Justice Flashcards
society has a sense of justice from a young age, the idea of…
fairness and equality
however there has been…
a struggle to create a common definition of justice shared by all.
justice is:
fairness and treatment of all based on rights, merits and equality
Perelman (1945):
justice means different things to different people based on their work, individual needs, merits, rank, legal entitlement and equality
four main theories of justice:
legal positivism
utilitarianism
natural law
social justice
what is legal positivism?
Hart -
if the law is made according to the correct procedures then it should be followed no matter what. this would be a just law, even if it conflicts with morality.
what is utilitarianism?
Bentham -
a just law is one that maximises happiness for the greatest number of people.
“The greatest good for the greatest number”
what is natural law?
Devlin -
just laws come from a ‘higher’ source. law and morals are linked and it is permissible to break legal rules that don’t conform to morality.
what is social justice?
Marx -
law is used to support political philosophies.
justice is measured in terms of wealth.
parliament is the supreme law maker.
Ao3 points for theories of law:
- hard to achieve justice in a pluralistic society
- social justice theory highlights divide between rich and poor e.g access to legal aid
what are the types of justice?
formal justice
substantive justice
distrubutive justice
corrective justice
what is formal justice?
justice is achieved through legal procedures.
legal institutions such as the police, courts and prison service ensure justice through the treatment of individuals and the procedures in place.
how does formal justice link to different areas of law?
LEGAL SYSTEM = types of sentencing - community sentence/fines etc.
LAW MAKING = judicial precedent: ratios are fair for everyone - DvS states all manufacturers = same justice.
HR = article 6 = fair trial - any article 6 cases.
Ao3 does the law achieve formal justice?
miscarriages of justice e.g Stephen Lawrence - racist police report
Hillsborough Disaster e.g police falsifying reports
what is substantive justice?
substantive areas of law such as criminal, tort and human rights try to achieve fairness in the tests to prove guilt/liability. these are the laws themselves e.g murder.
how does substantive justice link to different areas of law?
CRIM = in theft, dishonesty has no definition. no substantive justice - test had to change from Ghosh to Barton.
TORT = burden of proof on claimant as the defendant cannot prove tests.
HR = PAN - clear: can prove breaches or not.
Ao3 does the law achieve substantive justice?
- the law is not always clear - case law may be confusing
- Acts of Parliament follow rule of law
what is distrubutive justice?
the law ensures justice through fair allocation of resources among members of society.
‘fair’ allocation does not always mean ‘equal’.
how does distrubutive justice link to another area of law?
legal aid = giving money to those who cannot afford legal representation or advice - LASPO 2012, reducing legal aid.
Ao3 does the law achieve distrubutive justice?
- legal aid achieves distrubutive justice it gives advice to those who cannot afford it.
- in criminal cases, everyone receives a Duty Solicitor - important as liberty may be at risk.
- legal aid funding is being reduced.
what is corrective justice?
the law ensures justice by punishing wrong-doing. e.g sentencing (criminal), remedies (civil)
how does corrective justice link to other areas of law?
CRIM = sentencing - life sentence for murder
CIVIL = compensation/damages - special & general damages
Ao3 does the law achieve corrective justice?
- No - sentencing is not always agreed with.
- 6% of sexual assaults are actually convicted, the law says it will punish wrongdoing.*
