The formalist approach to justice was traditionally justified by the need to discover and maintain rules and principles that could be applied impersonally, without fear or favour, on the basis of the principle of equality before the law. 22 For formalists, it was believed that to develop a just legal system the subjection of all to the 'rule of law' as well as the reluctance to make any exceptions would be indispensable. This was felt to express the inner meaning of justice, that the same rules be applied to everyone.
It was this idea of formalised justice that generated scepticism from legal realists who had a pragmatic attitude to justice as they believed it to be an unattainable idealisation of law. 23 Realists believed that the legal process cannot guarantee that just solutions will be delivered for every problem due to the human fallibility of judges and juries, as well as the indeterminacies that are present in any real legal system. 24 What realists were trying to expose and dissolve was the illusion that a sophisticated modern legal system, perfectly formalised and idealised, is the perfect vehicle for legal justice.
25 Jerome Frank, a legal realist and fact skeptic, believed that if justice is to be real, it has to be individualised to the circumstances of each concrete case. He believed that the superior aspect of justice is found at the very heart of the law because, as against Aristotle, it would be 'wiser to go to the other extreme and to say that the law is at its best when the judges are wisely and consciously exercising their discretion, their power to individualise cases'. 26
Jacques Derrida, the so-called 'father of deconstruction' also supported this view. He believed that justice 'is not simply outside the law but is something which transcends the law'. 27 Derrida suggests that in order for law to be law it must speak in the name of justice. 28 He argued that justice is a process that needs to consider conditions, context and strategy. Therefore, there are no rules to govern a 'just response'. Derrida disputed that a just response needs to be invested each time and at each moment within the singularity of a situation.
29 Derrida suggested that '[j]ustice is the inexpressible horizon beyond law – a phenomenon which is irresistible to, and yet immune from, reduction into a set of judicial computations'. 30 For Derrida, justice is a deconstructive attitude to law: it is the opportunity to reconstruct and reinvent the law. 31 He asserts that each case is unique, that each decision is different and requires an absolutely unique interpretation, which no existing coded rule can or ought to guarantee absolutely.
32 Judges need to take into consideration the constantly changing demands of society to ensure that the law adheres to the current political and social climate in order to achieve justice. From a modern perspective it could be seen that Derrida's interpretation of law and justice is certainly evident in the progression of our laws in Australia. Laws need to keep pace with the constantly evolving society. If judges were unable to influence the law, the law is in danger of becoming an archaic, stagnant system stuck in the dark ages.
Another approach to justice is outlined in the utilitarian movement by more modern academics such as Jeremy Bentham and John Stuart Mill. They believe that a law is just if it benefits the majority of people even if it results in injustice for the minority. Proponents do not only have to look at the law, but also take into consideration the consequence of the law to see if the outcome is just towards society for the greatest number of people. In a modern day context, contemporary policies and legislation frequently consider community welfare and the 'common good', which is a direct influence of utilitarian concerns.
33 Critics of utilitarianism argue that the theory may be used as a justification for unethical action. 34 An example of this would be the detainment of an innocent person for a suspected terrorist plot in an effort to calm public fears of future terrorist activity and restoring confidence in law enforcement. 35 This would be seen as an action that would maximise the overall public 'good', and one that can be justified on utilitarian grounds. However, few would argue that such an action is ethical. In this way, utilitarianism may be able to ignore issues of justice and individual rights.