What if justice, as we venerate it in liberal-democratic orders, is merely a sophisticated veneer for entrenched power? What if its moral sublimity is but the normative consequence of institutional inertia and discursive manipulation? And what if the social normativity of justice—ostensibly impartial, reflexively egalitarian—is in fact the hegemonic consensus of those privileged enough to dictate the content of what is considered ‘just’? In an era where the juridical is rapidly conflating with the ideological, these questions demand not just attention, but interrogation. The sacrosanct nature of justice must be disturbed—unsettled from its constitutional altar and examined in its full complicity with social domination.
Justice as a social norm is less a metaphysical ideal than a sedimented artefact of juridico-cultural production. It is neither transcendental nor teleological; it is constructed, contingent, and most disturbingly, legitimised through reiteration. As Michel Foucault incisively warned, “Power produces knowledge… power and knowledge directly imply one another” (Discipline and Punish, p. 27). Thus, the law does not merely reflect justice—it manufactures its legitimacy through discursive saturation. Legal norms masquerading as objective articulations of justice are often entangled with epistemes of control. The very grammar of legality presupposes a system of exclusions—who speaks, who is heard, who is protected, and who is punished.
This normative entanglement is nowhere more evident than in landmark judicial pronouncements that, while clothed in the language of neutrality, betray their embeddedness in prevailing moral orders. Consider Dred Scott v. Sandford (1857), where the US Supreme Court held that African Americans “had no rights which the white man was bound to respect.” The language here was not simply juridical—it was normative, defining the very contours of personhood and justice within a white supremacist paradigm. Although now anathematised, it exemplifies the law’s complicity in reinforcing prevailing social norms under the guise of formal reasoning.
Similarly, in the House of Lords decision of R v. Brown [1993] 2 All ER 75, where consensual sadomasochistic acts between adult men were criminalised, Lord Templeman asserted, “Society is entitled and bound to protect itself against a cult of violence.” Here, the invocation of ‘society’ and its normative interests becomes the threshold for delimiting justice—suggesting that justice is not merely what is fair, but what is culturally tolerable. The decision obfuscated the victims of harm and instead centred the normative revulsion of the majority, using ‘justice’ to silence and pathologise subaltern sexual identities.
Yet, we are told—repeatedly and confidently—that justice is the bedrock of democracy, the North Star of constitutionalism. Rawls posited that “Justice is the first virtue of social institutions, as truth is of systems of thought” (A Theory of Justice, p. 3). But the moral universalism of Rawlsian liberalism—despite its elegance—falters when confronted with pluralistic societies in which norms are contested, contradictory, and often colonial in origin. Rawls’s hypothetical veil of ignorance seeks to purge justice of positional bias, but the epistemic arrogance of such abstraction assumes a world where individuals can suspend their histories, their traumas, and their identities.
In stark contrast, thinkers like Alasdair MacIntyre and Michael Sandel have argued that justice cannot be extricated from its social context. Sandel writes, “We cannot regard ourselves as independent from our ends because we are encumbered selves” (Liberalism and the Limits of Justice, p. 150). Justice, in this communitarian view, is not the outcome of abstract deliberation but the expression of shared values and traditions—however flawed or exclusionary those might be. Thus, what we label as ‘just’ may often be nothing more than a collective habituation to moral mediocrity.
In contemporary jurisprudence, this moral mediocrity is operationalised through legal positivism, which seeks to separate law from morality, insisting that norms are valid so long as they meet procedural criteria. H.L.A. Hart, the doyen of this school, famously declared, “The rule of recognition is the master rule” (The Concept of Law, 1961). And yet, such proceduralism can ossify injustice when rules are unjust ab initio. The apartheid regime in South Africa was ‘legal’ under positivist definitions; so too were anti-suffrage laws, sodomy statutes, and the systemic erasure of Indigenous sovereignty.
Against such positivist complacency, the natural law tradition maintains that justice must reflect a higher moral order. Aquinas argued, “An unjust law is a human law that is not rooted in eternal law and natural law” (Summa Theologiae, I-II, Q. 95, Art. 2). But herein lies another problem: whose morality? Which metaphysics? The invocation of universals often collapses into theological or Eurocentric hegemony. Thus, both positivism and natural law fail in different ways—one too procedural, the other too prescriptive.
Modern theorists like Nancy Fraser offer a more expansive view. “Justice today requires both redistribution and recognition” (Justice Interruptus, p. 11), she asserts, insisting that socio-economic justice cannot be divorced from the struggle for cultural visibility. Likewise, Amartya Sen’s capabilities approach redefines justice as the enhancement of human freedom: “Justice has to take the form of enhancing human capabilities to lead the kind of lives they have reason to value” (Development as Freedom, p. 18). These approaches demand that justice be evaluated not solely by institutional legitimacy or public norms but by substantive outcomes.
This is a radical departure from the prevailing normativity of justice in liberal states, where formal equality often suffices to conceal substantive inequality. The platitude that “all are equal before the law” becomes a juridical sleight of hand—obscuring how laws may operate with differential intensity across race, class, gender, and geography. As Lord Diplock warned in Breen v. Amalgamated Engineering Union [1971] 2 QB 175, the law must resist being “an instrument of injustice through procedural convenience.”
The final irony is that in seeking to universalise justice, we may have diluted its radical potential. As legal systems become more bureaucratised, justice becomes routinised—a technocratic endeavour rather than a moral aspiration. It ceases to be a dialectical process and becomes a performative ritual of adjudication. It is no longer a pursuit of rightness but a simulation of fairness, where process is fetishised over purpose, and legitimacy is derived not from moral rectitude but from procedural orthodoxy.
The bottom line, justice as a social norm is both a necessary fiction and a dangerous ideology. Necessary, because no polity can function without shared expectations of fairness; dangerous, because these expectations are always susceptible to capture by dominant interests. The time has come to stop asking what is legal and start asking whose norms are we codifying, and at what cost? Until then, our justice will remain—at best—a well-spoken lie, and at worst, a constitutional hallucination.
