Law and Justice essay

Intro:

Definitions:

Law - Sir John Salmond “a body of principles recognised and applied by the State in the administration of justice”

Justice - Oxford dictionary “the quality of being just or right” or “equal and fair treatment”

Lord Wright “what is just in a particular case is what appears just to the reasonable man”

P1

Philosophies of justice:

Distributive justice, utilitarianism and social justice

Distributive justice:

Concerned with the fair distribution of all the benefits and responsibilities of society.

4th century Aristotle argues that a society should distribute benefits such as wealth and jobs based on merit.

This means giving to people based on their “virtue” and contribution of society

Proportionate

Examples: ex turpi cause non oritur acta (no action can arise from a dishonourable cause) GNMS and contributory negligence

Criticism - individual rights and freedoms do not exist

Utilitarianism:

What makes an action right or wrong to a utilitarian is the usefulness or value of the consequence.

The more an action increases overall happiness, the more valuable it is and the more an action decreases happiness, the more reprehensible it is.

The principles of utilitarianism is that laws should seek to find the greatest happiness and pleasure for the greatest number of people.

Example: aim of custodial sentencing is to protect the public

Criticism: no absolute human rights - ignores minority groups - problematic in a pluralist society

Social justice:

The ability individuals have to realise their potential in society. Rawls describes justice as fairness and explains through a hypothetical society where each member would distribute resources and decide rules from behind a “veil of ignorance”.

In this hypothetical society, nobody would know in advance their life circumstances and would consequently only agree to rules that would protect everyone.

Rawls argued for two basic principles of justice: each person is entitled to basic freedoms and that their may be social and economic equality that exists but only where it benefits the least advantaged person as much as possible.

Example: access to justice - free legal aid given to those that need it

The types of justice?

Procedural, substantive and corrective

Procedural justice:

Rules and legislation.

Example: trial by jury

• Magna Carta

• Follows morals and ethics of a society - Trudi Warner

• But problematic - jury tampering (R v Young) + trials without a jury (Twomey) (CJA 2003 S.44)

Substantive justice:

The description of the laws that govern us.

These laws must be seen as fair and just.

Unjust law:

Vicarious liability - scape-goating - unfair blame

Negligence - unfairness/harshness to learners - Nettleship v Weston

Corrective justice:

The punishment of wrongdoers:

• unfairness of sentencing - Ursula Nevin

Conc.:

In conclusion, justice is clearly an aspiration of the law and is closely connected to it. A just legal system must be the aim of any society in order to achieve social obedience. However, it is unlikely that a “perfect” justice is possible - pluralism. In the case of the English legal system, justice can be seen as not being achieved due to the fairness throughout procedural, substantive and corrective justice.