Should justice be a matter of interpreting law or a matter of rewarding desert?

We seem to have a problem with justice. Just recently, a Sri Lankan
robber, sentenced to 15 months, was spared deportation at the end of his sentence, on the grounds that he had a girlfriend in this country, and that deportation would deprive him of his right to a private and family life, which is a right guaranteed by Article 8 of the European Convention of Human Rights.

This recalls a similar but more serious case where a hit and run driver was also spared deportation on the grounds that he had a child in this country. The same legislation has been used to keep the murderer of the Catholic Headmaster Philip Lawrence in the United Kingdom, something that led the then Leader of the Opposition to call for the scrapping of the Human Rights legislation back in 2007.

There are some obvious problems with this sort of human rights legislation. One aspect is historical: to what extent, if any, does human rights legislation form part of the English legal tradition? England does have a Bill of Rights, but we have no written constitution.

Again, on what basis do universal human rights rest? This question has been put by the great Alasdair MacIntyre, and has never, to my knowledge, been satisfactorily answered. How was it, MacIntyre asks, that no one ever really spoke about universal human rights before the Enlightenment? Do our judges who make these extraordinary decisions seriously wish to claim that the right to a family life is some sort of inalienable, intrinsic, or even God-given, human right, with which the state has no authority to interfere?

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But what is most clear about these cases is the way lawyers have used legal procedure effectively to prevent justice being done. A piece of legislation which may never have been intended for use in this way is providing an escape hatch for criminals. These men ought to be deported. As foreigners, they are in Britain as a privilege not of right; if the state wishes to deport them, then the state ought to be free to do so. If you come into my house, with my permission, I am free to revoke that permission as and when I please; no one would dream of criticising my decision to throw you out if your behaviour was not to my liking.

As for the paltry excuse of a right to a family life: do the inmates of our prisons have a right to a family life? Of course they do! But they have temporarily lost it for the duration of their sentence. If the right to a family life were inalienable and inviolable, then no one would ever be imprisoned.

In the end, this is really a question of which model of justice you wish to use – a question tackled in MacIntyre’s excellent book Whose Justice? Which Rationality?

Should justice be a matter of interpreting the law, a purely neutral procedure? Or should justice be a matter of rewarding desert, giving to each his or her own, giving to each what he or she deserves? If our judges believed in justice as desert, these criminals would have been sent home long ago, and invited to pursue family life in the countries of their birth, on the simple grounds that their anti-social behaviour means that they do not deserve to live here. But – and here is the hitch for our secularised and value-light or even value-free society – justice as desert depends on having some shared vision of what good human behaviour should be.

This difference between justice as the result of some neutral procedure, where the procedure itself will somehow guarantee justice, and justice as the rewarding of desert, what the philosopher John Rawls calls the difference between the right and the good, is hugely important. Rawls himself believed that the right and the good would coincide, but only if the procedure were the correct one. The current procedure in interpreting the Human Rights Act, which produces such wrong results, clearly needs to be changed.

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