Law & Justice Flashcards
Law
A command of the sovereign (supreme authority) backed by the sanction, according to Austin
Justice
More difficult to define. Instead, academics have discussed different ways justice can be achieved through the law.
How can justice be achieved through the law?
- Social justice
- Utilitarianism
- Distributive justice
- Procedural justice
- Substantive justice
- Corrective justice
Social justice
–> described by the DWP as “making society better by providing tools and support to help turn lives around”
Utilitarianism
A theory of justice dev by Bentham which centres around the outcome of an act increasing overall happiness, for the greater good
Distributive justice
Looks at how fairly society’s resources are allocated
Aristotle
Aristotle thought justice was based on proportionality, and a just state will distribute resources based on merit (virtue and contribution to society)
Marx
In contrast, Marx argued that justice can only be achieved through redistribution of wealth according to need
Nozick
Theory of entitlement however argued that society is just if everyone is entitled to retain what they possess.
Procedural justice
Considers whether the legal system itself provides justice. Concerned with making and implementing decisions according to fair processes through institutions such as the police and courts
Rawls
Promoted a rights-based system through his thought experiment, where society would be more just and equal if people were born into a “veil of ignorance”
Substantive justice
Evaluated by considering different aspects of the legal rules themselves, e.g. from criminal/tort/contract law
Corrective justice
Focuses on rectifying past wrongs. In criminal law this is usually through sentencing or victim compensation. In civil law, this is through compensation or other remedies such as injunctions
P
Mill also linked utilitarianism to justice. It could be argued that punishing wrong-doers brings happiness to the greatest number…
This means that the criminal law aim of punishing offenders should achieve justice for the majority
D
For example, the mandatory life sentence for murder is seen by many as a just and proportionate punishment…
This means that the majority are satisfied with the punishment, in line with utilitarian principles
E
However, Mill also argued that punishment is itself an evil as it involves inflicting harm or pain and can only be justified if it brings public order…
This means that utilitarianism can be criticised for sacrificing the rights/happiness of the individual for the greater community
+
For example, in R v Brown the individuals’ freedoms were sacrificed in favour of the greater good (to protect society from physical and moral harm)…
This means that while law may achieve justice for the minority, it is not achieved for those in the minority
