THE CONCEPT OF LAW AND JUSTICE

Ilir QABRATI
University “Ukshin Hoti” Prizren, Faculty of law. ilirqabrati1@outlook.de

Article history: Abstrac t

Submission 07 August 2020
From the views and changes that have followed the dynamism of our society, undoubtedly, law and
Revision 12 September 2020
Revision 25 September 2020 justice have played a crucial role as a very abstract term that has been consumed almost from the
Accepted 30 November 2020 first beginnings of human society to our modern days. Beyond the events and circumstances that
Available online 31 December 2020
societies in the past have had and organized by defining and choosing the way of life, and often times

Keywords: the right has been personalized by a certain group of people, or by a military division that has given
Law, rights and has created justice, in certain interests and for personal and charismatic purposes it has
Justice, been denied a certain part of society, and has often been deformed in scandalous ways by reflecting,
State, on the fact that the giver of this right has often been pointed out to be the man, but this convulsion
Society and Norms. in no case has lasted long, and often this theory has remained unrealized, reflecting that right is
something natural and that the individual gains at the moment of birth and enjoys it to death, this
divergence and complexity of the way of perceiving the law has often resulted in wars and the
acquisition of this vital right.

Through this paper we will draw philosophical and legal paradigms, analyzing from a retrospective
way of the application of law and the applicability of justice, as an important mechanism of
regulation of social relations. Law and justice have a common path of development, one by regulating
the way of life of the people, that is, by issuing norms and the other by giving justice to the relative
complexity and cohesion of interpersonal relations.

1. Introduction in terms of its observance. And it is precisely these rights that

The topic chosen for analysis, which is entitled the concept of law maintain our balance in a society.

and justice, basically contains an extension of a concept which

addresses both from a philosophical and legal point of view, and 2. On the Law
above all expresses the abstract concept that our consciousness When we talk about law, we must return to the vital origin of its
judges in relation to a right, or share a justice if not from an history, the philosophical point of view of law as the basis of
institution, then anyway from our private life, to the separation of philosophical and scientific articulation where it is rightly called
justice from our institutions. that the subject of philosophy is law itself, therefore the study of
law has never been easy, and in particular Kant's view when
This topic from the philosophical treatment in its background, has synchronizing the idea of disregarding jurists, and between the
drawn deep thoughts by analyzing those of philosophers and lines he emphasizes that law is still being sought, by philosophers,
ideators who have dealt with this issue from the past to the present jurists, and the individual.
day, and at the same time I have drawn paradigms of a personal
judgment regarding justice. Regarding the law from the philosophical point of view, and using
the a priori method I am involved in some names starting from
As far as the legal side is concerned, we have dealt with a part of the one which is evident "the right", through this name we
the legal structure which this right finds its basis only in written understand the norms that are sanctioned by the state or with a
leagues, and which for each of the citizens it becomes mandatory formal-legal definition, we can understand: That norms are a set

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of rules, that society has regulated its behavior, through these legal norm stems from the fact that it is protected by the state
rules, and for violators of these norms sanctions are applied, or apparatus. This fact also distinguishes it from other social norms,
the democratic and legitimate apparatus of the state, thus the respectively their implementation is not provided by the state.
applicability of legal norms (Osmani, 2004). Among other So in the formal-legal sense this different norm is also called law.
things, we have the opinion of the famous philosopher A. Law is a lower legal act than the constitution, which regulates a
KAUFMAN, where according to him the right has its existence, general sphere of relations in a given society.
it is positive because it is created through the law, it also has its
own brand or content, it has justice, regularization (Lukiq, 2008). Regardless of how the legal norm is expressed (law, bylaws,
It is an opportunity of logical understanding when human custom), it consists of three elements or constituent parts:
consciousness attributes to the creation of a norm with rule Hypothesis, Disposition, and Sanction.
content when it modifies the relations in a certain society, in
different forms as for each case with special satributes gives a The hypothesis is that part of the norm that provides: the
certain solution. circumstances in which the legal norm operates. It is a
precondition, without the existence of which the legal norm is not
We also find another concept on law in the great philosopher H. implemented, does not apply.
Kelzen, where he says that positive law is the right itself, those
legal norms, which are quite concretized, and actualized can be The disposition is that part of the norm that provides for the
accurately recognized and applied. So it is about norms that are content of the rule of conduct itself. The sanction provides for a
understandable, with clear meaning, in determining human restrictive measure, in case of non-implementation of the norm.
behaviors (Kryeziu, 2011). (Gurakuqi, 2009).

