to achieve and maintain their freedom. However, formal justice is insufficient for accomplishing the pro? ject of freedom, if not the project of survival, for the following rea? sons: First, people whose value is freedom wish to change norms and rules. Formal justice supports the correct application of norms and rules, but not the constant change of those norms and rules?i.e., the dynamic justice which free people require. Second, formal justice treats people strictly as members of categories. It does not deal with