Why not an Asian trans-gender woman — Harry Hindu

We could have an Asian trans-gender person; we could have an indigenous gay person, we could have a pissed off incel of whatever extraction. One barrier to having these types is that the supremes are usually selected from the cohort of experienced federal judges. There are not many Asian trans-gender, gay indigenous, pissed off Incel judges to start with, even fewer who are experienced. Maybe n=zero in that category.

Hence, have patience.

But were I appointing judges, I would not start with a transgendered person. The status of "transgender" is too unsettled at this point.

Abstract: What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law.
Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is
part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a conclusion that justice is somehow part of law. — god must be atheist

"Lex initusta non est lex" Thomas Aquinas. :brow:

I would have to read the article to see if it makes sense. However, there is a whole natural law tradition (I am no natural law theorist by the way, neither is Ciceronianus) that holds that law and justice are intimately connected. In any case it probably comes down to a definition of justice, or to the use we put it. I found my argument to be coherent, so if there is some sort of counter to it in the article I'd like to hear it.

So if nearly every writer said the same thing as I did ( — god must be atheist

I am very sure they did not. Probably the debate the article referred to is between positivism and natural law. No author I have read (and those are quite a few) claim that having a procedurally sound legal system is unjust. What the debate is about probably is whether law as such should be law also if the law is unjust. Here I side with the positivists: law is law, no matter whether if it is just or unjust. Justice is not integral to the definition of law, I agree. However, that is a different claim than a procedural legal system does not serve justice.

To your credit the article does present some claims going your way nicely, I admit. I will have to really read it to get to the heart of it, but that is an interesting an endeavor and I am in no way dismissing it out of hand. However, the author also concedes than many authors, actually hold procedural requirements as an element of just law.

See here on p. 21 "We saw earlier that Kelsen claimed that justice was, at best, a commentary about the
law (the idea of an "unjust law"), or in the special context of the administration of the law, a
concept that reduced to legality (according to Kelsen, the just administration of the law "means
legality"). In other words, Kelsen is saying that justice makes sense above the law (as a
commentary on it), or under the law. We can concede these uses of the term ''justice,'' and yet
maintain that they do not rule out the possibility of justice within the law in the sense that I've
been talking about it (justice as part of what directly influences the judge in deciding a case)."

I think I am on Kelsen's side, which when it comes to philosophy of law is not a bad side to be on. Though I agree justice in that specific case features in an court decision. I also do not know anyone who would disagree since the reign of the so called 'legists' in 19th century Europe. However, the article is certainly interesting and requires some thorough reading so I will give it a go when there is a bit more time. Thanks for bringing it to my attention.

He actually seems to be in the natural law tradition arguing there is and should be a connection between law and justice. That is fine of course, however, he is hardly the only writer to make that point. I am also not arguing law can just forego concerns of justice, what I am saying pace the old Radbruch, is that legal certainty is itself necessary for law to function in a just way, meaning, bringing a just society closer. But by all means less discuss the article further!

@Benkei It is an adddiction Benkei.... now what I wonder is, what keeps you addicted, what is your poison?

White men through cultural socialization automatically think POC are less qualified and less competent than white counterparts. The bias of perceiving black women as inherently less than in comparison to other women and men runs deep. Look at all the reactionary weirdos thinking that because a black woman is being nominated to the supreme court that equal amount of assessment and evaluation on her qualifications aren't being considered.

But we've had plenty idiots on the supreme court for the last 4 centuries, so all of sudden "IQ" and stupid shit like that matters.

I agree. Glad at least Lindsay Gramm is on board with one potential candidate. Particularly since a Democrat senator had a stroke and will be not voting for a bit. I kind of wish there was no controversy with increasing the size of the court. Hopefully combined with a 20 year term instead of life.

I think some things are worth discussing. I just hate discussing with idiots.

Any way, what is Kelsen's Grundnorm if not another name for justice?

I do not think the Grundnorm is a name for justice... the Grundnorm in Kelsen's system is based on justice. The Grundnorm is simply the norm laid down to determine which rules ultimately grant the power to make law. It is similar to Hart's rule of recognition, though Kelsen had an act of the state or ruling power in mind and Hart the behavior of legal professionals as ultimately constituting the Grundnorm/Rule of recognition... I think Kelsen's concept inspired Hart's. However, both I see as equally positivist, in that justice is not an intrinsic part of what determines law as law...

