The Courts, as Conservators of Social Justice

Abstract

The better security of social justice is the main aim of modern political institutions. The paternalism of older forms of government guarded it fairly, provided there were a good and wise king. But good and wise kings were rare. Absolute monarchies, therefore, as soon as it became generally admitted that governments existed for the benefit of the governed, had to give place to constitutional monarchies or to republics. It was easy to write into constitutions declarations as to certain things which social justice demanded, and prohibitions against legislation to the contrary. But the whole field was not thus covered. The constitution might warrant the judiciary in holding a statute void which fell within one of the particular prohibitions; but how if it were legislation plainly contrary to what seems to be natural right, and yet that should not have been expressly forbidden?