Contrary to these concepts, which are confronted from different 4. The Court
points of view and currents of thought, where we find almost a The court is a governmental institution, with the authority to
greater part of the thoughts that match each other considering the adjudicate legal disputes between the parties and to administer
right as a norm itself, but a facticist theorist of South America, justice in matters pursued formally and those with individual
Carlos Kosiji, develops the second realistic factual option, and initiation. Courts treat all persons equally and no one can be
according to him, law is not the norm, but really the behavior of discriminated against on the basis of race, color, sex, language,
people and this not only of official persons, and other bodies but religion, political or other opinion, national or social origin,
is of all ordinary subjects of law. He presents this type of distinct connection with any community, property, economic, social
phenomena by proclaiming the following phenomena: IDEAL, status, sexual orientation, birth, disability or any other personal
NATURAL, CULTURAL and METAPHYSICAL. status (Law No. 06 / L-054 on the courts). This connection
between the law and the court leads us to understand that initially
The law-the right Kaufman calls law, and according to this human actions are provided by legal norms and they are
concept he says that people should debate about how fair it is, sanctioned by law, before they go to trial, this also means a
whether it is a good, fair law, and try to give the best in the legitimate relationship of state authority, legitimizing his actions
perfection of the law. To understand law in a realistic in restricting human freedom if it conflicts with existing laws or
relationship, there is another example, typical when law is norms.
attributed to human consciousness:

5. The Case
Law + court + case = solution
All those actions that violate the good of a person or the life of
people in a certain society, and face legal norms, become the
3. The Law object of sanctions that the state has imposed on those who violate
So through the right (law), which has its own existence, in the these legal rules, based on the fact these actions are sanctioned by
strict sense that law is a normative phenomenon, while norm is a the state and as such, are also provided by law. So, the case is an
mandatory social rule for the behavior of people brought (or) interaction of the interpersonal subjectivity itself that affects, an
sanctioned by the state, respectively e protected by the state action in society which action is illegal, or hits a legal good, and
apparatus. It means that the social rule for the behavior of people exactly the creation of a case, affects the Law + court when an
can also be created by the state, when it is brought by the action has caused the case or has violating the norms or laws in
competent state body, or the state to sanction certain social norm force, and fulfilling the responsibilities, will be ascertained with
(moral, customary) that exists. The power and importance of the

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the development of the procedures exercised by the institutions for the influence of human rights, it affects many directions, not
and the norms in force of the state. only disciplining and socializing it, subjecting it to society, but
also seeking to adapt to it. On the other hand we have the state
6. The Solution that represents and constrains it, while on the other hand we have

The settlement is an effective action and result, which comes as a free society, based on its own consciousness. Conflicts of interest,

result of an activity related by the court, for a certain issue that is and the separation of man from society, have been necessary to

now subject to review in the procedure, of a human action and represent the state.

ends with a formal legal action, written decision thing which

fulfills the formula listed above: Law + court + case = solution. So far we have discussed the positive law and its relationship with

Law is driven by two main factors from the real world: the one man, now we will see the right in the objective relationship, we

(anthropological) factor and the social (sociological) factor. One encounter the first thoughts about the objective law since ancient

is a free factor and a creative being who, by his actions, limits or Greece, this phenomenon has been developed by sophists started

impairs the actions of others. Being free in his actions, he decides by Hippie, Antifooni, they have claimed that the violation of

according to his own motives what he will do, the motivation does natural law is harmful, for the offender himself who cannot avoid

not deny his freedom, but only puts him into action. the bad consequence, while the violator of the positive right can
succeed in avoiding the self-created consequence. Natural law has

Human freedom is a motivating condition for the existence of its options, starting from the opinion that natural law is a kind of

social norms, and even law for two reasons: First, man without law of experience, or the right of God, because it is the true

norms would not know how to behave, the non-existence of these creator of nature, whether of man or human society. The most

norms would reflect another reality in our society. Second, the important feature of natural law is that it is rather the right of

free man would not take proper care of the general social interest, experience, (which means an object which has never been subject

and would harm it with his own conduct, so that all social norms to the process of experience, such as God). From a political and

and even these legal ones are a kind of instruction on how man legal point of view, it is the result of the struggle for positive law,

should act but at the same time, it is also a means of society to put as a political tool in the struggle for change in political relations

pressure on me to act in the general interest (Lukiq, f. 76). Life in a society, and that the content of law varies, depending on the

practices and the very history of legal norms have often violated real social circumstances they use as a tool in political warfare

the will of a majority, but in most cases this violation of free will (Lukiq, 2008a).

