David Dyzenhaus: "The Legal Experience of Injustice"

Asbtract: This paper enquires into consistency, not as a matter of abstract logic, but of the logic of the legal experience of those in the ‘jural community’--the community of persons subject to the operation of a system of law. That experience is in part a normative experience--an encounter of a legal subject with authority--so not with what HLA Hart famously called ‘the gunman situation writ large’, the image in John Austin of the sovereign as an ‘uncommanded commander’ whose commands backed by sanctions instill a habit of obedience in its subjects.  It is an encounter with the state’s authority as well as with its power to deploy sanctions.

I examine here how operative systems of law make possible and even legitimate legalized injustice. My focus is not on Shklar’s ‘best of known states’, but on some prominent examples
of legalized injustice in her work and in particular on the role of human rights lawyers in combatting the injustice. I argue that certain kinds of injustice create tensions within the systems which, if not resolved legally, by using the system’s own procedural and substantive resources, change the system from one kind of legal order to another, or to a system of legally unmediated, prerogative power.