Introduction
This essay examines the justification for a government decision to acquire land from a small village to construct a luxurious shopping mall, using three jurisprudential frameworks: utilitarianism, legal positivism, and the pure theory of law as proposed by Hans Kelsen. The purpose of this analysis is to evaluate whether such an action can be deemed just from a theoretical perspective within the study of law. Utilitarianism focuses on the greatest good for the greatest number, legal positivism prioritises the validity of law regardless of moral content, and Kelsen’s pure theory of law separates legal norms from ethical considerations. This essay argues that, under these frameworks, the government’s decision can be justified as just, albeit with critical limitations in each perspective. The discussion will explore each theory in turn, assessing their application to the scenario, and will conclude with a summary of the arguments and their broader implications for jurisprudence.
Utilitarian Perspective: Maximising Overall Happiness
Utilitarianism, as developed by philosophers like Jeremy Bentham and John Stuart Mill, posits that actions are just if they promote the greatest happiness for the greatest number (Mill, 1863). In the context of the government taking land from a small village to build a luxurious shopping mall, a utilitarian approach would weigh the benefits to the wider population against the harm caused to the village residents. The construction of a shopping mall could stimulate economic growth, create jobs, and provide access to goods and services for a larger community. These outcomes arguably enhance overall societal happiness by improving living standards and offering opportunities for employment and leisure.
However, the harm to the village—displacement of residents, loss of homes, and disruption of community ties—must be considered. A utilitarian might argue that if the government provides adequate compensation or relocation support, the negative impact could be mitigated, thereby tipping the balance towards greater societal benefit. For instance, if the economic gains and infrastructural improvements benefit thousands, while only a few hundred villagers are affected (and compensated), the decision could be seen as just. Yet, this approach raises questions about whether happiness can be quantified and if the subjective loss of cultural or personal value to the villagers is adequately accounted for. Utilitarianism thus offers a pragmatic justification, albeit with limitations in ensuring fairness to minorities (Mill, 1863). This perspective prioritises collective gain, arguably at the expense of individual rights, highlighting a critical tension in its application to legal decisions.
Legal Positivism: Validity Over Morality
Legal positivism, as articulated by thinkers like John Austin and H.L.A. Hart, separates the validity of law from moral considerations, asserting that a law is just if it is enacted through proper authority and procedures (Hart, 1961). From this viewpoint, the government’s decision to take land from a small village for a shopping mall would be deemed just if it complies with existing legal frameworks, such as compulsory purchase orders or eminent domain laws in the UK context. Under the Land Compensation Act 1973, for example, the government has the legal authority to acquire private land for public purposes, provided compensation is offered (UK Government, 1973). If the procedural requirements are met, legal positivism would hold that the action is just, regardless of ethical objections from the villagers.
This approach, however, does not address whether the purpose of building a luxurious shopping mall constitutes a legitimate public interest. Hart’s concept of the ‘rule of recognition’ suggests that laws must be accepted by society as binding, but villagers might contest the fairness of such a decision (Hart, 1961). Legal positivism thus provides a formalistic justification, focusing on the law as it is, rather than as it ought to be. This perspective avoids moral debate but risks alienating those who view justice as inherently tied to ethical principles. It underscores a key limitation: the potential for legally valid actions to be perceived as unjust by affected communities.
Pure Theory of Law: Legal Norms as a Hierarchical System
Hans Kelsen’s pure theory of law offers a distinct framework by viewing law as a system of norms derived from a grundnorm (basic norm), detached from morality or sociology (Kelsen, 1945). In this theory, the government’s action to acquire land for a shopping mall would be just if it aligns with the legal norms established by the state’s constitution and legislative authority. If the decision to expropriate land is authorised by statutes and adheres to the hierarchical structure of legal norms—deriving legitimacy from higher laws down to specific regulations—then it is legally valid and, by extension, just within Kelsen’s framework.
For example, if the UK Parliament has enacted legislation allowing land acquisition for development projects, and the government acts within those legal boundaries, the pure theory of law would not question the moral implications of displacing villagers. Kelsen’s insistence on separating law from ethics means that objections based on fairness or community impact are irrelevant to the question of justice (Kelsen, 1945). However, this perspective is limited by its inability to address societal acceptance or the lived consequences of legal decisions. While it provides a clear, analytical justification based on legal hierarchy, it overlooks the human element, which may lead to perceptions of injustice among affected parties like the villagers.
Critical Analysis: Balancing Theoretical Justifications with Practical Implications
When synthesising these perspectives, it becomes evident that each offers a form of justification for the government’s action, yet each also reveals significant limitations. Utilitarianism supports the decision if societal benefits outweigh individual harms, but struggles with quantifying happiness and ensuring equitable treatment. Legal positivism upholds the action as just if legal procedures are followed, yet ignores moral concerns that might undermine public trust in the law. Kelsen’s pure theory reinforces legal validity through normative hierarchy, but its detachment from ethics risks alienating those who equate justice with fairness.
A practical example can be drawn from UK case law, such as challenges to compulsory purchase orders, where courts often balance public interest against individual rights (e.g., under the Human Rights Act 1998, which incorporates the European Convention on Human Rights). Although the law may permit land acquisition, affected communities frequently contest such decisions on ethical grounds, illustrating the disconnect between theoretical justice and lived experience (Duxbury, 2008). This tension suggests that while the government’s action may be just within these frameworks, broader considerations of legitimacy and public perception remain critical.
Conclusion
In conclusion, the government’s decision to take land from a small village for a luxurious shopping mall can be justified as just under utilitarian, legal positivist, and pure theory of law perspectives, albeit with critical caveats. Utilitarianism prioritises collective benefit but risks marginalising minorities; legal positivism upholds procedural validity while sidelining morality; and Kelsen’s pure theory focuses on legal norms, detached from ethical concerns. Each framework provides a lens through which the decision can be seen as legally or socially acceptable, yet none fully addresses the human cost to the displaced villagers. This analysis highlights the complexity of justice in jurisprudence, suggesting that while theoretical justifications exist, their practical application must consider societal values and individual rights to maintain legitimacy. Further exploration into how these theories interact with human rights law could offer deeper insights into achieving a balanced conception of justice in such contentious scenarios.
References
- Duxbury, N. (2008) The Nature and Authority of Precedent. Cambridge University Press.
- Hart, H.L.A. (1961) The Concept of Law. Oxford University Press.
- Kelsen, H. (1945) General Theory of Law and State. Harvard University Press.
- Mill, J.S. (1863) Utilitarianism. Parker, Son, and Bourn.
- UK Government (1973) Land Compensation Act 1973. The Stationery Office.
