According to the Principle of Formal Justice like cases must be treated alike, and different cases must be treated differently. This principle is derived from the Aristotelian concept of distributive justice. Aristotle held that ‘All men agree that what is just in distribution should be according to merit of some sort, but not all men agree as to what that merit should be’. The classical concept of illegal discrimination, in Community law referred to as direct discrimination, seeks to decide what these merits must not be. This is done by declaring disparate treatment on certain grounds, in certain circumstances, illegal. It is argued in this paper that exceptions to this principle are made through acknowledging that discriminations on prohibited grounds are sometimes justified, and that this should be called justified direct discrimination. It is submitted that it is only obscuring to the concept to suggest otherwise, since the concept of discrimination as such, just as the Principle of Formal Justice, should not be carrying substantive or emotive meanings. The subsequent concept of indirect discrimination aims instead at prohibiting disparate impacts of neutral criteria. There is some ambiguity to this concept, specifically on what it is that amounts to ‘discrimination’ in this context, and how the available defences should be perceived. It is submitted that to pursue clarity, it must be acknowledged that this concept is built on the second element of the Principle of Formal Justice, i.e., that different cases must be treated differently, and that ‘discrimination’ occurs when discriminators omit to do so, causing disparate impacts statistically connected to prohibited grounds of discrimination. A justification defence, if successful, should in such circumstances prompt courts to hold that there has been discrimination, but that it is justified. It is further argued that the concept of positive action is a formal concept through which disparate treatment is required on specific grounds, i.e., that the legislature in this case indeed recognises some ‘merits’ according to which distribution is ‘just’ (according to the legislature). Unlike direct and indirect discrimination, positive action is necessarily a one-way vessel, designed to promote preference for individuals belonging to a certain class of people identified by the positive action norm. The author concludes that all these concepts are built upon a formal structure taken from the Principle of Formal Justice, and that the acknowledgment of this fact can contribute to clarity in anti-discrimination law.

Doctor Legum - LLD / Traditional justice systems (TJS), which apply African customary law (ACL), play a significant role in the regulation of various cultural, social, and economic spheres of individual lives in society. It is estimated that 90% of African countries use TJS in dispute resolution. Succession matters form one of the areas in which TJS are applied. In Kenya, it is estimated that the majority of succession matters are addressed through TJS given that only 36% of cases are taken to the formal justice system (FJS) for determination. This indicates the presence of legal pluralism where formal law co-exists with African customary law. However, the application of customary succession laws and their enforcement by the FJS encounter impediments which curtail the integration of ACL within the FJS. Therefore, the purpose of this study is to determine the interface between African customary laws of succession in the TJS and the FJS. In order to achieve this objective the study applies the Historical School of Jurisprudence as its theoretical framework and applies document analysis as the research methodology. The major findings of the study indicated that though progressive recognition, application and enforcement of ACL in Kenya has been realised, there are several impediments to the integration and enforcement of customary succession decisions within the FJS. These include non-complimentary legal provisions, lack of in-depth knowledge on ACL by the FJS, and more importantly, lack of a policy guideline on the integration of ACL within the FJS. Based on these findings, this study finds it necessary to develop a guideline that will enhance the integration and enforcement of customary succession decisions by the FJS.

O presente trabalho analisa como o economista austríaco Friedrich August von Hayek estrutura sua teoria da justiça, identificando a realização do ideal de justiça numa sociedade livre com a vigência do Estado de Direito, ou seja, do governo das normas gerais de conduta justa, que deverão ser aplicadas sempre visando a igualdade formal (isonomia). Ainda, discute os motivos pelos quais o autor considera que a liberdade individual só poderá efetivamente florescer em uma ordem espontânea, que funciona baseada na concorrência, a qual só poderá se manter onde vigore o Estado de Direito e, portanto, haja justiça formal. / The present paper analyzes how the economist Friedrich August von Hayek structures his theory of justice, identifying the accomplishment of the ideal of justice in a free society with the Rule of Law, that is to say, in the government of rules of just conduct, which must be applied always aiming at the equality before the law (isonomia). Besides, this paper discusses the reasons why the author considers that liberty can effectively flourish only in a spontaneous order that performs based on competition, which will be maintained where the Rule of Law stands and, therefore, the formal justice is present.

O presente trabalho analisa como o economista austríaco Friedrich August von Hayek estrutura sua teoria da justiça, identificando a realização do ideal de justiça numa sociedade livre com a vigência do Estado de Direito, ou seja, do governo das normas gerais de conduta justa, que deverão ser aplicadas sempre visando a igualdade formal (isonomia). Ainda, discute os motivos pelos quais o autor considera que a liberdade individual só poderá efetivamente florescer em uma ordem espontânea, que funciona baseada na concorrência, a qual só poderá se manter onde vigore o Estado de Direito e, portanto, haja justiça formal. / The present paper analyzes how the economist Friedrich August von Hayek structures his theory of justice, identifying the accomplishment of the ideal of justice in a free society with the Rule of Law, that is to say, in the government of rules of just conduct, which must be applied always aiming at the equality before the law (isonomia). Besides, this paper discusses the reasons why the author considers that liberty can effectively flourish only in a spontaneous order that performs based on competition, which will be maintained where the Rule of Law stands and, therefore, the formal justice is present.

O presente trabalho analisa como o economista austríaco Friedrich August von Hayek estrutura sua teoria da justiça, identificando a realização do ideal de justiça numa sociedade livre com a vigência do Estado de Direito, ou seja, do governo das normas gerais de conduta justa, que deverão ser aplicadas sempre visando a igualdade formal (isonomia). Ainda, discute os motivos pelos quais o autor considera que a liberdade individual só poderá efetivamente florescer em uma ordem espontânea, que funciona baseada na concorrência, a qual só poderá se manter onde vigore o Estado de Direito e, portanto, haja justiça formal. / The present paper analyzes how the economist Friedrich August von Hayek structures his theory of justice, identifying the accomplishment of the ideal of justice in a free society with the Rule of Law, that is to say, in the government of rules of just conduct, which must be applied always aiming at the equality before the law (isonomia). Besides, this paper discusses the reasons why the author considers that liberty can effectively flourish only in a spontaneous order that performs based on competition, which will be maintained where the Rule of Law stands and, therefore, the formal justice is present.