You would teach your grandmother to suck eggs, I see. That's an actual idiom, by the way, though it's peculiar enough to please me, so try not to take offense.

News flash: that's not how this process is designed to work (certainly it hasn't in two and a third centuries). ↪ — 180 Proof

What are you saying here? That the system is inherently designed to be racist/sexist? That none of the last 250 years worth of appointees weren’t the most qualified?

The only thing "racist and sexist" is the 95% white male quota for SCOTUS. — 180 Proof

I’m not arguing that racism wasn’t applied in the past. Overt racism was the norm in this country until what ~50 years ago? But setting this up as some sort of revenge appointment, or reparation for past misdeeds is distasteful IMO. Biden’s just pandering to his base by calling attention to it. It actually makes it seem like the only reason this lady will be appointed is because of her race. In other words, it implies that if the appointment was made strictly by judging their qualifications she wouldn’t have gotten the job.

Besides, a black woman professional is far more likely than not to be "more qualified" than her white male peers because she has had to be (even expected to be) every step of the way throughout her career due to systemic discrimination against her on account of both gender and race. — 180 Proof

Maybe, maybe not. I think it’s a stretch to claim that every black female judge has experienced workplace discrimination.

That's true in some situations; in others, it isn't. Race and gender do not matter when you are hiring a hundred teachers; just got the best you can. The best person to be Pope, however, will be a Catholic male. — Bitter Crank

Ok, but that’s still discrimination based on religion and sex (and age as well, I believe). Just because that method may achieve the “best results,” doesn’t mean it isn’t discriminatory.

If you want someone sensitive to the issues inherent in cases concerning race and gender, a black woman would be the best person. — Bitter Crank

Not necessarily. It isn’t like a male can’t be sympathetic to the plights faced by females. There were also white activists during the Civil Rights weren’t there? This type of thinking implies that there are qualities that can only be possessed by people of a specific gender/race, which is just another form of race (or sex) essentialism, correct?

Hypocrisy is our collective default state. — Bitter Crank

Only in 1984. Hopefully we will never come to that, but it appears that is where we are headed.

We could have an Asian trans-gender person; we could have an indigenous gay person, we could have a pissed off incel of whatever extraction. One barrier to having these types is that the supremes are usually selected from the cohort of experienced federal judges. There are not many Asian trans-gender, gay indigenous, pissed off Incel judges to start with, even fewer who are experienced. Maybe n=zero in that category.

Hence, have patience.

But were I appointing judges, I would not start with a transgendered person. The status of "transgender" is too unsettled at this point. — Bitter Crank

Fair points made on the trans- options, but ....

If you want someone sensitive to the issues inherent in cases concerning race and gender, a black woman would be the best person. — Bitter Crank

I was specifically asking why, if there were available Asian trans-women as viable options, why a black woman is the best person as someone that is sensitive to the issues inherent in cases concerning race or gender. You made it sound as if black women hold some special vantage point on the matter. But if you're saying that blacks are the only minority that we a viable pool to choose from then that makes more sense.

Not necessarily. It isn’t like a male can’t be sympathetic to the plights faced by females. There were also white activists during the Civil Rights weren’t there? This type of thinking implies that there are qualities that can only be possessed by people of a specific gender/race, which is just another form of race (or sex) essentialism, correct? — Pinprick

I was specifically asking why, if there were available Asian trans-women as viable options, why a black woman is the best person as someone that is sensitive to the issues inherent in cases concerning race or gender. You made it sound as if black women hold some special vantage point on the matter. But if you're saying that blacks are the only minority that we a viable pool to choose from then that makes more sense. — Harry Hindu

Sex, race, ethnicity, religion, class, education, etc. are not reliable indicators of political or judicial views. Those factors, plus social and professional experiences, are more reliable indicators of how someone will behave in the future. Nothing guarantees a specific opinion or behavior.

The American colonies and later the union of 13 colonies cum states, was never an egalitarian society. It still isn't. From before our beginning (in England) propertied men and of course white males were the beneficiaries of systems of education, social experience, privilege and power.

From the first justices down to the present, the largest group of qualified and (very important) well-connected individuals have been white males. Only recently (measured in decades) have any women, white, black, or asian, attained sufficient education, judicial experience, and connections to be considered for the court. That is not to say that there were never women who could have served on the court, but nominating them would have been a huge deviation from standard practice. The political system, after all, was composed exclusively or (lately) mostly white males.

