Nature Of Law Flashcards
Different Types of Justice
Substantive Justice
Procedural Justice
Distributive Justice
Corrective Justice
Substantive Justice
How the rules work in various aspects of law, criminal, contract, tort etc
Procedural Justice
The idea of fairness in the processes that resolve disputes and allocate resources
Distributive Justice
Concern the nature of a social allocation of goods
Corrective Justice
This looks at how problems within the system or laws can be corrected
Legal Philosophers on Justice
Plato: justice is an overarching virtue
Aristotle: need to balance the extremes and have proportionality
St. Thomas Aquinas: justice should govern our relationship with eachother
Aristotle on distributive justice
Says that a just state will award wealth based on their merit, virtue and what each person puts into society
Aquinas on distributive justice
Argued that rewards should be distributed according to merit, rank and need
Chaim Perelman on distributive justice
Put forward the view in his writing ‘De la Justice’ to each according to his merits, needs, works, rank, legal enlightenment and finally to each equally
Jeremy Bentham and Utilitarianism
The more an action increases the overall happiness the more valuable it is. More interested in the consequence the action itself is irrelevant. An example of this can be seen in the Investigatory Powers Act 2016.
John Stuart Mill and Utilitarianism
Similar to his ideas about Bentham however believed in qualitative utilitarianism. Developed the harm principle which states everyone is free to do a they wish as long as they do no harm anybody. He also said punishment should only ever be inflicted where it brings a benefit such as public order.
Social Justice
Social Justice is the equal access to wealth, opportunities, and privileges within a society
John Rawls on social justice
Was a 20th century sociologist which argued that the 2 basic principles of justice should mean that;
1. Each person has the right to all freedoms and liberties
2. Social and economic inequalities may exists but holy where they benefit the least advantaged in society
Robert Nozick
Robert Nozick whilst believing that the individual should be protected against fraud, theft, force or enforcing of contractual obligations placed no limits on property ownership. He believed that the individual, rather than the state should own property
To what extent doe the law achieve justice
Assuming everyone has the right to access justice and get a fair hearing, this means that in theory those who cannot afford it should get legal access
Problem: LASPO resulted in massive budget cuts on legal aid, if found guilty may have to pay legal costs and there is very little incentive for legal aid lawyers
What is a society
Society is a group of people with comment territory, interaction and culture
-Members of a society to not necessary have to share every aspect of culture and may even exist as separate societies within the same country aka pluralism
What is pluralism
A pluralist society is one in which there are many different cultures and traditions that all co-exist
-Pluralism allows members of minority groups to maintain their own independent culture traditions
What role does law play in society
The law exists in society to protect people from harm, to ensure a common good, to settle disputes and to persuade people to do the right thing
-Law can also shape society and society shapes the law eg Dangerous Dogs Act
Law as a social control
Social control is the way in which our behaviour, thoughts and appearance i regulated by the rules, norms, laws and social structures in our society
Roscoe Pound on the law as social control
Identified the basic principles social/ethical have a three fold purpose
-To identify and explain human claims, demands or interests of social order
-To express what the majority want the law to do
-To guide the courts in applying the law
Social control through civil and criminal law
The balance between the need for householders to protect themselves from intruders and the use of justifiable force
-Consent is an example of social control. Judges have different views depending on the circumstances eg R v. Brown
Social control in contract and the law of tort
In contract, law controls the ways in which sectors of society can impose their will and profit from others through legislation like the Consumer Rights Act 2015
In tort the question of social control is addressed in finding an appropriate balance between the rights of the claimant and the defendant eg Bolton v. Stone
Consensus Theory
In order to achieve a fairer social systems, there needs to be cooperation and compromise
Conflict Theory
Where 2 or more groups have different views and demands it is important to find a middle ground which tends to all the groups in conflict
Labelling Theory
Most people commit criminal or deviant acts but only som are caught and punished
