6. Law, justice, and morality

• Purpose of law

  1. Law legitimates the exercise of power

  • Establishment of peace and order in a society
  • Regulation of social conduct by providing for effective and harmonious interaction between members of a society
  • Establishment of a good and just society order
  • Recognition and enforcement of fundamental rights and duties
  • Implementation of government policies
• 2. Law can be used to regulate the welfare of people

  • Promoting the wellbeing of members of society
  • Prevention of corruption, crime, and evil
  • Promoting wealth acquisition
  • Facilitating and controlling development
• 3. Law can be used to regulate property rights and interests

  • Protection of private property, land rights
  • Facilitation of economic development
  • ”governance” of rights and duties
• 4. Law may be able to be used to change values

  • Responding to social and technological change
  • Promoting particular types of change
  • Introducing external values
  • Theorists disagree on the extent to which law can change values, particularly in the absence of enforcement. But even in the absence of enforcement law may: provide a statement of aspirations or ideals, and provide an educative function
• Morals, ethics, and law

  1. Moral thinking

  • we ask moral questions when we ask about RIGHT or WRONG
  • moral questions are concerned with issues about OUGHT TO BE THE CASE
  • it is part of how we react as human beings
  • DANGER! moral thinking can be subjective judgments which are often simplistic and based on emotional reactions rather than reason
• 2. Ethical thinking

  • Questions about appropriate standards of conduct or behavior - custom, religion, and imagination
  • What standard of conduct ought to apply in all similar situations (universal standards)?
  • To achieve a just solution you must consider all parties' positions without prejudice or preconception
• 3. Legal thinking

  • questions about legal rules of conduct or behavior
  • how do rules apply to facts?
  • Usually not about what law should be!
• Relationship between law and justice

  • Moral thinking and ethical thinking form our opinions of WHAT JUSTICE IS, or WHAT IS FAIR in any particular situation
  • Legal thinking looks at HOW LEGAL RULES APPLY - legal rules may not be the same as what we think is FAIR or JUST
• Theories of justice

  • Consequentialism is an ethics theory that assesses the morality of an action based on its results. In the context of justice, consequentialism judges the rightness or wrongness of actions based on their effects on society or individuals.
  • What is justice? - divine command? natural law? positive law? mutual agreement? consequentialism?
• Plato's Theory of Justice


  Justice is a virtue that creates a rational order. Each part of society should perform its appropriate role without interfering with others. Justice involves harmony and balance, giving everyone their due and maintaining social order.
• Aristotle's View on Justice

  Justice is what is lawful and fair. Distributive Justice: Fair distribution of goods. Corrective Justice: Rectifying wrongs and inequities.
• Augustine's View on Justice

  Justice requires giving everyone their due.
• Thomas Aquinas' View on Justice


  Justice is a rational mean between different forms of injustice, involving proportional distributions and reciprocal transactions.
• Thomas Hobbes' View on Justice

  Justice is an artificial virtue necessary for civil society, arising from voluntary agreements in the social contract.
• David Hume's View on Justice

  Justice serves public utility by protecting property.
• Kant's Perspective on Justice

  Justice is respecting others' freedom, autonomy, and dignity. We should not interfere with others' voluntary actions unless they violate others' rights.
• Mill's Notion of Justice


  Justice is a collective name for social utilities that foster and protect human liberty.
• Rawls's Theory of Justice

  Justice emphasizes equal basic liberties for all and justifies socio-economic inequalities only if they benefit everyone.
• Types of Justice


  1. Distributive justice

  • concerned with the fair and proper distribution within a group or a community of things such as wealth, resources, and power.
  • The law is a means to ensure such a fair and proper distribution.
• Approaches to achieving distributive justice:

  • Egalitarianism - resources should be distributed equally
  • Desert theory - distributed based on what people deserve, e.g. punishment should be proportionate to the severity of the crime committed, rather than based on the criminal's social or economic background.; and
  • Utilitarianism - distributed to maximize welfare in society
• 2. Procedural justice

  • Procedural justice means ensuring that everyone gets a fair trial or hearing. A legal system is considered fair if it has protections to make sure that people accused of a crime or involved in a lawsuit get a fair hearing. This is based on the idea that people are more likely to accept decisions they think are fair, even if they don't agree with them.
  • The procedures used to make decisions are just as important as the outcomes themselves
• Rights of accused person

  • Presumed innocent until proven guilty
  • Informed in writing of nature and reasons for charge
  • Given adequate time and facilities to prepare defense
  • Defend in person or be represented by legal practitioner
  • Informed of evidence prosecution intends to rely on
  • Public trial before court of law
  • Trial begin and conclude without unreasonable delay
  • Be present when being tried
• 3. Retributive justice

  • The term "retributive justice" refers to how the state should respond to wrongful acts, especially in a criminal context. It is concerned with the appropriate responses to criminal and other harmful behavior. There are different approaches to achieving retributive justice:
  • (a) Desert theory: This approach deals with the offender as an individual to determine what they deserve.
  • (b) Utilitarianism: This approach considers the welfare of the community, including deterring other offenders, rehabilitating existing offenders, and ensuring compliance with the law.
• 4. Restorative justice

  • Restorative justice focuses on healing the victim and reintegrating the offender into the community, while retributive justice is concerned with determining the appropriate punishment for someone who has committed a wrongdoing.
• Legal problem solving - IRAC

  The key elements of an effective answer to a legal problem question are:

  1. the identification of the relevant Issues,
  2. 2. explanation of the relevant Rules ,
  3. Application of these rules to the given fact scenario.
  4. A logical and persuasive application should provide a Conclusion that is supported by the reasoning