In the last 30 or 40 years, that has begun to change.

In an earlier post I pointed out how much conservatives hated the court under Chief Justice Earl Warren (1950s and 1960s). Those hated liberal judges were all white males.

There are very conservative blacks and women who no political liberal or even moderate would think of appointing to the court. There may be, given time, asian transgender justices who no liberal or even moderate would think of appointing to the Supreme Court. Being asian and transgendered does not, as far as I know, also make one a justice interested in extending civil liberties, lessening corporate privilege, and so on.

What does make someone a liberal, if anything does, is class, education, and (most important) social experience.

the Grundnorm in Kelsen's system is based on justice. — Tobias

That can't be. The Grundnorm is the norm that all other norms, rules and law, derive from. By definition it cannot be based on something else.

I was reading discworld novels when studying Kelsen and I thought the "turtles all the way down" was an apt metaphor for his Grundnorm. He never defined it and I thought it was a cop out to try to avoid saying something like, it's based on divine law, it's natural law etc. I didn't particularly like him. I liked Hart better.

I'm confronted with the Brno legal positivist school in my daily work actually. Kelsen lives on in Slovakia which for practical purposes totally sucks.

The past is never dead. It's not even past.
~William Faulkner — 180 Proof

Assuming you're not disingenuous, your replies suggest you do not understand my post perhaps due to a lack of sufficient historical background on the issues of class race & sex/gender exclusion still at work in America. You're, of course, entitled your uninformed opinion, 'prick, which doesn't change the facts of the matter .

That can't be. The Grundnorm is the norm that all other norms, rules and law, derive from. By definition it cannot be based on something else. — Benkei

No no, my apologies. I wrote it wrong. The Grundnorm is not based on justice. The Grundnorm is simpy the norm all other norms derive their binding force from.

I was reading discworld novels when studying Kelsen and I thought the "turtles all the way down" was an apt metaphor for his Grundnorm. He never defined it and I thought it was a cop out to try to avoid saying something like, it's based on divine law, it's natural law etc. I didn't particularly like him. I liked Hart better. — Benkei

They are similar in my view. Just that for Kelsen a Grundnorm is an act of state. Hart with his more common law ancestry defines it not as an act of state but an act of legal professionals.

Turtles all the way down is an apt metaphor except that in law the turtle ends somewhere. Namely at that force that has the power to say "we the people..." etc. In the Westphalian order it is the state.

I'm confronted with the Brno legal positivist school in my daily work actually. Kelsen lives on in Slovakia which for practical purposes totally sucks. — Benkei

Why are you confronted with the Brno legal positivist school? Not that I have an inkling of what they think in Brno, but it sounds cool. I am interested, please tell me more!

Why are you confronted with the Brno legal positivist school? Not that I have an inkling of what they think in Brno, but it sounds cool. I am interested, please tell me more! — Tobias

Well, I change the name of a company in the Netherlands and then refer to that new name in the share purchase documentation and resolutions approving that SPA. I then file it with the chamber of commerce, no problems. The proof of the name change is that first resolution. I just have to make sure everything is signed in the right order.

Now in Slovakia the new name doesn't exist until it's registered. Which takes about two weeks. If you're lucky. Legal facts only exist there if they're registered. Which is very annoying if nobody tells you beforehand and you're working on a time critical corporate restructuring.

Obviously I avoided the problem but it raised the following interesting question to me. If the SPA is between two Dutch entities and governed by Dutch law, what would've been the correct name of the Slovak company in the SPA if that would be signed between the Slovakian resolution to change the name and the registration in the public register?

Pox on your first born, and a the scream of a thousand angry dead souls to constantly ring in your ears. Those are... sort of idioms, not quite, but it pleases me to tell you this, so don't go take it personally and ignore the arguments presented to you.

Here's another idiom, meaning much the same as the one about sucking eggs: You would teach your grandmother to milk ducks. Even better, and less common.

I'd think it would be obvious that I'm something of a legal positivist, or perhaps American legal realist, having favorably quoted O.W. Holmes, Jr. on law and justice. Regardless, I've long thought it an error to conflate law and justice, and law and morality for that matter. I've tried, ever so hard, to explain that to clients over the years as well. So I'm afraid your arguments are quite familiar to me and have been for some time, and raise no concerns. Thus you purport to teach me, figuratively speaking, to suck eggs or milk ducks in locus avius as it were.

