law and justice Flashcards
1
Q
Definition of justice
A
- the law purpose is to promote justice
- justice in its simplest sense is based on fair and equal treatment for all. it is something that we all would naturally demand from any law and would believe should be an integral part of any legal system
- justice can be seen in the idea of conformity, applying the rules in the same way to all people. this is the whole basis of the doctrine of “stare decisis”. however, even this can lead to situations which may be seen as injustices
2
Q
theories of justice
A
DISTRIBUTIVE JUSTICE
- is concerned with fair allocation of the benefits (E.G. money, property, family life) and responsibilities of life within an organisation
3
Q
Theories of justice
ARISTOTLE
A
- Aristotle argued that a just state will distribute its wealth on the basis of merit, giving to each according to his virtue and to his contribution to society
- this is a proportionate system: the worthiest, rather than the neediest, receive the greatest share. to allocate resources on the basis of peoples need would be unjust as, it would reward the lazy at least as much as the hard-working
- Aristotle did worry that a society in which there was a sharp division between rich and poor would not but just. there would be a need to minimise the gap to some degree
- corrective justice is needed to ensure that individuals can keep their entitlement. it is applied where one person, by his greed and self-interest causes a loss to another person -
- the role of the court is to ensure that the gains and losses of each party are equalled out so that the offender doesn’t benefit from his wrongdoing and that the victim doesn’t suffer loss. in this way, balance - the middle way Aristotle so often sought - is achieved.
4
Q
Theories of justice
THOMAS AQUINAS
A
- Aquinas argued, justice governs our relationships with other people ; it is the constant willingness to deal with other people as they deserve. the end result of justice is the common good, for the individual and for the community
- he agreed with distributive justice which governed by due proportion: people receive what they are due in accordance with their merit, rank and need.
- Aquinas also spoke of communative justice, which concerns the exchange of goods or services between people. This is governed by equality
- Aquinas based his doctrine on natural law. the idea that there is a higher order of law and that if the laws of a society follow this order, they will be just
- Aquinas thought that the higher order came form God
- Aquinas believed that a law that was contrary to human good was not true law at all. but such a law could still be obeyed if it would prevent social disorder
- he also believed that a law that was against God’s will and therefore against natural law, should be disregarded
- Aquinas, believed that natural law principles are an inherit part of nature and exist regardless of whether government recognises or enforces them
- governments must incorporate natural law principles into legal system before justice can be achieved
5
Q
Utilitarianism
JEREMY BENTHAM
A
- Bentham the originator of this school, argued that the major purpose of the law was to achieve the greatest number
- the most successful law in this sense would be one that in effect achieved the greatest all round good
- the idea was clearly a good one that has a lot of merit
- however, it also has an obvious defect, the greatest good might not always represent what is in everybody’s interest
- ignores the interest of the individual which would be sacrificed for the benefit of the majority
6
Q
Utilitarianism
JOHN STUART MILL
A
- developed this theme
- he linked utilitarianism to justice. justice includes respect for people, for property and for rights, as well as the need for good faith and impartiality
- all of these are consistent with the principle of utility, since their application brings the greatest happiness to the greatest number
- however, mill argued that punishment is in itself an evil as it involves inflicting harm or pain, and can only be justified where it brings a greater benefit, such as public order
- mill believed that the state should not interfere with people freedoms unless harm could be caused to others
7
Q
ECONOMIC VIEWS OF LAW AND JUSTICE
measuring happiness in terms of material wealth
A
- capitalist theories can be contrasted with socialist theories, and governments that tend towards either will introduce law which protect respectively either viewpoint.
- a government supporting capitalism will tend to interfere with individual rights in a minimal way and be very protective of property rights.
- in contrast, a socialist government will tend to be interventionist, employment protection, consumer rights are an example of this.
- socialism of generally hostile to property rights where they come at the expense of social justice.
8
Q
Economic views of law and justice
KARL MARX
(socialism)
A
- argued that capitalism is an unjust, philosophy, because it protects individuals with wealth at the expense of social needs of the many, and that therefore in any capitalist society all law is essentially unjust since it represents the means by which one class oppress the class or classes below it.
