Seite 24 [24]
IZOLDA TAKÁCS: THROUGH A GLASS DARKLY
unjust. He added that the moral and political issue of respecting rights deemed
immoral should be reconsidered in such cases." In any case, regardless of
grounding our argumentation from the natural law, or from positive legal
theory, both support the present argument about the gender issue.
It is, therefore, worth discussing the ideas below in relation to justice. First
in order to draw attention to the complexity of the concept of justice and sec¬
ondly because the need for justice, equal treatment, equal opportunities and
equity have come to the forefront past the universal recognition of first-gen¬
eration human rights, further building on the requirement for justice. Along
these lines, the transformation of positive discrimination into cohesive legis¬
lation has become equally important for both minorities and women.
SUUM CUIQUE TRIBUERE! — IS EQUITY EQUALLY JUST FOR EVERYONE?
The question of what justice is, according to Hans Kelsen, has always been
widely debated. In fact, perhaps no question has been debated so fiercely,
thought about more deeply by philosophers and had more valuable blood shed
over it in history than the question of justice. Nevertheless, it remains unan¬
swered to this day. In his essay What is Justice?” Kelsen actually argues that
justice cannot be deduced from objective theorems. Since this question cannot
be answered in an absolute way in his opinion, it is the positive law that can,
in a kind of social order, realize the only thing available: the relative truth
(truth alternatives). Kelsen also pointed out that certain doctrines, religious
or metaphysical approaches (see, for example, Plato’s absolute idea of the Good)
sought to absolutize this relative truth by transposing the concept of justice
into the transcendent, their approaches however also referred all questions of
absolute justice into the competence of the divine. In contrast, positive law
completely excluded this and natural law itself as well: everything where
standards can be deduced from nature.”
What we can accept is that human interests can be ranked according to the
different conflicts of interest on the basis of which of these represents greater
value. And, according to Kelsen, when it comes to value, we cannot make ob¬
jective statements such as those of the laws of physics. In fact, he goes further
and claims that every value system is in fact a social phenomenon, social con¬
struct, and although it may be said that certain values are consensually agreed
20 Hart, H. L. A.: A jog fogalma, Budapest, Osiris, 1995; and confer Frivaldszky, J.: A harti ter¬
mészetjog minimális tartalma az olasz jogfilozófia és a klasszikus természetjogi gondolkodás
szemszögéből, Világosság 2010. tavasz, 157-187.
2 Kelsen, H.: Mi az igazságosság?, in Varga, Csaba (ed.): Jog és filozófia — Antológia a század első
felének kontinentális jogi gondolkodása köréből, Budapest, Osiris, 1998, 202—218.
22 Cf. ibidem, 209.
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