I am interested here in using Johannes Huizinga's work on play, Homo Ludens, to explore a strange, yet civilizing, phenomenon. Why do we take those social disputes in our ordinary lives that often seem most serious and therefore most divisive, turn them over to playful participants in a legal game, and then choose, more or less, to call the outcome of this game justice and to trust it as such even to the point of preferring it to the political? Why, that is, do we think that it is justice that arises from this play?
This inquiry is not quite as broad as it may seem, for the justice I have in mind here is the justice that is carried as an internal good of the legal conversation. It is not the justice we might mean when we say a law or an action or a person is just or when we use the word justice in many of its other forms. It is, however, rather closely related to what we mean when we say that a society is a just one. The justice here is the justice of justice was done, but in the procedural sense of doing that refers to the legal conversation's having gone well on its own terms. It is, in other words, the justice best described, and most admired by lawyers as advocates, with reference to the manner in which a particular legal dispute was resolved through the conversation for which these lawyers are primarily responsible. By defining justice this way, I do not suggest that only lawyers appreciate this justice or that it is only a lawyer's justice. For the ideals of the legal conversation are accepted by our community, for the most part, as providing something it is willing to call justice.
Sammons, Jack L.
"Justice as Play,"
Mercer Law Review: Vol. 61:
2, Article 4.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol61/iss2/4