Seite 25 [25]
EQUAL RIGHTS BETWEEN SEXES
upon between societies and their members, they are still not objective but
rather relative. (For example, is freedom more valuable, or life?’ Simultaneously
— and this is pivotal for our subject -, values that can further the search for
justice, such as freedom, peace, democracy, i.e. the justice of tolerance are es¬
sential in theories of positivist thinkers. So, regardless of the fact that, accord¬
ing to Kelsen, absolute values of justice do not exist, there are and should still
be relative truths that express consensus on the highest values with the law.
The link between law and justice was already expressed much earlier: in
Roman law under the heading: honeste vivere, alterum non laedere, suum
cuique tribuere (to live honourably: not to injure another, to give each his due).?*
(Although Kelsen argues that “to give each his due” is merely an empty formula,
cannot give an answer to justice, and can even be used to justify any order.)
This triple imperative dates back to the ancient Greeks and was based on the
Socratic idea that justice means to give everyone what they were entitled to.
And, de facto, we give what is due to everyone relative to one another only if,
according to Aristotle, we treat the familiar familiarly, and the different
differently (proportionally different, that is by the degree of difference). The
most basic standard of justice can only be built on this.”
Herbert Hart’s idea of justice expresses the same idea as “similar cases must
be treated similarly, different cases treated differently.”” This is, in fact, assumed
in aequitas, which represents fairness in this context. Hart’s theory, which
fought to combat social inequality (and which looked at legislation from a legal
viewpoint, the aim being to prevent inequality in terms of this progressivist
idea), became the basic principle of discrimination.” In effect, Hart argued that
society should judge an individual based on their own performance, not based
on which group they are a member of. Hart also advocated issues — primarily
those related to the disenfranchisement of minorities — that he considered
important for social progression, thus he not only fought for the equal rights of
homosexuals, but made a stand beside other vulnerable social groups as well.
For example, he has also earnestly addressed the social barriers faced by people
with disabilities.”®
Hart has also had a great influence on Rawls’ theory, which we have mentioned
above. However, in the case of Rawls, all this theoretical reasoning can best be
grasped in terms of the so-called “justice of fairness”. Rawls has admittedly
formulated his theory of justice primarily in order to develop a more elevated,
abstract theory from the known social treaties (Rousseau, Kant, Locke, etc.).
23 Ibidem.
24 Justinian: Institutes, Book 1, Title 1, Sec. 3.
25 Toth J. Z.: John Rawls igazsagossag-elmélete, Jogelméleti Szemle, 2005/1. n.d.
26 Ouoted by Monori: Esélyegyenlőség, 4.
27 See also Monori: Esélyegyenlőség and Horkay Hörcher, F.: Hart és az oxfordi filozófia:
eszmetörténeti kontextusok, Világosság, 2010 tavasz, 15—42.
28 Horkay Hörcher: Hart és az oxfordi filozófia, 40.
23 ¢