Law & Justice [The Nature of Law] Flashcards
Definition of ‘law’
A body of principles recognised and applied by the state in the administration of justice
by Sir John Hammond
Definition of ‘Procedural Justice’
the making and implementing decisions according to fair processes
Legal Aid
The presence of LA affirms eveyone’s right to access justice and receive a fair trial, as enshrined by the Human Rights Act 1998. Anyone arrested and taken to a police station has the right to access an on-duty solicitor to provide initial legal advice.
Further LA is available to help pay for legal representation to actually take a case to court.
Legal Aid (Negs)
However, after being charged, elgibility for LA becomes means-tested. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 ringfenced areas of the law where LA could not be available such as family law.
In 2013, the government cut £50 million from the budget.
The Jury
Consists of 12 members, usually diverse in life experiences, which allows members to use their own view of justice rather than strictly adhere to the law. This is a positive as the content of the law may not always be just. (R v Ponting: Jury acquitted D who has very likely leaked classified documents relating to the Falklands War).
They aren’t case-hardened and so can act more impartially, and, evidence of D’s previous convictions is generally inadmissible to prevent prejudice.
The Jury (Case Negs)
There are, obviously, cases in which the jury did not provide justice.
In R v Young, the jury found a D guilty of murder after ‘contacting’ the V by Ouija board whilst drunk the night prior.
Independent Judiciary
An IJ is vital for any justice system. The establishment of the Supreme Court by the Constitutional Reform Act 2005, separated the highest court from the legislature. Judges are not part of the government and so should not be pressured to make certain decisions.
Also, under the Human Rights Act 1998, judges have the power of judicial review, allowing judges to provide a check on the power of the executive.
Independent Judiciary (Cases)
- R (Miller) v Secretary of State for Exiting the European Union (2016):
Theresa May couldn’t trigger article 50 without the approval of parliament - R (Miller) v The Prime Minister (2019):
Boris Johnson’s prorogation of Parliament was illegal
Definition of ‘Substantive Justice’
relating to the content of the law itself
Issue of Euthanasia - Natural/Posivists
Whether euthanasia should be legalised. ‘Assisted Suicide’ when a person’s quality of life becomes poor and they struggle to live. Is it just for it to be illegal.
- Natural (law needs to be backed up by a higher authority) [Devlin]: God’s will of ‘thou shall not kill’ is being replicated and therefore it is just
- Posivist (law is valid regardless of consent) [Hart]: Cruel for someone to keep someone suffering alive
Substantive Justice Intro
In a multicultural society such as the UK, where many different people of different cultural and ethnic backgrounds mix and co-habit, it is near impossible to make law which everyone thinks is just.
R v Brown - Utilitarianism
R v Brown: Men committing fully-consensual sado-masochist was illegal to prevent an ‘occult of violence’.
Utalitarianists would agree, as the philosphy is concerned with the outcome of an act: does it create the most happiness for the most people? They would argue that not being able to consent to anything more than battery protects the majority by upsetting the minority and that’s okay.
Hart would argue that it is unjust to intervene into consensual arguments.
