Law and Justice

• Meaning of law

  • very difficult to provide an adequate definition, but there is a working definition
  • "a set of rules and principles created and enforced by the state"
  • it is a body of official and regulations, generally found in constitutions, legislation, judicial opinions
  • used to govern a society and control the behaviours of the members
• Meaning of justice

  • basically means fairness or even-handedness
  • it is important in a free democratic society that fairness and tolerance is observed by the law
  • there are two forms of justice: Formal and Substantive justice
• Formal (or procedural) Justice

  • the whole process of enforcing legal rules in formal justice
  • it relates to how laws are made and how the legal system operates
  • may be defined as "the following of legal rules and treating like cases alike"
  • it is about applying the rules equally to everyone, it is the fundamental principle that no one should be above the law and those who administer the law should do it without prejudice, bias or fear
  • those who administer the law must do so impartially without preference for the rich, the powerful, or members of the elite
• Formal justice

  • it says nothing as to the content of the law, it will be achieved if the rules are followed no matter how harsh or unfair the results
  • it will be achieved no matter how immoral the law so long that it is applied equally to all people and created by an official source, it is a very narrow definition of justice
• Formal justice examples

  • the operation of the doctrine of precedent, this system ensures that cases are applied on a like for like basis so that everyone if treated equally and fairly
  • the process of statutory interpretation, here the court are attempting to give effect to the will of the supreme court law makers and Parliament
  • Sentencing procedures, is dictated by law and not left to the judge to do as he wants, so it is a fair and uniform procedure where similar crimes are treated in a similar manor
  • Provision of appeals, appeals are allowed when there is evidence that justice has not been applied fairly to ensure that law is applied evenly
• Substantive justice

  • this considers whether the rules themselves are fair and in many cases the rules are the issue, rather than whether they have been applied evenly
  • the problem with substantive justice is what does the word "fair" mean in any one situation and how do we decide what is just and fair
• Examples of substantive justice

  • the decision in R v R (1991) criminalised rape within marriage and illustrates substantive justice well
  • when the judges changed the law, their decision was welcomed and substantive justice was achieved
  • But D was technically convicted of a crime that did not exist when he committed it, meaning that the change of law promoted justice in society, it was an injustice for him
• Abstract theories of justice

  • the difficulty in the definitions of justice is deciding what is fair
  • there are many theories on this
• Aristotle's theory of justice

  • a just law was one which allowed individuals to fulfil themselves in society, and ensuring all cases were treated alike
  • he believed in 'Distributive justice', which attempts to share out the good and bad things" amongst society
  • this recognises that not all members of society have the same advantages and that burdens and benefits should not be given out equally
• Examples of "distributive justice"

  • compensation schemes in tort law where damages would be calculated to what the claimant had lost rather than a standard amount to all
  • this also includes contributory negligence (Brannon v Airtours)
  • the "neighbour principle" from Donoghue v Stevenson demonstrates balance and seeks to achieve fairness in a way which isn't liability strict
• Bentham's Utilitarianism

  • Utilitarianism is based on the idea that society should work towards the greatest happiness for the greatest number of people, even if this is at the disparity of the majority
  • they look at justice through the consequences, and if a rule maximises happiness or well-being for the majority, then it was just
• Examples of Utilitarianism

  • policy decisions such as those in Hill v Chief Constable of West Yorkshire where the claimant was refused compensation as it would have "opened the floodgates"
  • this was for the greater good as the police did not have to deal with endless claims
• More examples of utilitarianism

  • Miller v Jackson in private nuisance, which denied an injunction to stop a cricket club playing on their field as balls kept going into the claimants garden
  • the court felt a much greater need was being served by allowing the popular sport to be played and outweighed the inconvenience to the claimant
• Criticisms of the Utilitarianism

  • the willingness to trade the unhappiness of the minority against the happiness of the majority,
  • the approach focusses only on justice for the community as a whole, and leaves out justice for individuals or minority groups
  • also how is happiness or welfare measured?
• Rawls theory of justice

  • he approached the question of justice through an imaginary situation where the people who make the laws do not know what their position in society is
  • this is known as the 'veil of ignorance' and designed it so to ensure that the ideas put forward really are the best for all members of society, since they will not disadvantage sections of society as it may be themselves
• extension on Rawls theory of justice

  • he believed that his theory would lead to an equal distribution of rights, powers and freedom
  • a basic set of liberties, and equality
• Comments on Rawls theory of justice

  • it would probably achieve a good degree of fairness but has been extensively criticised of it's artificially and unworkability
  • his theory is based on human perfection, which is perhaps only an ideal
• Does the law achieve justice?

  • have to give examples where the law has and hasn't achieved justice
• rules of statutory interpretation

  • if a judge adopts a literal approach to the interpretation of a statute the law is being applied uniformly and the same law will be applied to all in the same way
  • the system of precedent follows this and ensures that justice is applied evenly
  • the ability to distinguish cases means judges can take into account subtle differences in cases and still apply law fairly
• Sentencing policy

  • criminal sentencing polices ensure that all wrongdoers are treated equally
  • factors such as the type of offence, it's seriousness, the impact on the victim, if it is a repeat offence will all effect the judges ability to sentence fairly and proportionally
  • the Court of Appeal is constantly reviewing the application of sentencing policy in their decisions
• the law is sometimes slow to respond to accusations of injustice

  • took a long time for the court to react to the fact that under the law of provocation in murder, women who kill were at a disadvantage as their reactions tend to be less "explosuve" then a mans and therefore might find it more difficult to meet the "sudden and temporary" requirement
  • wasn't until cases like Ahluwlla and Thornton that inroads were made
• test for recklessness

  • the test for recklessness was an objective test, which means the D would fill the mens rea even if he did not understand the risk but the average person would, Caldwell
  • this creates injustices, especially for those who are of low intelligence as in Elliot v C
  • this was eventually corrected in R v G which installed Cunningham recklessness which was subjected