- Marxist view of justice, therefore are based on the redistribution of wealth
- a just outcome possibly for the many but tough luck on those from whom the wealth is redistributed
9
Q
Economic views of law and justice
JOHN RAWLS
(socialism)
A
- in rawls own words: “no one knows his place in society, his class position or social status, noe does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like”
- Rawls believed that, on the basis benefits and burdens would be distributed justly, i.e. fairly
- Rawls argued that two basic principles of justice would be evident within this society, firstly, each person would have “an equal right to the most extensive scheme of liberties for others”.
- secondly, social and economic inequalities may exist, but only: A) where they benefit the least advantaged member of society; and B) provided all offices and positions are open to everyone
- in employing the fiction of the “veil of ignorance” to develop a society based upon consent, Rawls was promoting a rights system: basic rights such as freedom of speech and association are inalienable: they can never be sacrificed for the common good
- this distinguishes Rawls from Bentham and the utilitarianist, who allow individual freedoms to be sacrificed where this is considered necessary to promote wider benefits for the greatest number.
10
Q
Economic views of law and justice
ROBERT NOZICK
(capitalism)
A
- Nozick defined society as: where the state has the least possible power to interfere with rights of the individual
- his theory is based not just on the ownership of property but also on the manner in which it has been gained
- in this way, Nozick would suggest that if the property has been gained fairly then the state should have no right to interfere
- therefore he argues, redistribution of wealth is unjust because it interferes with the basic individual
- he is fundamentally different from Rawls, who argued that inequalities may exist only where they benefit the most disadvantaged members of society
- Nozick places no such limits upon private ownership[: property justly acquired may not be appropriated simply as a form of redistribution of wealth, to reduce inequalities.
- he wrote: “no one has a right to something whose realisation requires certain uses of things and activities that other people have rights and entitlements over”.
- therefore, those in possession of property have an inalienable right to keeping it, and no competing authority can justly deprive then of their property no matter how just their cause may appear, this is a free-market, libertarian form of justice.
11
Q
To what extent does the law achieve justice
(is the legal system just)
JUSTICE IN PROCEDURAL AND SUBSTANTICE LAW
A
- procedural law provides the process that a case will go through (whether it goes to trial or not)
12
Q
Justice in procedural and substantive law
LEGAL AID
A
- legal aid is government money made available to support people to assert or defend their rights in court
- it is considered as an important element in promoting social justice
- in a democratic society all citizens have a right to access justice, to receive a fair hearing, and to understand their legal rights and obligations
- many people need help to access and use these rights
- legal aid has been a significant vehicle through which this help is provided in both the civil and criminal justice system
- CRITICISMS- budget for legal aid is limited this means it does not pay for help and representation for everyone who needs it
- budget has been fixed by the treasurer, this places limits upon the operation of a qualification to , legal aid
- entitlement to legal aid in both civil and criminal cases is means tested, demand for the service continues to grow, the budget however, does not
13
Q
Justice in procedural and substantive law
SENTENCING
A
- when judges or magistrates pass sentence upon an offender, they take into consideration a number of factors, these include aim of the sentence
- judges will consider both aggravating and mitigating factors
- as a result the sentence should be just
- the one sentence which it can be argued does not always produce justice is the mandatory life sentence for murder. this sentence has to be imposed on an adult convicted of murder
- this means that defendants with very different levels of blameworthiness receive the same sentence
- however, the judge is allowed to set a minimum period of time which the defendant must serve before he can be considered for parole
- this does provide, a greater degree of justice
14
Q
Justice in procedural and substantive law
JURIES
A
- trial by jury enables the case against a defendant to be decided by his peers, who are free to apply their views of justice rather than adhere strictly to the rule of law (ponting 1985)
- a jury does not have to give reasons, all they have to do is give a verdict of guilty or not guilty
- however, this can be unjust as the jury could be racially biased and unrepresentative
15
Q
Justice in procedural and substantive law
APPEALS
A
- in criminal cases heard in the magistrates court, the defendant may appeal either to the crown court against conviction or sentence, or to the QBD, part of the high court, by way of case stated on a point of law
- under the Criminal Justice Act 1998, the prosecution may also appeal against “unduly lenient” sentences
- in addition, under CJA 1972 the attorney-general may refer a point of law to the court of appeal where he wishes to question the judges direction that has led to an acquittal
- it is particularly important for those found guilty of a criminal offence to be able to appeal against conviction. it is obviously not providing justice if an innocent person is convicted
