LAW & JUSTICE

LAW & JUSTICE

1. 1) DEFINITION - the definition given in the Oxford English Dictionary is 'just conduct; fairness.' The definition of 'just' is 'acting or done in accordance with what is morally right or proper'. The definition of 'fair' is 'free from discrimination, dishonestly... in conformity with rules or standards.'

   • SUBJECTIVE - problems arise with the definition of justice as it is very subjective, people's views of what is justice can vary and what rules become law? PERELMAN recognised that justice has several meanings. In his book De La Justice, he set out 6 possible meanings of justice: rewards are based on contribution, people receive what they need, people get what they deserve, people may enjoy privileges according to status, people receive what the law says they should and that all people receive status.

2. 2) NATURAL LAW - assumes that if higher law is followed, the result will be justice. An unjust law might contrary to human good or against the higher law derived from God. A law which goes against God-derived law will be unjust and shouldn't be obeyed. Some Roman Catholics today would argue that this applied to laws legalising abortion. The Human Rights Act would suggest that there is a close relationship between the law and natural law theorists' concept of justice, because it incorporates into English Law the European Convention on Human Rights which sets out 'fundamental' rights, such as the right to life, freedom of expression and freedom from torture. Natural law theorists would not support the Law Lord's decision in the Debbie Purdy case (2009) because it doesn't uphold the sancity of life.

3. 3) DISTRIBUTIVE JUSTICE - requires that allocation of assests in society should be proportional to a person's claim on them. ARISTOTLE argued that this didn't necessarily mean equal shares, he believed that those who contribute more to society should receive the most. He didn't believe that it would be justified to grant a lazy person the same benefits as a hardworking person.

   • KARL MARX CRITICISES - the conflicting view is put forward by Karl Marx, he argued that justice cannot be in today's society because society is defective meaning achieving justice is impossible. Justice for Marx would be the existence of his ideal society and there would apparently be no need for a law to conform to. An example of Marxist theory today is the National Health Service which provides treatment for anyone who needs it.

4. 4) UTILITARIANISM - another theory of justice developed by Jeremy Bentham. The aim of utilitarianism is to maximise human happiness by increasing pleasure and diminishing pain. For utilitarianism, justice is concerned with promoting 'the greatest happiness of the greatest number'. This theory has been influential in legal reform and appears to be based on democratic principles. The legislative process is democratic and should ensure that legislation is created only if it pleases the majority.

   • CRITICISMS - Utilitarianism can be criticised for being difficult to apply in practise; its questionable whether happines can be directly or precisely measured. Another criticism is that utilitarianism is concerned with the consequences of an act and not the means by which it is applied. Thus, torture may be justify the end result of obtaining information. Individuals are regarded as important and the complete misery of a few is justified if it increases the happiness of the many.

5. 5) THEORY OF JUSTICE - John Rawls sets out justice as fairness. In order to avoid the situation whereby people exploit social and natural circumstances to their own advantage, Rawl places people behind a 'veil of ignorance'. No one knows their place in society, and people behind the veil of ignorance don't know what they will value as good or bad. His idea is to set up a fair procedure so that any principles agreed, will be just.

   • Rawls rejects the notion of utility. He believes that justice is achieved through rules which create inequality only if that inequality is of benefit to all, not merely to the greatest number. Furthermore, the equal right to liberty cannot be denied in favour of greater social or economic advantages. Like Aristotle, Rawls supports the idea of distributive justice and it is clear that the English legal system is based on the idea of distributive justice in that the law does allocate benefits and burdens through rights and duties.

6. 6) PROCEDURAL JUSTICE - law that denotes the procedures and methods used to enforce rights and duties. Judges will have to take into account a range of factors when sentencing an offender; these include the aims of sentencing, the crime itself, as well as mitigating or aggravating circumstances. As a result of this consideration, the sentence given should be just. Utilitarian reasoning would state that the process of sentencing is just, as imprisoning dangerous people protects the majority, meaning greater happiness for the greater number.

7. 7) ACHIEVES JUSTICE BY TREATING LIKE SITUATIONS ALIKE - the aim of law is to achieve justice by treating like situations alike and having discretion in sentencing. An example of injustice created by ignoring the individual situation would be the inability of battered women like Ahluwalia to use the law of loss of control in defence of murdering their abusive husbands. As convicted murderers they in effect carry the same stigma as the Moors Murderers. The stigma attached to the individual only varies because of the number of crimes rather than the nature of the crime itself. The sentence in any case is the same, a mandatory life sentence, and there is no discretionary sentencing in the case of murder.

8. 8) SUBSTANTIVE JUSTICE - substantive law creates, defines and regulates rights and duties. The more serious the offence, the harsher the sanction imposed. This, however, is not true of all crimes. Murder for example carries a mandatory life sentence. Regardless of motive, all murderers are given a life sentence. The theory of corrective justice would argue that this is fair, as individuals who kill deserve to have their life taken from them. However, this sentence is not 'just' for mercy killers, as in the case of Inglis. Inglis was found guilty of murder when she injected a fatal does of heroin into her brain damaged son. COA could only reduce her tariff from 9 years to 5. Those adopting Utilitarian reasoning would state that her imprisonment was unjust, as it brings not happiness to the majority.

9. 9) STEPHEN LAWRENCE CASE - the SL case demonstrates that there can also be concerns about whether the criminal justice system operates fairly in the interests of the victims. The suspects were aquitted and a private prosecution was also unsuccessful. Three people accused of murder are still at large. Relating to the theory of utilitarianism, they would believe that the greatest happiness for the greatest number has not been achieved as many people agree with the family that justice has not been obtained. You can see this when the William Macpherson lead a public inquiry into the conduct of the police during this murder investigation, suggesting that justice for the victims was not achieved.

10. 10) CONCLUSION - the meaning of justice is subjective as it can mean different things to different people, meaning that you can never objectively say that justice has been achieved. You cannot help the fact that judges and juries have their own views of ways in achieving justice. 'Justice' will either represent the views of the minority or the majority, so is very difficult to actually say that true justice has been achieved.

11. JUST NOW DON'T YOU THINK PICKLES AND SARAH SHOULD CONCEIVE.