But even at this stage, however, Hart thinks at least one sound principle of justice emergesfairly directly from his conceptual ground-clearing exercise. When it comes to assessing the
administration
of law, as opposed to its content, he believes that the like cases maxim yields astandard of justice: a law has been
pro tanto
justly administered if it has been impartiallyapplied according to its terms. This, Hart believes, is one explanation of the intimateconnection often asserted between law and justice: whatever the content of any particular law,some form of justice is achieved whenever it is applied according to its terms. But this thesisis questionable. First of all, even if it is true, it would appear to hold for all rules concernedwith inter-personal allocation. Consequently, it would not show that law, as opposed to anyother rule-governed system of allocation, enjoys a special connection with justice. But themore telling point is that the supposed standard of assessment does not obviously count as asound principle of justice. When, in a death camp scenario, a well-intentioned guard rescues
some inmates, but not others, from a hideous fate that they should all suffer under genocidallaws, it seems grotesque to describe his breaches of the law as even pro tanto unjust simply onthis basis. Conversely, it seems just as grotesque to insist that justice is served by theapplication of a law according to its terms irrespective of its content. For example, Hartclaims that one may say, without absurdity, that a law forbidding the access of blacks to theparks has been justly administered, in that only persons guilty of breaking the law werepunished under it (p.161). Even if such a view is not patently unintelligible as a principle of
justice, it nonetheless appears to be unsound. Hart’s suggestion involves the implausible
thought that there is a moral obligation, albeit a defeasible one, to apply the law according toits terms, irrespective of its content. We appear, at best, to have a formal principle of rationality that applies to any rule-governed endeavour, not a sound (or even intelligible)principle of justice.