Law and Justice Flashcards
What is Law and Justice split into?
-Intro
-Sources of Law/ Key theorists
-Types of Justice
Explain Law and Justice: Intro
-DEFINE LAW:
Justice means fairness and equal treatment of all and applying legal rules in the same way to all cases
-CHAIM PERELMAN:
Chaim Perelman defines as “equal justice of all under the law”
-LORD WRIGHT:
Lord Wright states guiding principle of case to do justice, these are:
Formal
Substantive
Distributive
Corrective
What is Law and Justice: Sources of Law split into?
-Acts of Parliament
What would you write for Law and Justice: Acts of Parliament AO1
-Two sources of law in UK: Parliamentary law and Common Law
-Robert Hegarty states Justice will be achieved through application of law and equity, meaning that if the rules that have been created in Acts of Parliament are applied, Justice will have been achieved
What would you write for Law and Justice: Acts of Parliament AO3
-Acts of Parliament achieve justice as they’re made by MP’s who are representative of society
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-However, HofL aren’t democratically elected and have significant role
What is Law and Justice: Key Theorists split into?
-Jeremy Bentham
-St Thomas Aquinas
What would you write for Law and Justice: Jeremy Bentham?
Jeremy Bentham developed utilitarianism, believing the true purpose of justice and law is to achieve happiness for the greatest number. Evident in human rights, such as the IPA 2016 which is seen to achieve justice, as although human rights breached, it’s for greater good and protecting society from security risks.
What would you write for Law and Justice: St Thomas Aquinas?
St Thomas Aquinas believed for justice to be achieved, must fit with higher moral purpose, case of Purdy doesn’t sit well with this as although justice is achieved for individual, allowing euthanasia goes against religion, so higher moral purpose too subjective to apply to wider society, impossible to apply law in accordance with all higher powers believed to exist
What are the 4 types of Justice?
-Formal
-Substance
-Distributive
-Corrective
Explain Formal Justice…
-Formal Justice where procedural law put systems in place to ensure all cases are treated the same.
-Trial by Jury is an example in criminal law, this achieves justice as all criminal cases require a jury, it uses 12 people chosen at random, representative of society. However, Juries sometimes bad as a few strong-minded individuals take lead and apply their own views, and Jurors have no legal training, so common for them to misunderstand
-Juror understood in Clive v Ponting, where Jury refused to convict D as agreed with D’s motive, even though D admitted was guilty, so Juries not effective not trained
Explain Substantive Justice…
-Substantive Justice based on principle that justice achieved if legal rules are applied so that outcome is fair and just.
-Aristotle believed justice is due to a sense of proportionality and comparative merits.
-Most Tort Law cases follow this as main aim of compensatory damages to put C in same position as before tort. Although seems just on surface, not everything can be monetarily compensated for. So Tort law not completely effective
Explain Distributive Justice…
-Only achieved with a fair allocation of resources
-Karl Marx believed impossible to achieve justice in capitalist society because upholds interests of upper class. Uk doesn’t abide by this justice, as evident by institutionally racist police…
-Evident case of Sptehen Lawrence: police arrested five suspects one of whom charged, resulting in Macpherson Enquiry finding that police investigation “marred by professional incompetence and institutional racism”
-UK Justice system can never follow Karl Marx theory as not practical, would lead to eradication of leaders, causing society to no structure chaos, so this would not benefit UK for justice
Explain Corrective Justice…
-Based upon principle that justice achieved if wrongs corrected, main way ELS achieve this is through sentencing, which re-write the wrongs committed by crimes. Aggravating and mitigating factors allow judge to give sentence proportionate to the crimes so sentence will re-write crime committed.
-Not effective though as 58% adults who spend less than 12 months prison likely to re-offend
How would you conclude?
In summary, impossible to achieve true justice as term is subjective and impossible to satisfy all. What is possible is to apply justice that appeases majority, which would satisfy conditions of democracy we live under. This version of justice fails to be met in UK with those supposed to enforce the law: politicians, judges and police officers all use legislation and principles of justice to work in their favour: Dangerous Dogst Act; Steven Lawrence case; subjective nature of Judges who do not represent the public. If these foundations of law and justice can’t be applied and maintained, impossible to achieve any form of justice
