law and justice

• the meaning of justice

  fairness, (Perelman) not just to treat people the same way
• theories of justice


  distributive justice

  utilitarianism

  social justice
• distributive justice


  fair allocation of resources and responsibilities e.g taxes

  equality act 2010
• Aristotle 


  believed in wealth and honour in a proportionate way

  based on contribution made by each individual

  to allocate based on needs would be like rewarding the lazy as much as the hard working
• Aristotle vs Karl Marx

  • Aristotle would have regarded Marx's idea of unjust, it has the potential to reward the least productive and therefore least deserving
  • Marx thought Aristotle's model was unfair as it punished those who couldn't contribute through no fault of their own, such as people with disabilities
• utilitarianism 


  • the theory of justice focuses on the majority - about achieving the greatest happiness for the greatest number, even if some individuals lose out
  • (investigatory powers act 2016) - most extreme surveillance in the history of western democracy
  • government's argument - individuals rights to privacy is infringed to allow for the greater good of national security
• Jeremy Bentham 


  • social reformer who developed the theory of utilitarianism
  • the more action increases the overall happiness, the more valuable and the more it decreases happiness - the more reprehensible
• utilitarianism criticism 


  • rights of an individual may be sacrificed for the greater community happiness
  • the needs of the many outweigh the needs of the few
• John stuart mill 


  • focused more on the quality of the happiness, rather than the quantity
  • punishing wrongdoers also brings about happiness to the greatest number
  • mill argued that punishment in itself is evil as it involves inflicting pain and it can only be justified when it brings about a greater benefit
• social justice

  • the ability that people have to realise their potential in society
  • demands that people have equal rights and opportunities
• John Rawls 


  • described justice by presenting a hypothetical society where each member would distribute resources in an unbiased manner from 'behind a veil of ignorance' - no one would know in advance what their position in society would be
  • they would choose rules by giving everyone the right to the most extensive basic liberty
• the extent to which the law achieves justice

  • distinction made between procedural, substantive and corrective justice
  • hart referred to justice 'according to law' and 'justice of the law'
  • the first term relates to how laws are made and how the legal system operates, the latter term refers to the laws themselves
• substantive justice definition

  the content of the law itself must be fair and just
• corrective justice definition

  also known as restorative justice - this is when the law restores the imbalance that has occurred
• procedural justice definition 


  making and implementing decisions according to fair processes
• procedural/formal justice 


  • fairness in the legal system
  • considered from the aspect of legal aid availability, everyone has the right to access justice, it's important because its for people who can't afford legal representation who then have no right to a fair hearing (human rights act 1998)
  • (legal aid sentencing and punishment of offenders act 2012) - reduced the availability of legal aid, legal aid deserts have appeared
• substantive justice 


  • the mandatory life sentence - principle of proportionality, the more serious the offence, the harsher the sanction
  • some murderers are viewed worse than others, mandatory life sentence does not allow for proportionality, may lead to harsh decisions
  • (cocker 1989) - life sentence to euthanasia may seem disproportionate
• substantive justice defences 


  • self defence and automatism excuse liability all together
  • the law gives more favourable treatment to those who kill while suffering diminished responsibility or loss of control than it does those who's free will is overpowered by an external threat (howe)
  • far more sympathy if felt for the defendant in Gotts (pressured to kill mother) than in Byrne (sexual psychopath)
  • law commission has proposed adding duress as a defence that would reduce a conviction for second degree murder
• corrective justice 


  • sentencing and remedies
  • the criminal process
  • laws of evidence
  • appeals in criminal cases
• sentencing and remedies 


  • sentence factors - aim, aggravating and mitigating factors and sentencing guidelines
  • this can also be seen in reward of damages
  • (Jebson v ministry of defence) - damages reduces by 75% due to his contrabutory negligence
• the criminal process


  • trial by jury enables jury members to use their view of justice, rather than adhere strictly to the ruled of law and the evidence presented to them
  • (R v Kronlid) - claimed their actions were to prevent greater crime of genocide, jury acquitted them
• appeals in criminal cases