Exaggeration, by the way, can be a form of humor, as can irony. I get the impression humor is something unfamiliar to you, so I call it to your attention.

Speaking of American legal realism, this is how we do the law in our Glorious Republic:

https://www.youtube.com/watch?v=1AuCgkBmag4

Assuming you're not disingenuous, your replies suggest you do not understand my post perhaps due to a sufficient lack of historical background on the issues of class race & sex/gender exclusion still at work in America. — 180 Proof

I understand your post, but largely don’t see the relevance. The question is whether or not appointing a person to a position on the Supreme Court based on their race is racist. Not whether or not doing so is justified. My thought is that it is racist, because racism is defined as discriminating based on one’s race. If you would respond to the questions I’ve asked, perhaps we can have a conversation.

As it stands now, I fail to see your reason for denying this is racist. If Biden would have said he would appoint a white male, would you find that racist? Do you define racism differently than I do? You’ve talked a lot about how racism against blacks has, and continues to, occur, and how SCOTUS has basically been exclusively white males, but how does any of that justify your stance?

Clearly the nomination is, and always has been politically motivated. As to whether it's racist, let's be daring and innovative, and consult dictionary definitions of "racist."

Merriam-Webster (online):

"having, reflecting, or fostering the belief that race (see RACE entry 1 sense 1a) is a fundamental determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race."

Dictionary.com:

"noun
a person who believes in racism, the doctrine that one's own racial group is superior or that a particular racial group is inferior to the others.
adjective
of or like racists or racism:
racist policies; racist attitudes."

Cambridge English Dictionary (online):

"someone who believes that their race makes them better, more intelligent, more moral, etc. than people of other races and who does or says unfair or harmful things as a result:

Two of the killers are known to be racists.
She cannot understand how her husband could be branded a racist.

racist
adjective disapproving
coming from or having the belief that people who belong to other races are not as good, intelligent, moral, etc. as people who belong to your own race :
He furiously denied being racist.
They were the victims of a vicious racist attack.
racist remarks."

Collins English dictionary (online):

"NOUN
1. a belief or doctrine that inherent differences among the various human races determine cultural or individual achievement, usually involving the idea that one's own race is superior and has the right to rule others
2. an overt policy, system of government, etc., based upon or fostering such a doctrine; discrimination
3. the maintenance of social, economic, and political structures that deny privileges and opportunities to members of certain racial groups
4. hatred or intolerance of another race or other races."

These definitions indicate that according to the most common usage, one is a racist if one believes members of a particular race, or one's own race, are better or superior to members of another race. I don't think it can be maintained, reasonably, that Biden or his administration want to nominate a black person based on the belief that black people are better or superior to white people. Is that what you maintain--the nomination is based on the belief the black race is superior to the white race?

As it stands now, I fail to see your reason for denying this is racist. — Pinprick

You are not being racist. You are being obtuse.

Obtuse:
"annoyingly insensitive or slow to understand."
"he wondered if the doctor was being deliberately obtuse"
Similar:
stupid
dull
slow-witted
slow
dull-witted
unintelligent
witless
(and more)

The synonyms are too harsh to be applied to you on this particular instance, but they are tempting.

Your blunt, literalist interpretation of the word 'racist' makes it impossible for you to see any effort to ameliorate past racial discrimination as anything but more racism.

How do you plead?

Really having people on the supreme court is so outdated. Shouldn't the decisions be made by a computer to avoid bias?

And who (re: class, ethnic/color, sex/gender & sectarian member(s)) will code this "unbiased" computer program?

:up:

:ok: ...

Is that what you maintain--the nomination is based on the belief the black race is superior to the white race? — Ciceronianus

No. I’m maintaining that excluding all races and genders except black female from consideration for a position is racial (and gender) discrimination, which I equate with racism/sexism. Am I mistaken in equating the two?

Your blunt, literalist interpretation of the word 'racist' makes it impossible for you to see any effort to ameliorate past racial discrimination as anything but more racism. — Bitter Crank

I haven’t denied that this is an attempt at ameliorating past wrongs. I think it’s both. And I haven’t commented on whether or not it’s moral/immoral. That’s partly what I find interesting about this. Racial discrimination is typically on par with things like rape and murder when it comes to moral value, but in this instance racial discrimination can be argued to be good.

