OCR A Level Law - Law and Justice

Definition of Law

John Austin - A set of commands issued by a sovereign power and enforced by coercion

What is Plato's definition of justice?

Harmony between different sectors of society

What is Aristotle's definition of justice?

The need for proportionality and achieving a middle ground - a balance between the extremes

What is Aquinas' definition of justice?

Dealing with people as they deserve

Who pioneered utilitarianism?

Jeremy Bentham + John Stuart Mill

Definition of Utilitarianism

Actions that create happiness are more valuable, actions that decrease happiness are reprehensible

What was the Investigatory Powers Act 2016?

- Required operators to retain communication data for a year

- Can be accessed by police and other authorities without a warrant

How does the Investigatory Powers Act 2016 align with the concept of utilitarianism?

Breaching right to privacy for the greater good (e.g terrorism)

What is a disadvantage to basing justice on utilitarianism?

Objective standard / test

- Doesn't take into account the subjective element that every individual has

- E.g Drug taking, homosexuality

What is procedural justice?

Measures where justice is achieved based on the extent to which the procedures within our legal system achieve justice

Procedural Justice - Jury Trials (JUSTICE)

- Upholds principle of trial by peers

- Democratic

- R v Ponting - prevented man from being convicted for releasing gov information

- Protection from authoritarian gov

- Represents interests of society -> cross section of society

Procedural Justice - Jury Trials (INJUSTICE)

- No education requirements needed -> lack of legal legitimacy

- Potential bias - subjective

- Jury equity - opinions not based in law

- Secrecy of jury room (R v Young)

- Jury nobbling - can be bribed / threatened

Procedural Justice - Appeals (JUSTICE)

- Opposite verdict / decision

- Less harsh sentence

- Changes in damages / remedies

- Gives chance for unfair verdicts / decisions to be overturned

Procedural Justice - Appeals (INJUSTICE)

Guilford Four Case:

- Four Irish people wrongfully convicted

- Jerry Conlan - served 16 years

Maguire Seven:

- Wrongfully accused

- Served 14 years before appeal

Procedural Justice - Legal Aid (JUSTICE)

- Gov funding for cases

- Helps fair trial -> proper representation

- Means Test = £2,657 / month (civil) , £31,800 (criminal)

- High enough level for most people to qualify

- Merits test - quality of case

Procedural Justice - Legal Aid (INJUSTICE)

- LAPSO 2012 - cut gov funding

- Justice not accessible

- Legal aid deserts (civil law) -> only given in family or housing cases

- Lower levels of funding for civil cases

Procedural Justice - Criminal Cases Review Commission (JUSTICE)

- Look into miscarriages of justice + refer to COA

- Research + represent those who are victims

How does natural law work alongside procedural justice?

- The court must be impartial

- E.g R v Pinochet (1998) - claimed immunity from being extradited, denied by 3-2, one judge had ties to Amnesty International

- Each party needs fair opportunity to present argument

What is substantive justice?

Measures whether justice is achieved based on the actual laws in place

How do sentencing guidelines achieve justice (SJ)?

- Follows principle of proportionality - more serious crime, harsher the sentence

- Murder = mandatory life sentences - lose freedom - just

- GBH s18 max sentence = life discretionary - specific intent crimes

How are sentencing guidelines unjust (SJ) ?

- Assault + battery have the same maximum sentence - 6 months

- ABH s47 and GBH s20 = same maximum sentence of 5 years

- Some argue murderers should be given death penalty

- Fixed term sentences - may only have to serve half

How do defences achieve justice (SJ) ?

- Diminished responsibility - consideration of the D's RMC

- Loss of Control - partial defence - recognises they are not fully culpable

- Duress - murder not available - shouldn't be able to decide life and death

How are defences unjust (SJ) ?

- Self-defence - all or nothing, proportionality, favours D

- Loss of control - triggers too wide

- Partial + full defences - unjust for the V

How do exclusion clauses achieve justice (SJ) ?

- Personal injury not allowed to be covered - just for V

- Must not be too broad - just for V

- V's may not be as legally literate - makes sure they are protected by the law

How are exclusion clauses unjust (SJ) ?

- May be unjust for D's - lots expected of them

- D shouldn't be able to escape liability

What is corrective justice?