  • the defended may appeal against conviction on a point of law
  • under the Criminal Justice Act the prosecution may appeal against 'unduly lenient' sentences
  • convicted criminals appeal less frequently now that an appeal may result in a more severe sentence
  • AG ref No2 - today's sentencing guidelines don't apply to offences committed before new guidelines came into force
• miscarriage of justice 


  • injustices can rise when people re convicted for the crimes they didn't commit
  • The Tottenham Three - police evidence against them has been false
  • publicity of the case led to Criminal Cases Review Commission - review cases of those who feel are wrongfully convicted
  • Stephenson Lawrence - police failed to investigate case correctly, corrupt police obstructed original investigation
  • potential source of inputs - increasing use of technology by jurors, exchange messages with defendants, researching defendant's pasts
• rules of natural justice

  • two basic principles
  • the court must be impartial and must be seen to be impartial, judges should have no personal interest in a case (Pinochet Case)
  • each party to the dispute must have fair opportunity to present his own case and to answer the case of his opponent (Ridge v Baldwin)
  • ruled protect the interests of individuals against arbitrary powers of the state
• contract law and justice

  
  

  • formation of a contract
  • exclusion clauses
  • penalty clauses
  • third party rights
  • frustrated contracts
• formation of a contract

  • (Reveille Independent) - court had to consider if a contract had come into existence between commercial parties when they were apparently still in negotiations
  • court keen to preserve certainty and give attention to what it considered to be the reasonable expectations of honest, sensible business people
• exclusion clauses 


  • parties to a contract may try to limit their liability by relying upon exclusion clauses
  • (Olley v Marlborough Court) - the exclusion clause was invalid as it hadn't been brought to alleys attention when she booked in at reception
  • The Unfair Contract Terms Act restricts the use of exclusion clauses - a person cannot exclude liability for death or personal injury resulting from his negligence
  • act aims to prevent those with stronger bargaining power from taking unfair advantages of weaker parties
• penalty clauses 


  • how far a person can force someone else to comply with what they have promised
  • in UK law penalty clauses are either valid or invalid
  • (El Makdessi) - provisions were there to protect the legitimate interests of the buyer
• third party rights 


  • traditionally, a person couldn't sue unless they were a party to a contract
  • (Jackson v Horizon Holidays) - claimant succeeded in claiming damages for himself and family even though they hadn't made the contract
  • parliament passed the Contract Act, allowing third parties to make a claim where the contract expressively provided for this
  • parties to a contract have the right to exclude the Act from benefitting a third party
• frustrated contracts 


  • parliament legislated to ensure that where a contract is frustrated through no fault of either party, a just outcome can be reached
  • Law Reform Act enabled the courts to apportion the losses more fairly between the parties
• law of torts and justice

  • duty and breach in negligence
  • occupied liability
  • strict liability in torts
• duty and breach in negligence 


  • a duty of care will not be imposed unless it's fair, just and reasonable to do so
  • (Hill v Chief Constable) - HOL decided it wouldn't be fair for the police to owe a duty to every potential victim of a crime, it could lead to defensive policing parties, harsh on the claimant
  • (Nettleship v Weston) - unfair, learner driver liable for causing injury to instructor, leaving an injured party without a remedy is even bigger injustice
• occupiers liability 


  • (British Railways Board) - illustrates how justice is achieved when the claims of the two parties to the dispute are weighed in the balance
  • result appeared unjust, compensated the injuries boy
  • (Robert Addie) - ruled that he occupiers owed no duty to child trespassers
• strict liability in courts

  • (Rylands and Fletcher) - liability was imposed, even though defendant was unaware of the danger
  • (Abouzaid v Mothercare) - claimant used SL provisions on Consumer Protection Act to claim damages for personal injury
  • claimant only has to prove that they were injured as a result of using a fault product, easier to prove than negligence
  • court found that product supplier wasn't negligent, claimant still entitled to damages