Justice

Question 1

society has a sense of justice from a young age, the idea of…

Answer 1

fairness and equality

Question 2

however there has been…

Answer 2

a struggle to create a common definition of justice shared by all.

Question 3

justice is:

Answer 3

fairness and treatment of all based on rights, merits and equality

Question 4

Perelman (1945):

Answer 4

justice means different things to different people based on their work, individual needs, merits, rank, legal entitlement and equality

Question 5

four main theories of justice:

Answer 5

legal positivism
utilitarianism
natural law
social justice

Question 6

what is legal positivism?

Answer 6

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.

Question 7

what is utilitarianism?

Answer 7

Bentham -
a just law is one that maximises happiness for the greatest number of people.
“The greatest good for the greatest number”

Question 8

what is natural law?

Answer 8

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.

Question 9

what is social justice?

Answer 9

Marx -
law is used to support political philosophies.
justice is measured in terms of wealth.
parliament is the supreme law maker.

Question 10

Ao3 points for theories of law:

Answer 10

• hard to achieve justice in a pluralistic society
• social justice theory highlights divide between rich and poor e.g access to legal aid

Question 11

what are the types of justice?

Answer 11

formal justice
substantive justice
distrubutive justice
corrective justice

Question 12

what is formal justice?

Answer 12

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.

Question 13

how does formal justice link to different areas of law?

Answer 13

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.

Question 14

Ao3 does the law achieve formal justice?

Answer 14

miscarriages of justice e.g Stephen Lawrence - racist police report

Hillsborough Disaster e.g police falsifying reports

Question 15

what is substantive justice?

Answer 15

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.

Question 16

how does substantive justice link to different areas of law?

Answer 16

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.

Question 17

Ao3 does the law achieve substantive justice?

Answer 17

• the law is not always clear - case law may be confusing
• Acts of Parliament follow rule of law

Question 18

what is distrubutive justice?

Answer 18

the law ensures justice through fair allocation of resources among members of society.
‘fair’ allocation does not always mean ‘equal’.

Question 19

how does distrubutive justice link to another area of law?

Answer 19

legal aid = giving money to those who cannot afford legal representation or advice - LASPO 2012, reducing legal aid.

Question 20

Ao3 does the law achieve distrubutive justice?

Answer 20

• 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.

Question 21

what is corrective justice?

Answer 21

the law ensures justice by punishing wrong-doing. e.g sentencing (criminal), remedies (civil)

Question 22

how does corrective justice link to other areas of law?

Answer 22

CRIM = sentencing - life sentence for murder
CIVIL = compensation/damages - special & general damages

Question 23

Ao3 does the law achieve corrective justice?

Answer 23

• No - sentencing is not always agreed with.
• 6% of sexual assaults are actually convicted, the law says it will punish wrongdoing.*