I honestly haven’t decided yet, but the optics are certainly awful. Whomever Biden chooses will now be viewed by some as the beneficiary to racial/gender discrimination. She herself may even believe that her skin tone and gender are the only reason for getting the position, which is unfortunate. Had Biden just kept his mouth shut and refrained from indulging in this political stunt, and simply appointed a black woman there’d be no issue. But instead it now seems that he’s doing this as a favor to black people and women, which implies that they otherwise are not qualified for the position.



Let me know if I’m misrepresenting you’re position, as that’s not my intention. From what I gather, you think acts, thoughts, policies, etc. can only be racist if they cause actual harm. You said that Biden excluding other races/genders from consideration only harms the “95% white make quota.” I take this to not count as actual harm. But, if there are other qualified people for this position of different races/genders are they not harmed by not being considered? Also, if there is someone who would do a better job than the woman he selects, wouldn’t that harm the public in general? This is a Justice of the Supreme Court who will, by its very design, be commenting and judging the most pressing judicial matters in the US. Shouldn’t Biden’s duty here be to ensure the best available person gets appointed?

I understand the subjectivity of determining who is best qualified, but unless there’s some reason to think a black woman is necessarily more qualified than other races/genders other races/genders should not be excluded from consideration. You’re suggestion that a black woman is likely more professional (i.e. qualified) than others due to her having to be because she likely experienced workplace discrimination is plausible, but unconvincing. Isn’t it equally likely that her experience of workplace discrimination creates a bias against those who are similar in some way to those who discriminated against her?

No. I’m maintaining that excluding all races and genders except black female from consideration for a position is racial (and gender) discrimination, which I equate with racism/sexism. Am I mistaken in equating the two? — Pinprick

Based on the definitions I related, I don't think the nomination is racist. To be racist, it seems you must contend that a particular race is superior than another; that must be the basis of the distinction made. If the nomination isn't based on a belief in the superiority of a black woman over others because she's black or a woman, it doesn't appear to come within the definitions. I think you have an uncommon definition of racism.

You said that Biden excluding other races/genders from consideration only harms the “95% white male quota.” I take this to not count as actual harm. — Pinprick

I suppose the irony of that remark is lost on you.

But, if there are other qualified people for this position of different races/genders are they not harmed by not being considered?

Of course not, since no one is "entitled" to that job by "birth right". Besides, for at least the last century there have been many "other qualified people of different races/genders" than Straight White Christian Men not even considered for appointment to the high court; this historical "quota" has not materially harmed the 'qualified others' but, in fact, has in many ways materially harmed the American people in general and American jurisprudence in particular with the SCOTUS' experientially narrow and predominantly classist decisions.

:up:

@Benkei Well not knowing anything about corporate law my 2 cts are as good as anyone else's. The SPA might be between two Dutch companies, but apparently there is a Slovak company involved and this slovak company is in the process of a name change. Can you not refer the company with its old name and add something like 'as registered' and refer to the new name as ' in the process of being registered as.... ' ? I know corporate law can be very formulaic, Turkish corporate law in any case is, which resembles this kind of problem.

Anyway, I deeply disliked corportate law ;) so back to my beloved Grundnorm and the issue of Natural law in the Amato article. Oddly enough it came up in the free will discussion so it is well worth spending some time on.. The Grundnorm first, indeed it is a sovereign act of law creation, the only one there is in the Kelsenian system. It is designed to end the ' turtles all the way down' one gets when following the steps of the legality of rules. It ends somewhere and it ends for Kelsen in a sovereign act of law creation. " I am the law!" to speak with Judge Dredd... It is an act by whoch a community establishes itself as a community under the law. It is itself not based on anything indeed but on a sovereign act.

Again, this reference should not be seen as an argument to support my case. It is, instead, for you to consider that your socially ingrained adoration of law is viewed by many philosophers, including from Plato's time on, as a false, misplaced adoration. — god must be atheist

No, I am not adoring the law as you say. I have read the article and I must say, so many words to state such an obvious thing! However I think the writer is mistaken, or at least not penetrating enough on a number of areas.

First of all. We are not in disagreement, certainly law and justice are intertwined. However, compare your case to his. In your case on Jones and Perez you smuggled in a hidden assumption, namely that we knew with certainty that Perez indeed owed money to Jones. In a court of law there are two types of rules, rules of substantive law (material law) which states what needs to be done. In this case Perez needs to repay the money. There are also rules of evidence, they belong to the realm of procedural, formal law and pertain what counts as evidence. In the case you present, there is some sort of a priori knowledge, but we do not have that. Therefore we need to allocate the burden of proof. It might well be than that the wrong party gets to keep the money because the other could not prove it. That is only unjust with the benefit of hindsight.