has been done with deliberate reasons to protect the basic and
elementary values of human existence such as: internment from We find views on natural law in Christian times in Toma

the state, punishment of family members, imprisonment in the Akvinsky, in his work "Suma of Theology", the right in the

insane asylum, or quarantine for infectious diseases. In these most narrow sense, connects with man as one of the means by which

flagrant cases of the disappearance of free will, you can no longer God influences man to do good deeds. According to T. Akvinsky,

hold the human being accountable if it can be called that. Unlike there are four kinds of law: Eternal Law, the Law of Nature, the

Rousseau, Milli does not give much weight to social Human Law, and the Laws of God (Lukiq, 2008b).

circumstances. The quality of free will in him means that "the

will, unlike other phenomena, is not largely determined by the Eternal law is the law according to which the whole universe is

past, but dictates itself " (Ruso, 1998). governed, which only God knows, as the creator of everything in
the world, because with the creation of the world he has also

Since we have managed to conceive of freedom and will as one created its laws.

of the essential elements of the norm, now we cannot avoid the

ethical element which is reflected in almost every part of our The law of nature is the participation of the eternal law of mind-

lives, this expresses a way of socio-cultural awareness, which a reason, this law according to T. Akvinsky (1938) can be

society has for norms. To come to the notion of ethics, the understood in two ways: either in the subject who measures it,

prominent and lavish representative of this powerful current is and if the subject is regulated and proportioned, on the basis of

Spinoza, who defines ethics as: A mental, and spiritual, individual that who participates in the rule of regulation or measure.

and common exercise, and as such it cannot “read” but only to

live. (Spinoza, 2015). This would affect a relationship between According to T. Avinsky (1938), human law derives from natural

norm and consciousness, social where the observance of legal law, if it is contrary to it, it is not a law, only a shadow of the law,

norms determines the level of social education, so the higher the an evil law, the law can be distinguished from the natural law by

human awareness, the lower is the violation of legal norms. As

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two natures: first, the conclusions from its own principles, even 7. The Continuity of Law and Justice
as the closest definition of general notions. Right and justice, in everyday life each of us and that with full
As well as the law of God, which is necessary because man has mouth expresses a good, righteous man, that justice is in the soul,
to fulfill in one way his supernatural purpose, the other world, the these are stereotyped satributes, which every individual thinks
fulfillment of which is done by law, because man errs in his from the aspect of consciousness. However, taking into account
attitudes, so he needs strong support in the law of God (Lukiq, the complexity of the issue, jurists and most people from the
2008). ordinary world consider it a collection of norms that are
sanctioned by the state through the democratic mechanism, the
All these laws in the past have been powerful tools that have law has its own existence and is positive, because it is created
regulated the way of life in most of the countries where the church through law, it also has its own brand, applying all these rights
has been an institution or a state in terms of the applicability of establishes justice or regularization in a given society. Law and
customary and written law. As for the conception of law by the justice live in a cohesion between each other, creating
Romans, they have made many definitions of law, one of the opportunities and another justice at a certain time. The law itself
philosophers Celsions defines right, "ars boni et aequi" (as the art is what the authorities do in case of disagreement, and through
of good and law), so as can be seen that in the first period of its this right it provides what the court will do in case of resolving a
development, it had a religious character because it has been certain dispute.
interpreted by ecclesiastical clergy.

