Law and Justice

Question 1

Define ‘law’.

Answer 1

A binding contract that all are subject to which delineates obligations, prohibitions and procedures.

Question 2

Define ‘justice’.

Answer 2

Refers to how the law achieves fair and equitable decisions and treatment.

Question 3

What are Chaim’s six iterations of justice?

Answer 3

1) To each according to his needs
2) To each according to his merits
3) To each according to his works
4) To each according to his rank
5) To each according to his legal entitlement
6) To each equally.

Question 4

What are the four types of justice?

Answer 4

Formal justice
Substantive justice
Distributive justice
Corrective justice.

Question 5

What is formal justice?

Answer 5

Refers to the extent to which the procedures and institutions of the law achieve justice.

Question 6

What is substantive justice?

Answer 6

Whether the rules of the law produce justice.

Question 7

What is distributive justice?

Answer 7

Whether the law is fair in the way it apportions resources.

Question 8

What is corrective justice?

Answer 8

Concerns how the law deals with wrongdoers.

Question 9

What are the five theories of law?

Answer 9

1) Natural Law
2) Utilitarianism
3) Positivism
4) Veil of ignorance
5) Rule of Law

Question 10

Define natural law with a key proponent.

Answer 10

Refers to law that derives from God or other higher natures. St. Thomas Aquinas believed that all law derived from God and that laws that didn’t should not be followed.

Question 11

Define utilitarianism with a key proponent.

Answer 11

Law is just when it provides ‘the greatest happiness to the greatest number’. Proposed by Jeremy Bentham.

Question 12

Define positivism and give a key proponent.

Answer 12

John Austin defined ‘positivism’ as when a law’s justice derives from its method of implementation.

Question 13

What is the veil of ignorance who proposed this idea?

Answer 13

John Rawls claimed that humans, being rational and empathetic, would opt for a society that is more just when placed behind the veil of ignorance and in the original position.

Question 14

List the three components of the Rule of Law.

Answer 14

1) No punishment without law
2) No one is above the law
3) Common law protects citizen’s rights.

Question 15

What did Aristotle say about the rule of law?

Answer 15

‘The Rule of Law, it is argued, is preferable to that of any individual’ - Politics Book III.

Question 16

Give two ways the law could be said to create justice.

Answer 16

1) Use of juries in criminal cases - from a collective justice perspective is fair as it allows for holistic consideration of the circumstances d. is in to produce a just and fair decision - however the use of juries may lead to the law becoming inconsistent as different juries may return different decisions with the same facts - e.g. R v. McGrath - decided not to allow self-defence - it is entirely possible that a different jury would have allowed the defence on the basis she was a vulnerable girl under attack - Lon Fuller would have regarded this as unjust as he claimed that inconsistent law is not effective in administering justice - The Morality of the Law (1964).
2) Whilst s.43 Crime and Courts Act 2013 has given homeowners more flexibility regarding the use of force they may use - it has led to criticism, from a substantive justice perspective, that it may be abused and threatens human rights - e.g. Collins v. Home Secretary - claimed it violated Art. 2 - however a corrective justice would claim it is just as it allows homeowners to protect their families - though the HC made it clear that s.43 did not allow ‘carte blanche’ use of force and that actually, it was not a ‘license to kill’ - thus ensuring it doesn’t become a loophole - making it fair.

Question 17

Give two ways the law could be regarded as unjust.

Answer 17

1) Access to justice has been curtailed in recent years - is unjust as it means there is limited ability for ordinary people to bring their case - e.g. ‘justice in England is like the Ritz Hotel - open to all’ - which would suggest that anyone can gain justice but the quality of the service to gain justice depends on personal finances - e.g. Steel and Morris v. UK - inequality of arms - goes against Chaim Pearlman’s ‘to each according to his legal entitlement’ principle and thus is unjust.
2) Crimes of strict liability could be regarded as unjust as they allow the police to abuse their powers and ‘entrap’ the defendant - e.g. Winzar v. Chief Countable for Kent - drunk on a highway - utilitarians such as Bentham would claim that this is unjust as crimes of strict liability, unlike fault based crimes, are not determined by their social stigma - thus going against the ‘greatest happiness for the greatest number’ principle - thus unjust.