Law & Justice Flashcards
Introduction: how does Sir John Salmond define justice
‘body of principles recognised and applied by the state in the administration of justice’.
Justice is a subjective term and means something different to everyone, making it very hard to define.
But generally it can be defined as what is considered to be fair and right, treating everyone fairly and equally.
There are several theories of justice; including distributive justice, corrective justice, utilitarianism and social justice.
Paragraph 1: distributive justice - Artistotle (1)
Distributive justice - the fair allocation of benefits and responsibilities.
Aristotle believed in distributing according to merit, ie. giving to each according to his contribution to society.
For example, in the Olympics, a gold medal is given to the runner who runs the fastest.
However, this doesn’t allow for those unable to work, and according to Aristotle, they wouldn’t be eligible for anything.
Paragraph 1: distributive justice - Aquinas (2)
Aquinas believed in ‘due proportion’, ie. people receive what they are due in accordance with their merit, rank and need.
This can be seen in the minimum wage increasing according to age, if they have children etc.
This is not without flaw though as it is unclear who decides ‘status’.
Paragraph 1: distributive justice - Karl Marx (3)
Karl Marx held that ‘from each according to his ability, to each according to his need’, this is again evident in the UK as the NHS cares for people at their point of need, irrespective of their rank.
A criticism of this theory, is that it’s based on need, meaning there is a lack of incentive to work hard.
Paragraph 2: corrective justice
Corrective justice is the theory of correcting the things that have gone wrong.
Aristotle believed in ‘the scales of justice’ which works on the premise that if someone or the state suffered sue to the actions of another, there needs to be some correction to make up for this.
For example, murder is punished by a mandatory life sentence, actual bodily harm under s.47 Offences Against the Person Act 1861 has a maximum sentence of 5 years imprisonment and negligence is punished by rewarding damages to the claimant.
Paragraph 2: corrective justice - issues
However, there are issues regarding mens rea and constructive intent (the mens rea doesn’t match the actus reus).
An example of this can be seen in s.47 OAPA 1861, the actus reus of which is assault or battery causing ABH, whereas the mens rea is the same as the mens rea for the underlying assault or battery.
There is a second criticism in that the punishment doesn’t always fit the crime, for example a murderer isn’t punished with the death sentence in the UK. According to corrective justice, the punishment would be a life for a life.
Paragraph 3: utilitarianism - Bentham (1)
Utilitarianism is ‘the greater good’ and looks at satisfying the majority.
Bentham believed that what makes an action right or wrong is its usefulness or value. The more an actions increases overall happiness the more valuable it is.
However, why should the minority have to be sacrificed to satisfy the majority?
Paragraph 3: utilitariansim - John Stuart Mill (2)
John Stuart Mill looks at the quality of happiness, including respect for people, property and for rights and that their application brings the greatest happiness.
For example, under the NICE guidelines medication is not necessarily prescribed if it’s too expensive and would only help a few people; this can be seen in Rogers where the D was not allowed drugs to treat her breast cancer as the cancer wasn’t advanced enough.
Paragraph 3: utilitarianism - R v Dudley and Stevens (3)
In the case of R v Dudley and Stevens, 4 people were stranded on a boat, and in order to survive, they decided to kill and eat the youngest crew member.
Utilitarianism would argue that their actions were necessary as it benefitted the majority, but, it is morally wrong to kill another person, even if it’s to benefit another.
Paragraph 4: social justice
Finally, social justice believes in equal justice for all; and a fair way of living together in one society.
Rawls believed in the ‘veil of ignorance’ to distribute the benefits and burdens in society in an equitable manner.
A ‘veil of ignorance’ requires the person to forget everything; social status, life experience, personal circumstances etc.
This created a big flaw in this theory, as it is unrealistic to ask someone to forget everything and their life experiences.
Paragraph 4: social justice - Nozik
Nozik believed in an entitlement theory of justice, ie. if you have earned it, you deserve it.
A criticism of this is that not everyone has the same opportunities, for example, it’s not often what you know, but who you know.
Similarly, not everyone can work, but they may want to.
Paragraph 5: procedural and substantive law
The extent to which the law achieves justice depends on which theory of law the person believes in.
Procedural law is the making and implementing decisions fairly, for example, the court system and substantive law is the actual content of the law.
Paragraph 5: procedural law - example (1)
An example of procedural law is legal aid which is funding provided in order to give access to justice to those in need.
Article 6 of the ECHR enshrines the right to a fair trial and therefore access to justice.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 made several changes to the law on legal aid.
In civil law, it reduced the areas of civil law in which legal aid is available, and introduced the means and merits tests.
Paragraph 5: procedural law - what is the means test? (2)
The means test looks and earnings of the defendant and the merits test looks at the chance of success of the case.
When looking at the means test, if a person is on benefits, they automatically qualify for legal aid.
If they earn more than a certain amount, they have to cover the cost themselves and anything in between gets legal aid but they have to pay monthly contributions to make up the difference.
This reduced access to legal aid results in advice deserts as not many providers give advice under legal aid as they don’t earn enough money from it. Many people have to travel large distances to get to firms who provide aid under the government scheme, which is costly and they are unlikely to be able to afford it, meaning they don’t get justice.
Paragraph 5: procedural law - Karl Marx and Aristotle (3)
The means test
Karl Marx’s opinion on this would agree as if you don’t earn enough (ie. on benefits) they will get help, thus their ‘need’ is provided for.
Contrastingly, Aristotle wouldn’t agree with this; he would believe that you get help if you deserve it, therefore disagreeing that those on benefits get help for doing nothing.
