Abstract

Can just law be unjust? How, moreover, do these two compare with justice? These questions are discussed against the background of Kelsen’s 1953 monograph,‘Was ist Gerechtigkeit’ . Kelsen ends his observations with the sad remark that he has not given and cannot give an answer to this question: ‘Absolute justice is an irrational ideal.’What remains is a relativized theory of justice. The author points out that Kelsen is hindered by a language problem. The problem is that the German word ‘Gerechtigkeit’ can be read as covering a wide range of meanings. It covers the formal justice as it appears in the system. This justice is basically rational but can never be absolute. In Dutch one would use the word ‘rechtvaardigheid’. But the word ‘Gerechtigkeit’ – ‘gerechtigheid’ in Dutch – also covers the personal experience of the addressee of a legal decision. This experience, which is often felt in its negative form of unjust law, may very well be irrational. In its ultimate highly personal form it is beyond law and reason, and existential in nature. The author argues that the law should try to absorb the irrational elements of this experience and cannot in the long run ignore the ultimate existential experience