Now D'Amato's article is actually about something very different, it is about substantive law. He makes a couple of claims. With most I take no issue at all. The first is his contention that "We cannot do justice if we are blind to the law. It is critical to underline the 'facticity' of law. Law is a topographical fact just like a hill or valley or stream. It is something that exists. But it is not something that has normative power."

I do not agree with law not having normative power. It appeals to obedience by being issued as law and not as a command of a gang of thieves. That said, it is not the only precept that has normative power. there are notions, such as equality, equity, fairness, that hold normative power too and they can trump the normative power of the law. I also do not agree that law is a fact like a hill or stream. That is a silly comparison. It means that the law is simply an obstacle to overcome. It is not, it determines behaviour in a very different way. It makes an appeal to the reader of what he or she should be doing, not what they can or cannot do, as a physical impediment does. It orders our society and also signals mutual expectations. It also, and that is the crux of my argument defines what we see as justice. Amato thinks justice informs the law but the relationship is a deal more complicated than that. He gives the example of stealing oranges from a yard. It is our sense of justice he contends that makes us know we will not escape punishment. However, there is nothing inherently just in the institution of private property I would content. It came about through law ways, not even written law, probably customary law, but law nonetheless. We have just internalized it and called it 'justice'.

Secondly, he thinks that when a literal interpretation of the law leads to flagrantly unjust results we need to take recourse to justice and we also do. He cites the case of riggs v Palmer where the testator is murderer by the beneficiary and the courts did not award him the inheritance. He also uses this example in the hypothetical he constructed of the poor child being killed in an accident.

I think here he underestimates the resilience of the law and makes an appeal to some sort of category unnecessarily vague, justice. It is of course clear that in the hypothetical case the judges should acquit Alice. D' Amato thinks that this follows from justice concerns. However that leads to problems because than we have to conclude that when justice conflicts with law justice trumps law. However, our sense of justice is not always equal. Law as a whole system would than only be conditionally valid. Worse is that it sets up a false dichotomy. We would have to say that the conviction of Alice was legally right, but from a justice perspective wrong. Difficult to reconcile with the normative force of law. Fortunately there is another way.

I contend that the judges should acquit Alice not only out of justice concerns but out of legal concerns! That needs some more penetrating legal analysis. Alice crosses the white lines, but what are those white lines for? They are there to prevent accidents. The legal good they protect is the health of the participants in traffic. Alice crossed them to avoid damaging the health of a participant in traffic namely the darting child. She did exactly what the law wanted. A conviction would actually tell people not to do what the law wants, as the hypothetical also shows by presenting the case of Bruce. The verdict to convict Alice is not only wrong from a justice point of view, it is bad from a legal point of view. To that end Dworkin coined (or refined) the notion of legal principle. The law is not just what is on paper, below it there are principles at stake which lay embedded in the law. They determine whether violations of the law as it literally stands should b admitted or not. And indeed judges behave like that. They do not appeal to justice in order not to get into endless controversies but to legal principles as in the case Riggs v Palmer.

Of course such cases have been tried and we now have the ' lesser evils defense' in criminal law, appealing that you action might be justified because you averted a greater danger. It is now simply part of the law.

So what I have been trying to show you is that you mischaracterize law. It is not divorced from justice but justice emerges in a different guise, as a principle embedded within the law. The law of evidence may well be just even though in retrospect it may lead to unjust outcomes in a few individual cases. However the caricature you make out of law and lawyers, simply algorithmic rule followers, is a miss characterization. They are adapt at legal argument. If they reside in a sound legal order there will not be gross miscarriages of justice and when they occur the law and the judiciary should thoroughly self examine.

The Grundnorm first, indeed it is a sovereign act of law creation, the only one there is in the Kelsenian system. It is designed to end the ' turtles all the way down' one gets when following the steps of the legality of rules. It ends somewhere and it ends for Kelsen in a sovereign act of law creation. — Tobias

That's not how I understood Kelsen. Sovereignty is a norm itself so it becomes self-referential and, I'd argue, incoherent. So there's a turtle below sovereignty.

It is self referential, it is the exact norm through which\ law states its law like character, At least that is how I understand him. There is no other norm below the grundnorm, it is a logical necessity. But lets get to the bottom if this :) here is Raz' take on it.... link Raz