Law-Law and Justice Flashcards
Are law and justice the same thing?
Generally we would all assume law and justice are in effect the same thing, or at least that the whole purpose of law is to promote justice. Nevertheless, this is not always the case and it is probably easier to assume that there are many occasions where law and justice quite naturally coincide but that there also occasions when they do not
What is evidence of where law and justice are different sometimes?
There have been many instances in newspapers of so-called ‘miscarriages of justice’ where people are wrongly convicted of a criminal offence. The existence of the Criminal Cases Review Commission is an acknowledgement that mistakes are made and that sometimes the law deals wrongly with people and treats people unjustly
What are the miscarriages of justice in civil law?
Complaints of miscarriage of justice are not restricted to the criminal law, and occur in civil context also. Many people quite plainly suffer physical problems following medical treatment where tort is the appropriate remedy, but will be unable to gain any compensation because they cannot prove fault
What is an example of miscarriages of justice in civil law?
Wilsher v Essex Area Health Authority is a classic example. The law is no doubt right on the subject, but it is inevitable that the claimant may walk away feeling that he has been treated less than justly
What is the famous case for miscarriages of justice?
The case of Tony Martin, in which he was convicted of murder when he shot and killed one burglar and injured another, caused controversy. This was not just because he was convicted within the criminal law, but also because the injured burglar claimed for compensation
Is justice really a reality?
Justice is certainly one goal towards which the law naturally strives, but it is unlikely that law will ever produce ‘justice’ in every case. The law is concerned with the enforcement of legal rules, and justice is not the primary consideration in every case
What is one of the key problems with justice?
The most immediate problem in any case is defining precisely what ‘justice’ means. The difficulty of defining justice was once commented on by Lord Wright
What did Lord Wright say about justice?
“the guiding principle of a judge in deciding cases is to do justice; that is justice according to the law, but still justice. I have not found any satisfactory definition of justice…what is just in a particular case is what appears just to the just man, in the same way as what is reasonable appears to be reasonable to the reasonable man”
Why may justice vary?
In some situations people’s concept of what is justice may differ and, depending on what is at stake, it may differ quite widely. 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 in common law, treating like cases alike. However, even this can lead to situations which may be seen as injustices
What is an example of how the rigid application of rules can produce injustice?
Married women before the landmark case of R v R, in which the House of Lords used the Practice Statement to alter a 200 year old rule that a man could not be guilty of raping his wife, may well have thought they were being treated unjustly by the law. Their marital status denied them protection. Similar to R v Ahluwalia where provocation was essentially a male defence, discriminating against women
What represents justice?
We have some idea what represents justice. The development of rules of equity were said to be based on justice and fairness
Why did equity develop?
Equity developed because the common law was said to be unfair, because the writ system was closed and so not every litigant had a claim, because many of the rules of common law were too rigid for the claim to be successfully fought, and because the remedies available were often irrelevant to the actual need
What is justice, in the simplest form?
Justice in its simplest sense is based on fait 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. However, there are numerous examples from history of societies creating unjust laws
What is an example in history of societies creating unjust laws?
The majority population in South Africa prior to the new constitution would not have accepted that the apartheid laws were just, and this is why they were resisted by the ANC and other groups over many years until their eventual collapse. Also many of the atrocities carried out during Nazi Germany were backed up by the Nuremburg laws passed by the National Socialist party once in power. The view of the international community was reflected in the war trials conducted at Nuremburg
What did Aristotle say about justice?
Aristotle, the Greek philosopher was one of the earliest people to actually put forward the view that all law should promote justice. However there are many varied theories on the relationship between law and justice and first it is necessary to consider these
What are the theories of justice?
Natural law, positivism, and utilitarianism. The economic theories of justice are capitalism and socialism
What is natural law?
The basic idea is that all law ultimately derives from a divine source which is superior to man-made law and which is based on moral rules. It therefore promotes the idea that law and morality should therefore absolutely reflect eachother
In natural law, what is the natural source of law?
Different views can be taken on what this natural source is. Aristotle believed that it could be found in nature, while St Thomas Aquinas believed that the natural source of law was God
What then, is the logical extension of the natural law philosophy?
That it is permissible to break the legal rules of a country if they fail to conform to moral laws, and that this is only a representation of justice in action. This was a view held by St Thomas Aquinas. His view was that laws that went against the public good had no legitimacy. Nevertheless, he was not prepared to see the law broken if this would lead to social disruption, which he also felt would be against God’s will
Who are examples of a modern follower of natural law?
Professor L L Fuller was a modern follower of the idea of natural law. His work, ‘The Morality of Law’, focuses on an ‘inner morality’ which he argues should be followed. Lord Devlin also believed the law is based on morality, but in this case used this as a justification for judges to use the law to interfere in moral issues-the contrary view was taken by Professor Hart
What is positivism, and how does it relate to natural law?
Theories of natural law conflict with those of positivist thinkers who essentially believe that, provided the law is made according to the correct procedures, then it should be followed absolutely, however much it conflicts with morality
Who was a well known positivist?
Kelsen, who wrote about his theories in ‘General Theory of Law and State’ in 1911. Kelsen argued that law and morality are entirely separate concepts, and that even though an individual law might be seen as immoral, it should still be followed. He was also of the opinion that justice is too vague a concept to be defined. Sincere there could be different theories of justice, it was predominantly based on individual perceptions and preferences, and could not be represented in law
What are two other positivists?
Professor Hart, who also considered that law and morality are separate concepts. He argued that law should be based on logical ideas that will produce correct decisions according to the rules. Also Durkheim, who held the opinion that since society is held together by social structures, the law must operate as an integral means of ensuring that those structures work
How did utilitarianism begin?
It is a philosophy that developed in the 19th century predominantly from the writings of Jeremy Bentham and John Stuart Mill. It was also followed to a degree and given some practical application at that time
What is utilitarianism as a theory?
As a theory it is essentially different from the basic principles of natural law, although it still in some sense concentrates on the conflict between legal rules and divine law or at least justice. Jeremy Bentham, the originator of this school, argued quite convincingly that the major purpose of law was to achieve the greatest happiness for the greater number
According to utilitarianism, what would the most successful law 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 was in everybody’s interest, and indeed it completely ignores the interests of the individual which would be sacrificed for the benefit of the majority
What was John Stuart Mill’s opinion?
His opinion was that people should be left to manage their own affairs and that legal intervention should be only minimal. The only justification for interfering with a person’s basic freedoms would then be where that person was causing harm to someone else and thus interfering with their freedoms
