Formal justice as a common language
pp. 1-17
in: Arend Soeteman (ed), Pluralism and law, Berlin, Springer, 2001Abstract
Although the requirements "to give everyone his/her due" and "to treat like cases alike" are generally seen as formal principles of law, there has been a persistent debate among those who regard these principles as merely technical requirements (Kelsen, Hart) and those who regard them as expressions of moral ends (Radbruch, Fuller). In this contribution it is argued that this current dichotomy between technical means and moral ends obscures the true character and function of legal principles. Rather, the formal principles of justice and equality should be seen as heuristic and justificatory guidelines which help us to perceive and locate problems and to justify and criticise possible solutions. In order to fulfill these functions properly, however, it is vital that they remain open-ended and are not identified with specific moral end-values. Only then they can act as common points of reference by means of which communication in a pluralist society is furthered.