According to Socrates, it is necessary to discover the essence of

The Romans used the term "ius" to describe the totality of legal justice and injustice, and at the same time to clarify what is the
norms that applied to state-sanctioned social regulation. “Ius” source of justice and injustice, and from this fact must be started
therefore applied Roman law, in the objective sense as a system and sought, the perfect paradigm or model, which includes states
of norms, which regulated various human behaviors, while in the and people, in to the extent that they are right, it is not important
subjective sense, it consisted of two authorizations, or that perfection be fully realized. It would be crucial to have
opportunities for the subject of law: something perfect, to measure real states, and people (Malnes &
Midgaard, 2007).
 First, each entity personally performs certain actions
to meet its interests in accordance with legal norms. Law is the primary norm that determines sanctions, which is
 The second is to ask the obligated subjects to perform created by human consciousness or we can call it a positive right.
or not to perform a certain action. To go deeper into the subjective aspect, it is that the subjective
 Objective law is a necessary condition for subjective right is a concrete right, which belongs to a certain person, as
law, without which the latter cannot be applied opposed to the objective right where, as we have already
(Kryeziu, 2017) . mentioned, it is a set of norms for the regulation of social
relations, the implementation of which is provided through the
In addition to the term right to the Romans, the term “leges” or implementation of the sanction. From all the above, the state has
law was used, which meant laws and was distinguished from law, set norms that regulate how we should behave in society,
as it constituted a separate law, throughout the justice system. restricting us and allowing us a right that is forbidden to another
Also in the first period of development, the main role was played and allowed to us. As a right guaranteed by a positive right for
by legal rules of a religious nature, we should also mention the every individual is the right to life, the right to property, and at
customs, which were unwritten rules that were gradually born in the same time a justice is created that implies the will of the
society generation after generation, in a relatively long time, and people, that everyone should be given what belongs to them.
since cases of non-compliance with them caused social sanctions Natural law has a different approach to positive law, which we
(Kryeziu, 2017). can call ideal, which is found in human nature as a rational being,
it is a set of rules, which nature dictates to human reason.
Law represents its existence from the very beginning of social
organization, achieving its moderation and advancement since the Violation of natural law is detrimental to the offender himself,
twentieth century VII BC at that time the Roman state from a city who cannot avoid the consequences of evil, and in positive law
of little importance, passed into a state, then into a very great he can succeed in avoiding the consequences. So, are we able to
persecution, creating and bringing about a revolution in terms of accept the basic principles of justice, according to Ulpian, by
reform and the creation of a vital foundation for the system which defining justice in three main pillars: to live with honor, not to
today operates in the world, thanks to the Roman state. harm the other, and to get what belongs to us? It is precisely these

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virtues that are part of a high interpersonal awareness, that by the relationship and complexity built and the regulation of
respecting these revisions we manage to avoid disagreements and relations in a given society.
norms as such would not have been violated.
References
Justice is a troublesome feature not only for the individual but
1. Akvinský, T. (1938) Theologická summa I-II.
also for the states, from a common point of view it is something
Redigoval P.Emilián Soukup. Olomouc: Lidové
between the greatest good (that is, to do injustice without being
závody tiskařské a nakladatelské.
punished), and the greatest evil (that is, to suffer injustice without
2. Gurakuqi. R. (2009) Introduction to Public Law.
revenge for it) (Malnes & Midgaard, 2007a). In this case, justice
Camaj-Pipa-Tirana. p.64
has been raised to the highest pedestal, which serves as an
orientation for both the legislator and the judge, to use the
3. Kryeziu. K. (2011) Introduction to the Theory of Law.
Pena- Prizren. p.20
instruments for the purpose of administering justice, which in this
case constitutes the highest rank on the administration of justice. 4. Kryeziu. K. (2017) Roman Law. Pena - Prizren. p.17

These elements as well as these principles must be used by 5. Lukiq. R. (2008) Philosophy of Law. Prishtina. p.36
everyone to be able to, if society believes in such a role, decide 6. Malnes. O. & Midgaard. K. (2007) Political
correctly and on the basis of moral and legal principles as well as Philosophy. Prograf-Prishtina. p.25
divine principles and justice, if it can be called so with in order 7. Osmani.I. (2004) The Beginnings of Law. Grafo Beni-
for law as a social element to be in coherence with justice. The Botus Council of the University of Prishtina p.7
embodiment of these two premises would certainly give a basic
8. Ruso. J. J. (1998) Social Contract, Luarasi Publishing
meaning to the notion of law and justice in general.
House. Tirana. p. 21
9. Spinoz.a B. (2015) Ethics. Point without surface -
8. Conclusion Tirana. p.328
The reflection of the paper is a trend which reflects on a
10. Law No. 06 / L-054 on the courts. Prishtina.. p.7.
specification on law and justice, taking into account how broad
Available at: https://gzk.rks-
and difficult the topic of law is. We have managed to highlight
gov.net/ActDocumentDetail.aspx?ActID=18302
some of the features and concepts of many philosophers, and
continuing with the intertwined thoughts of both the legal and
sociological worlds, seeing the nuances and perceptions of factual
theories with a wide range of elaboration and its interconnection
with justice, as two virtues that have almost followed humanity,
from the first beginnings of tribal creation and regulation, to the
modern state.

The topic in question has tried to refresh the thoughts on law and
justice, as well as the continuity of these two issues in our society,
in the scientific spirit and based on the literature document.

In the first part of this paper we have analyzed what is right, the
first thoughts on the foundation of this notion, as well as its
existence as a necessity in regulating our social relations. In
particular, we have managed to conceive that law and justice are
in a constant coherence when one, according to the philosophical
and formal-legal concept, creates norms, and the other gives
justice at a certain time, and for each individual case.

In conclusion, we can draw conclusions about the importance of

the right where the most important part of our rights that we enjoy
today are part of a legal system, otherwise called the norm, and
the rest justice where both together they create a lasting peace in

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