Reversing the imbalance suffered by the victim through means of reparation

How do the aims of sentencing achieve justice (CJ)?

- Reparation - offender has to right their wrong e.g may have to return stolen goods or pay for any criminal damages

- Punishment - may be corrective if this aligns with the victim's vision of justice - in fatal offences, family may feel justice

How are the aims of sentencing unjust (CJ)?

- Rehabilitation - prioritises and focuses on the offender rather than the V

- Punishment + Deterrence - focuses on the safety of society rather than the V

How do aggravating factors achieve justice (CJ)?

- Crime potentially more traumatic for the V + deserves of a higher sentence

- E.g Weapon used or the V is vulnerable

How are mitigating factors unjust? (CJ)?

- Reduces sentence / reparation

- E.g First time offender -> V still the victim of the crime despite it being the D's first time

How do sentencing guidelines achieve justice (CJ)?

- Custodial sentence - D loses some human right (e.g freedom) as a result of their wrongdoings on the V

- Community sentences - reparations made to the V / society

How are sentencing guidelines unjust (CJ)?

- Custodial sentences - may not be the V's vision of justice, fatal victims not going to feel reparation

- Fines - money not representative of level of trauma + not given to the V

Does civil law achieve justice (CJ)?

- Aim is to put the V in pre-tort positions

- Balancing fairness to both parties

- Contributory negligence = damages reduced by % of C's involvement (Jebson v MOD - 75% reduced)

- Can be fully reduced - consent defence

Are there instances where civil law does not achieve justice (CJ)?

- Instances of personal injury

- Damages cannot put the C back in their pre-tort position

How does contract law achieve justice (CJ)?

- Puts the C back in pre-contractual position

- Can be put in post-contractual position -> specific performance

- Correcting the wrongs of the other parties breach

- Victory Laundry v Newman = D did not have to compensate for the C's loss of earnings as they were unaware of the other contracts in place

What is distributive justice?

Measures whether justice is achieved based on the distribution of resources in our legal system

What are the resources in our society (DJ)?

- Housing

- Money

- Water

What is Aristotle's view on DJ?

- A just state distributes wealth based on merit and contribution to society

- The worthiest receive the greatest share

- To allocate based on needs rewards the lazy

What is Aquinas' view on DJ?

- Principle of proportionality

- People should receive what they are owed according to their merit, rank, and need

- Wrong to pay workers an equal amount for unequal work and vise visa

What is Marx's view on DJ?

From each according to his ability, give to each according to his need

What is Perelman's view on DJ?

Justice is based on subjective values:

- Merits

- Needs

- Rank

- Quality of work

- Legal entitlement

How can Aristotle's view be evaluated (DJ)?

- Worthiest do not always receive the greatest share

- Not everyone who doesn't work is 'lazy' e.g physical disability, childcare

- Simplistic view - outdated + not relevant to society today

- Don't follow this method in our society

How can Aquinas' view be evaluated (DJ)?

- View may be outdated

- Based too much on religion - unfair in society today

How can Marx's view be evaluated (DJ)?

- Ones who contribute more may feel at a disadvantage

- Might not fit the Capitalist society we live in

- Aristotle would disagree

BUT:

- Tries to balance fairness

How can Perelman's view be evaluated (DJ)?

Subjective approach - unfair + problematic -> people may disagree

BUT:

- Takes into account more factors

- Fits a more modern society

How do minimum wage laws achieve / not achieve justice (DJ)?

Aristotle:

- Do not follow his ideas of justice - aren't based on merit

- BUT this is only legal minimum - jobs that are classed as more valuable have higher salaries

Aquinas:

- Paying different based on age - not just

How do tax thresholds achieve / not achieve justice (DJ)?

Marx:

- Those earning over a certain wage (ability) pay more PAYE - 45% for £125,140

- Argue that richer should pay more - no fairness

Perelman:

- Those earning more have higher rank

- Should pay more tax

How does s11 Equality Act 2010 achieve / not achieve justice?

Aquinas:

- Protected characteristics - workers now payed equally based on sex

- Not discriminated against

Perelman:

- Equally paid + protected based on protected characteristics

- Legal entitlement - statutory