law and justice Flashcards
law definition
Sir John Salmond ‘body of principles and applied by the state in the administration of justice’
justice definiton
just behavior and treatment
miscarriage of justice definition
failure of court or judicial system to come to a just conclusion
plato definition of justice
Harmony between the different sectors or classes in society
lord lloyd definition of justice
‘the means of a man in order to attain a good life’
Chain Perelman definition of justice
Justice cannot be studied logically – it is based on a persons subjective values
what are the 6 key ways he defines justice
(to each according to his…)
needs
works
merits
rank
legal entitlement
equality
what are the problems in defining justice (3)
Perelman argues that defining justice is impossible because it is subjective. This idea is reflected in Lord Wright’s view that justice is whatever appears just to a just person, similar to how reasonableness is judged by a reasonable person.
Some see justice as equality, but it often focuses more on equity—ensuring fairness by balancing the scales. For example, in tort law, compensation aims to restore the claimant to their original position before harm occurred.
Despite differing views on justice, the law seeks a balanced approach to serve everyone fairly. This is evident in jury trials, where 12 people provide an average perspective, and in sentencing guidelines that promote consistency in judicial decisions.
whats a counterpoint
This can be seen in Lord Wright’s definition of justice
“…the guiding principle of a judge in deciding cases is to do justice…What is just in a particular case is what appears to be just to the just man, in the same way as what is reasonable appears to be reasonable to the reasonable man”
Some people define justice as equality – but it is often more about equity, about allowing the scales of justice to become balanced
E.g. tort law remedies – compensation aims to put the claimant back in the position they would have been in had the tort not occurred
However, whilst we may all have our own views on how justice is served, the law needs to maintain a balanced, middle-of-the-road view to attempt to achieve justice for all
This can be seen through the use of jury trials (12 people deciding gives an average)
Also sentencing guidelines for judges which try to ensure consistency in sentencing practice
formal
justice is achieved when correct procedure ois followed in making and upholding the law justice is ac
what are the 4 types of justice
Formal
Substantive
Distributive
Corrective
substantive
justice is achieved through the substance and content of the law ensuring legal rules are just and fair
distributive
achieved by ensuring the distribution of resources in society is done fairly
corrective
justice is achieved by punishing thosw who have done wromg in order to rebalance the scales
FORMAL/PROCEDURAL JUSTICE examples (6)
police
courts/ judiciary
roles of juries
appeals
legal aid
the rules of law
police explanation/ example
PACE procedures ensure there is due process in the law and that suspects are given rights such as access to a solicitor which helps to ensure they are treated justly
courts/ judiciary
Courts/ judiciary foollow set procedusres and are governed by the rules in article 6 which protect the right to defend yourself in court including factors such as discolure of evidence
roles of juries
Ensures there is a ‘trail by your peers’ which supports just decision being made – including jury equity (e.g colson statute case)
appeals
Allowed which ensure any issue in the administration of justice are addressed- such as PACE processes not ebing followed or defences not being raised which should habe been (alhuwalia and diminshed resp- killed husband abusive first murder then manslaughter on appeal)
legal aid
Provided to achieve access to justice and help those on low income oay for a solicitor/ barrister to help them defend themsleves which increases the chance of getting justice. Former hustice secretary ken clarke ‘ I genuinly believe access to justce is the hallmark of a civilised society’
the rule of law
Followed meaning no one is above the law and no one is below the law- e.g in a and others the discriminatory laws doe terror suspects were declared incompatible due to treating suspects as if they were below the law
what is substantive justice
whether the substance of legal rules deliver justice
why does this exist (4)
AR must be voluntary
MR must be present- and a defence will take away this making the law fair
Howeverm defences such as intoxication and insanity may make the law unfair
Different level of mens rea for more serious defences (e.g gbh s20 v s.18)
what can we talk about from tort law in this (2 cases)
Negligence requires a duty of care which is only imposed if its ‘fair, just and reasonable’ (Hill) and uses objective test for breach (standard of reasonable man- Blyth)
Occupiers liability imposes a duty to protect forseeable injuries to tresspassers (herrington v brb)
Strict Liability rules for Rylands v Fletcher and vicarious liability allow a remedy for claimants suffering injury
what are the 3 issues with this
Majewski rules on intoxication
Strict liability in criminal law
Strict liability in tort law (e.g. vicarious liability)
Majewski rules on intoxication explanation
Recklessness of getting drunk satisfies mens rea
Majewski rules on intoxication- how would this lead to a lack of justice
This is not just because the mens rea requires recklessness towards the crime (e.g recklessness to apply to unlawful force for battery)- therefore reckless behaviour towards drinking/ taking drugs doesn’t properly satisfy the mens rea)
Strict liability in criminal law explanation
OFFENCES CAN BE COMMITTED WITH ONLY THE ACTUS REUS BEING PRESENT. THE DEFENDANT’S STATE OF MIND IS IRRELEVANT.
