Law And Justice Flashcards
1
Q
Substantive justice
A
- how the rules work in various aspects of law, criminal, contract, tort ect
2
Q
Procedural justice
A
- the idea of fairness in the process that resolves disputes and allocates resources. One aspect of procedural justice is related to discussion of the administration of justice and legal proceedings
3
Q
Distributive justice
A
- concerns the nature of a socially just allocation of goods. A society in which inequalities in outcome do not arise would be considered a society guided by the principles of distributive justice
4
Q
What the legal philosophers say about justice
A
- plato - justice is an overarching virtue. Every issue regarded as ethnical comes under it
- Aristotle - need to balance the exrtremes and have proportionality. E.g, your free to enter into any contract you want, but this should be balanced by the rights of the consumer
- st thomas aquinas - justice should govern our relationships with each other. It is for the common good that we deal with people as they deserve
- other forms of justice developed later:
1. Distributive justice
2. Utilitarianism
3. Social justice
5
Q
What is distributive justice
A
- the fair allocation of the benefits; money, property and so on, responsibilities, taxes, civic duties ect of life
- Aristotle said that a just state will award wealth based on their merit, virtue and what each person puts into society. Rewarding on need would be unjust as it is would simply reward those reward those who were either lazy or contributed nothing
6
Q
How would distributive justice work today in relation to benefits or social care for the elderly
A
- thomas aquinas argues that rewards should be distrusted according to merit, rank and need. There should be fair allocation and these should be proportional
- Karl Marx, the founder of communism said workers will maximise their abilities to contribute to the common wealth and each will receive according to their need
7
Q
What did Jeremy Bentham say
A
- the more an action increases overall happiness, the more valuable it is
- more interested in the consequence; the action itself is irrelevant. It seems maximising happiness as the object of justice
- main criticism is that it doesn’t take into account how it might disadvantage or inconvenience the minority of individuals
- the investigatory powers act 2016 can be seen as an example of this. It sets out in limited respects expands the electronic surveillance powers of the uk intelligence community and police
8
Q
John Stuart mill
A
- similar in his idea to Bentham in that agreed with utilitarianism
- argues however that the actions taken to promote happiness should rely on the quality of that happiness rather than just the quantity
- mills also argues that as well as utilitarianism, respect for people, property and the need to deal with each other impartiality were also needed for justice
- punishment, he said, should only ever be inflicted where it brings a benefit, such as in public order
- there have been further developments in utilitarianism: act utilitarianism, where one act in isolation increases the sum of human happiness for an individual and rule utilitarianism, where if everybody acted in the same way, the sum total of human happiness is increased for everybody
9
Q
Social justice and john Rawls
A
- social justice is the equal access to wealth, opportunities, and privileges within a society
- its about making society function better, providing the support and tools to help turn lives around
- John Rawls was a 20th century sociologists who published ‘a theory of justice’ in 1971 where put forward his thought experiment, ‘the veil of ignorance’
- Rawls argues that the two basic principles of justice should mean that:
1. Each person has the right to all the freedoms and liberties
2. Social and economic inequalities matter exist but only where they benefit the least advantages in society and provided these jobs are open to people of all backgrounds - basic human rights such as speech and freedom of association are central to justice and for the common good
- differs from utilitarianism because they are prepared to see individual freedoms sacrificed for the common goods
10
Q
To what extent does the law achieve justice
A
- this refers making and implementing decisions according to fair processes, so the main focus here will be on legal aid
- assuming everyone has the right to access justice and get a fair hearing, this means that in theory, those who can’t afford it should access legal aid
- problems: the Legal aid sentencing and punishment of offenders act 2012
- massive budget cuts to legal aid
- no more advice on welfare benefits, employment, housing, immigration and family
- whilst everybody, regardless of means is entitied to legal aid on arrest, after being charged they are means tested
- if found guilty, they may have to pay less legal costs
- constantly changing rules, legal aid ‘desterts’
- very little incentive for legal aid lawyers
- possibility then of miscarriages of justice
11
Q
What about substantive law
A
- this refers to the facts that the law in itself needs to be just
- mandatory life sentences - whilst most people view these as just, there is little room for manoeuvre
- some murders are ‘worse’ than others, yet the mandatory life sentence doesn’t take this into account. Not proportional
- in r v inglis, whilst the judge held the ‘mercy killing’ is murder, he referred to special guidelines in the criminal justice act 2013 and reduced her minimum tariff to 5 years on appeal
12
Q
Defences
A
- defences such as loss of control, diminished responsibility, survivors of suicide pacts, automatism and self defence are all generally accepted as just defences to premeditated killing
- However, duress has no longer been available since 1987
- r v gotts
- the law commission have suggested adding duress as a defence that would attract a conviction for second degree murder, but in 2016, the government rejected the idea of using style degree of murder
13
Q
Corrective justice
A
- relates to sanctions and damages
- in criminal cases, the judge will consider both aggravating and mitigating factors before passing what he considers as just sentence
- in Tort negligence cases, the aim is to return the claimant to the position he was in before the tort was committed, however it is also just to assess contributory negligence and deducting any of that form the award the claimant receives
- in contract, justice is served on the basis of the loss of bargain. Losses must be reasonably within the contemplation of the parties
- therefore, the concept of proportionality is very important
14
Q
Justice in the criminal process
A
- jury can decide on its own view of justice and has total freedom to so ignoring advice from the judge. Ponting case
15
Q
Appeals in criminal cases and miscarriages of justice
A
- appeals can be granted to the defendant either against conviction or on a point of law
- the prosecution can also appeal against what they might consider an unduly lenient sentence
- the attorney general can appeal to the court of appeal where they wish to question the direction that has led to an appeal
- whereas appeals are seen as achieving justice however, it may not always feel that way for the victim
- miscarries of justice can sometimes lead people to lose faith in the criminal justice system however
- the criminal cases review board exist in order to review cases where suspected miscarriages of justice have occurred
