Law and Justice

• Justice 


  Oxford English dictionary describe it as just conduct/fairness. For example, if convicted of a criminal offence there will be a punishment based on the idea of ‘just deserts’.  Difficult to define in a pluralistic society where justice may have different meanings.
• Different types of justice:

  1. Distributive
  2. Corrective
  3. Procedural
  4. Substantive
• Distributive 


  fair allocation of the burdens and benefits within society.  For Aristotle this did not mean equal shares whereas for Marx this meant equal shares based on need.  Consider whether the law provides distributive justice through the welfare state and taxation.
• Corrective 


  where the law attempts to right wrongs.  In criminal law this is done by punishing the guilty. In civil law this is done by awarding damages.
• Procedural 


  this refers to the legal processes that are in place to ensure fair trials take place. For example, use of jury in criminal cases.
• Substantive 


  this question here is whether the laws themselves provide a just outcome.
• Utilitarianism 


  Bentham’s view being that a justice legal system is one which provides the maximum happiness for the majority whereas for Aquinas, a natural law theorist, it would be a justice system that reflected the higher authority of God.
• Social Justice 


  Rawls view that everyone within society should have access to the basic necessities such as food and shelter. Although we have human rights protection, it does not guarantee food or shelter.
• PROCEDURAL JUSTICE:


  -          Cuts to legal aid mean many people are denied access to justice both in the criminal and civil courts.

  -          Miscarriages of justice indicate a lack of justice but Criminal Cases Review Commission that helps people who have been wrongly convicted indicate justice eventually. For example, historically the case of Timothy Evans and in modern times the recent post office convictions.
• CORRECTIVE JUSTICE:


  -          In criminal law this refers to sentencing.  Judges aim the provide justice through the use of the tariff system and life sentence for murder. Discuss the retribution aim of sentencing.

  -          In civil law this is achieved by the awarding of damages.
• What does the law of murder imply regarding mens rea in the case of Vickers?


  It allows conviction for murder even if the defendant only intended GBH.
• Why does the law of murder not provide justice in AG Ref (No3 of 1994)?


  Because killing a fetus in the womb is not classified as murder.
• How does the law of self-defense provide justice according to the defendant's belief?


  It assesses whether the force used was necessary based on the defendant's genuine belief at the time.
• What criticism does the Law Commission have regarding unreasonable force in self-defense cases?


  It leads to a murder conviction instead of manslaughter.
• What change in the law was influenced by Martin's case regarding householders and intruders?


  Householders can now use excessive force against intruders.
• How does the law provide justice for the householder in self-defense cases?


  By allowing them to use excessive force against intruders.
• What limitation is placed on householders regarding the use of force against intruders?


  They cannot use 'grossly disproportionate' force.
• What are the key points regarding substantive justice in the law of murder and self-defense?

  • Law of murder:
  • Implied mens rea allows conviction for murder with intent for GBH (Vickers case).
  • Does not provide justice for killing a fetus (AG Ref No3 of 1994).
  • Law of self-defense:
  • Justice based on the defendant's genuine belief about necessary force.
  • Unreasonable force can lead to murder conviction (Law Commission).
  • Martin's case allows excessive force for householders against intruders.
  • Householders cannot use 'grossly disproportionate' force.