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Unit 3 Section A > law and justice > Flashcards

law and justice Flashcards

1
Q

Justice

A

Fairness, equality or handiness.

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2
Q

Law

A

Not only substantive law but procedural rules and principles by which laws are made and administered.

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3
Q

1st attempt to define justice

A

Plato - suggested justice is harmony between each section of society. Unjust to steal or to not give someone what you owe them. Reflected in theft act 1968 and contract law.

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4
Q

Plato’s theory continued by…

A

Aristotle - Stressed need for proportionality + law achieving balance, seen in freedom of contract and protection of consumers.

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5
Q

Distributive justice

A

Fair allocation of benefits and responsibilities of life.

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6
Q

Aristotle’s theory of distributive justice

A

Just society would share out the “good and the bad things” within society. E.g. right to vote + pay taxes.

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7
Q

Karl Marx’s theory of distributive justice

A

Communism - “from each according to his ability, to each according to his need” E.g. state benefits.
Has the potential to reward the least deserving.

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8
Q

Chaim Perelman’s theory of distributive justice

A

Study concluded that justice can’t be studied logically as its based on subjective values.

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9
Q

Utilitarianism

A

Developed by Jeremy Bentham - the more an action increases overall happiness the more reprehensible it is. Maximising happiness is the aim of justice.

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10
Q

Criticisms of Utilitarianism

A

Interest of an individual may be sacrificed for greater community happiness. Shamima Begum

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11
Q

John Stuart Mill’s theory of utilitarianism

A

Quality of happiness rather than quantity. E.g. Speed limits

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12
Q

Social Justice

A

Equal rights and opportunities for everyone.

Means testing for legal aid and maintenance loans.

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13
Q

Robert Nozick’s theory of social justice

A

Entitlement theory relating to property. No limits on private ownership but it shouldn’t be appropriated as a form of redistribution of wealth to reduce inequalities.
E.g. privatisation of state facilities

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14
Q

John Rawls theory of social justice

A

Hypothetical society where each member would distribute its resources behind a “veil of ignorance”
would allow for equal rights to basic freedoms E.g. ECHR.

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15
Q

What must we consider when looking at the extent to which the law achieves justice?

A
  • Procedural justice
  • Substantive justice
  • Corrective justice
  • Natural justice
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16
Q

What is procedural justice?

A

Making and implementing of decisions according to a fair process.
E.g. Legal aid - everyone has the right to receive a fair hearing & understand their legal rights.

17
Q

Legal Aid

Procedural justice

A

Ken Clarke - “I genuinely believe access to justice is the hallmark of a civilised society”

18
Q

Legal Aid Sentencing and punishment of Offenders Act 2012

Procedural justice

A
  • Reduced availability - Cut £350 million in 2013.
  • Legal aid deserts, firms can’t afford to offer legal aid.
  • Risk of miscarragies of justice as like Stephen Downing.
19
Q

Does the law achieve justice through procedural law?

A
  • achieves access to the law as no one is denied access, but effective access is a different matter.
  • Less able to act for themselves or can’t afford a lawyer maybe denied justice.
20
Q

What is Substantive justice?

A

The content of the law must be just.

E.g. mandatory life sentence.

21
Q

The Mandatory life sentence

Substantive justice

A
  • Represents Aristotles view of proportionality which governs sentencing practice.
  • More serious offence, harsher punishment.
  • Tarif dosen’t allow for proportionality so may lead to harsh decisions.
22
Q

Harsh decisions from the MLS

Substantive justice

A

Rv Cooker - D suffocated terminally ill wife but couldn’t use defence to reduce conviction.
MLS unfair for mercy killings, reduced tariff would provide measure of justice as in Rv Inglis - 9 years reduced to 5 for killing son.

23
Q

Does the MLS achieve justice?

A

Justice is served if judges pass a sentence they feel is appropriate rather than following close guidelines.

24
Q

What is Corrective Justice?

A

Law restores imbalances that have occurred between individuals/state.

25
Q

Sanctions + Damages

Corrective justice

A
  • Negligence, aim of damages is to put into pre tort position.
  • Contributory negligence reduces reward - Jebson v Ministry of defence. 75% deducted.
  • Just as it is proportionate + reflects C was largely to blame.
26
Q

Appeals in Criminal cases

Corrective justice

A
  • D can appeal from mag court on sentence, conviction or point of law.
  • Appeals on substantive law always seen to achieve justice but not for those convicted under ‘old’ law. Todays sentencing guidelines not applicable to offences committed before new guidlines came into place.
27
Q

Miscarriages in criminal cases

Corrective justice

A
  • Birmingham six & Guilford four led to the establishment of the CCRC in 1997. Role is to review cases it feels have been wrongly convicted, or unfairly sentenced.
  • Sally Clark’s conviction quashed by CofA after reference from CCRC.
28
Q

Does The CCRC achieve justice?

Corrective justice

A
  • Brings miscarriages to the attention of appeal courts even if considerable time has past.
  • Limited public funding, relies on those involved in the prosecution + investigation of the crime.
29
Q

What is Natural Justice?

A

Application of justice must be fair and seen to be fair.

30
Q

How does contract law demonstrate natural justice?

A
  • Third party rights - Jackson v Horizon Holidays
  • Contract (rights of third parties) act 1999 avoids injustices as in Tweeddle v Atkinson
  • Just as third parties are also affected.
31
Q

How does tort law achieve natural justice?

A
  • Breach & duty in negligence - Hill v Chief countable of West Yorkshire - harsh but just decision as could lead to defensive policing. Where v is known fair to impose duty - Swinney v Chief Counstable of Northumbria.
  • Nettleship v Weston

Unit 3 Section A (4 decks)

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