Law and Justice Flashcards
How did Sir John Salmond define law
A body of principles recognised and applied by the state in the administration of justice
What are legal rules
common or statutory rules used to enforce basic rights and regulate society
What is justice often viewed as ?
the principle of fairness
How did the Oxford English Dictionary define justice ?
‘the quality of being morally right and fair’ and aims to achieve equality
What did Chaim Perelman say about defining justice ?
it’s hard because each person has their own idea of fairness so is subjective and if it’s achieved will be answered differently
What do naturalists say about justice ?
it comes from a ‘higher order’
Where does Aquinas claim laws come from ?
God
Where does Aristotle say laws come from?
Nature
What does Positivist Hart say ?
should be calculated in a scientific way - objective and empirical methods and not overlap with morality
Example of how does positivism believe you can provide justice without moral overlap ?
Euthanasia - R V Pretty widely believed mercy killing is moral however P argue provide justice as fair to punish killers
What do Utilitarians like Bentham say?
look at consequences of law and fundamental object of justice - maximise human happiness
What does Mill say (Utilitarian)?
justice is when the greatest happiness is given to the greatest number ‘majority over minority’
Where can the utilitarian approach be seen ?
R V Brown - society placed over the individuals interests , unfair as forgets indiv. rights
What do economists say like Karl Marx ?
society in a state of perpetual conflict bc of limited resources and therefore justice is not possible in a capitalist society
What does Karl Marx suggest?
those with wealth and power try to hold onto it by suppressing and exploiting the poor and powerless
What did John Rawl say about an agreed set of principles ?
should be 2 basic princ. : basic liberties (to all) and equality of opportunity and distribution
What are the 2 main issues when considering extent of justice achieved and what are they concerned with ?
Formal justice
Procedural justice
concerned w legal processes & institutions upholding law (police/courts/judges/prison/prob. service)
What did Dicey say about the rule of law these issues focus on ?
‘no person punishable except for distinct breach of law establ. in courts and also that no man is above the law, but every man, whatever his rank, is subject to ordinary law of the realm’
What did Dicey outline w what he said ?
justice is obtained when people are heard and there is an independent judiciary
What are some ways the CJs tries to ensure justice ?
trial by trial and jury ‘by our peers’
high standard of proof ‘beyond all reasonable doubt’ - not guilty unless 12 peers are sure
How was justice not provided by the jury in Sander V UK?
juror wrote a note raising concerns on other jurors racist remarks about D and they were influenced by own internal biases
How was Justice not achieved by the jury in R V Twomey?
jury was nobbled so threatened and intimidated into giving certain verdict
Why is access to justice and the financing of court cases important ?
indiv who can’t afford representation will be given legal aid as everyone has the right to representation
What has s.13 Legal Aid, Sentencing and Punishment of Offenders Act 2012 caused?
restriction of funding in crim cases so less people are eligible
What is the LASPO 2012 ?
everyone has right to free representation and legal advice at police station regardless of financial means
Why isn’t justice achieved by legal aid especially in civil cases ?
LA not provided in most civil and has been increase in litigants in person who cannot present cases effectively - unfair as should be offered to all if only some ppl receive not just
How does the appeals system help provide justice and who has access and case?
can correct injustices
D in Mag. have automatic right to appeal
D in Crown can apply to CoA (Kiranjit Ahluwalia)
Why does the fact we have appeals suggest?
justice in the first instance ain’t always achieved
What do case of Stephen Lawrence ?
internal racism in police meant case not handled properly and conviction not achieved
What is the Crim. Cases Review Commission 1997 do and what does it look at ?
review cases of those wrongly convicted or unfairly sentenced
looks at new evidence that may cast doubt on safety of og decision not innocence or guilt
How did the system fail Derek Bentley and Sally Clark
Bentley hung for wrongful conviction when Clark released turned to alcohol to cope and died of acute alcohol intoxication
What must the judges do for natural justice ?
uphold separation of powers by losing any connections in case
why was justice not served in Pinochet Case from Lord Hoffman ?
LH involved in appeal despite being director of Amnesty International (HR org.) and should’ve recused himself
How do the substantive laws aims to achieve justice ?
Murder tried to provide adequate justice for what’s happened so service mandatory life sentence to reflect severity
How do tariffs (minimum years to be served) reflect seriousness, case ?
Sean Mercer (killed Rhys Jones) minimum of 22 years reflect seriousness and deter
How does R V Inglis show the law can’t differentiate between murder and euthanasia ?
min of 9 yrs for killing son but could be seen as unfair she was even convicted
Why is it impossible in a pluralist society to feel justice has been served ?
everyone has different ideas of justice
mother of V may see death as the only justice equivalent rather than life imprisonment as they are still alive
What does Distributive Justice aim for ?
fair allocation of resources through anti-discrimination laws
How does Distributive justice work?
imposing minimum wage , reallocation of wealth by tax and welfare state
How does law struggle in distributive justice ?
BLM movement , tax evasion , racism
What is corrective justice and how does it work ?
correcting behaviour by using aggravation and mitigating factors to ensure sentence reflects crime
What does corrective justice do ?
people punished in proportion to act so is fair and just
When has corrective justice not shown and instead used as a deterrence ?
2011 riots given harsher sentences for looting to deter others
Why would utilitarians agree w deterring sentences ?
provides justice as it’s fair for the greater good however unfairly punish individ.
Conclusion ?
main aim - deliver justice although may fail
difficult to achieve in every aspect as ppl will disagree
only achieve for some ppl sometimes
on whole fairness at heart of ELS provide more than it doesn’t