Strict liability in criminal law - how would this lead to a lack of justice
However, these can be very harsh on defendants- e.g in Storkwain, the pharmacists were unaware the prescritions were forgeries, so the D treated unjustly in being dound guilty)
Strict liability in tort law (e.g. vicarious liability) explanation
Vicarious liability makes defendant employers respondisbpe for the tortious actions of their employees
Strict liability in tort law (e.g. vicarious liability) - how would this lead to a lack of justice
However, this is unjust and unfair as the employers werenr the ones who committed the tort- and the fsct this can also include criminal behaviour (e.g lister v hesley hall) leads to injustice for employers
what is distributive justice reflected in
Anti discrimination laws (equality act 2010)
Minimum wage
Tax and welfare system
what are the 2 issues within distrubtive justice
Class / Wealth
Gender / Race / Disability
Class / Wealth explanation
Often those with wealth and status avoid facing justice for their crimes
Large corporations and rich individuals often go unpunished for tax evasion offences as these are investigated sparsely by police who focus on blue collar crime (e.g. committed by the working class)
In addition those with wealth can often pay for better legal representation to avoid punishment
those not as wealthy may have to turn to crime
Gender / Race / Disability explanation
Women are disproportionately victims of crime with low conviction rates – e.g. domestic violence and rape
MacPherson report and incidents leading to BLM movement show institutional racism of the police
Baroness Casey Report (2023) found Met Police to be “institutionally racist, sexist and homophobic”
Anti-discrimination laws for workers are criticized for being too weak at preventing incidents – being more reactive than proactive
what two things is corrective justice seen in
Sentencing offenders in criminal law
Providing remedies to claimants in tort law
Sentencing offenders in criminal law explanation
Juwtice is delivered through the ladder principle of sentences increasing as seriousness of crime increases
Justice delivered for defendants too as aggravating and migitating factors taken into account
Various aims of punishment through community sentences
Providing remedies to claimants in tort law explanation
Theb aim of tort laws remedies is to put the claimant back into the position they would have been if the tort hadnt occurred
However, the defence of contributpry negligence helps to provide justice to defendants too where compensation is reduced if the c is partly responsble for the injuries (sayers v harlow)
what are the 2 issues with this
High reoffending rates show sentencing does not always “correct” an offender
inequality of bargaining power can lead to injustice for the weaker party - especially if a settlement is negotiated
High reoffending rates show sentencing does not always “correct” an offender statistics
Reoffending rates- 25-30%
For adults released from prison for sentences under 12 months, the reoffending rate is 54%
inequality of bargaining power can lead to injustice for the weaker party - especially if a settlement is negotiated- use example from human rights
e.g a claimant may not be able to get all they deserve if their lawyer is not as forceful as the defendants lawyer
Steel and Morris:
ECtHR decided there was a breach of article 6 fair trail where mcdonalds had access to more resources to pay for legal representation- meaning there was no equality of arms
what does natural justice and rule of law state
“All equal before the law and in order to achieve justice we must all have equal access to the courts.“
Nobody is above the law or below the law
Above the law - monarchs, politicians, celebrities can still be punished
Below the law - everybody has access to justice through the courts and protection through human rights
who do you need to name drop here
Aquinas (God) / Aristotle (Nature)
Any law which does not derive from God/nature is illegitimate and does not need to be followed
So immoral or unjust laws could just be broken
who are the people for distributive justice
aristotle
karl marx
what does aristotle say
justice is proportionality
whats an example of this
A sentence is proportional to the crime
GBH s.20 = 5 years, s.18 = Life because it involves specific intent
what does karl marx say
distributed according to need
“from each according to his ability, to each according to his need”
state is ruled by a dominant (capitalist) class who exploit the workforce (proletariat) and is therefore inherently unjust
where can we see this
Can be seen in NHS / welfare payments
Also said crimes of the wealthy/ruling classes are ignored as police/courts focus on investigating and punishing crimes committed by the lower classes (e.g. violence/theft)
whats an example of natural justice and being treated below the law
A and Others- being held indefinitely without trail is against the rule of law as the defendants are being denied rights so treated as if theyre below the law
whats an example of natural justice and being treated above the law
Partygate and boris- those in power may be treated as if theyre above the law
whats a case example in distributive justice (think negligence)
Sayers v Harlow- supports justice through distribution according to contribution in cont negligence
what is Utilitarianism
Maximise human happiness – greatest good for the greatest number of people
Diminishing pain and increasing pleasure for the majority of people
Believed in minimal legal intervention of the state – unless harm is caused to another
who did he disagree with
Disagreed by Kant who states that if an act is wrong it is wrong regardless of the benefit/happiness of others (e.g. torture)
It is not right to disregard the interests of an individual for the benefit of the majority
who are the two theorists for social justice
John Rawls
Robert Nozick
what does John Rawls state
Justice is objective fairness (judged from the Point of View of someone with no interest in the outcome)
We need to create an ‘original position’ in society where there is a ‘veil of ignorance’ in regards to people’s views about their place in society (class, background, abilities)
If this was in place, everybody would demand universal freedoms and rights for everybody and equal opportunities
what does Robert Nozick state
State should not interfere to redistribute wealth acquired through legitimate means
Minimal state & no interference in private lives unless wrong is done to others
whats a case backing utilitarianism
R v alhuwania- killed her husband due to domestic violence- seen as justifiable based on making society safer and happiness of others
whats an act backing social justice
Equality act- anti discrimination so everyone is treated equally (rawls)
whats a case backing this
R v martin- household owners have more protection over their property
