Nature of law: Law and Justice Flashcards
What is justice?
The concept of fairness and equality where cases are treated impartially.
What is distributive justice?
The fair allocation of benefits and responsibilities of life.
What is Aristotle’s view on justice?
Aristotle distinguishes between two types of justice:
- distributive justice deals with the fair distribution of goods, resources and honors in society based on merit or contribution to society.
- retributive justice focuses on rectifying wrongs and restoring balance when injustice has occurred. Through punishment and compensation. - RJ should be proportionate to the offence to restore fairness.
- Emphasised the importance of the rule of law in achieving justice because it enforces order based on fairness.
What is Jeremy Bentham’s view on justice?
- What makes an action right or wrong is the usefulness or value of consequence it brings.
- Bentham believes the purpose of justice is to promote happiness amongst individuals by producing favourable outcomes for society.
- Justice should minimise pain and suffering, be impartial and equal.
- Punishment should be designed to deter future wrongdoing.
What is utilitarianism?
- The concept that an action can increase overall happiness and become valuable or can decrease happiness and become reprehensible.
- For a utilitarian, maximising happiness is the object of justice.
What is social justice?
The concept of people having equal rights and opportunities.
What is John Rawls’s view on justice?
- Justice is fairness - each member of society would distribute resources in a disinterested manner by not knowing in advanced a person’s position in society (veil of ignorance).
- Two features of justice:
- Each person has an equal right to basic liberties such as freedom of speech and the right to own a property.
- Social and economic inequalities may only exist where they benefit the disadvantaged or the positions are open to everyone.
What is John Stuart Mill’s view on justice?
- Supports Bentham’s view on utilitarianism.
- He argues that justice is the respect for people, for property and for rights as well as the need for good faith and impartiality.
- Punishment can only be justified when it brings greater benefit such as public order or else it is evil.
What is procedural justice?
The making and implementing decisions according to fair processes e.g., legal aid availability.
Why is legal aid an important part of justice?
- Legal aid helps people understand their legal rights and obligations - a right protected by Article 6 ECHR.
- Anyone arrested and taken to a police station is entitled to free legal advice, whatever their means.
- After being charged or issued with a summons, a persons eligibility for further legal assistance becomes means tested.
- It must be established that it is in the interest of justice for a person to be granted legal aid.
- Therefore, justice requires access to the law.
What were the effects of changes made by the Legal Aid sentencing and Parliament of Offences Act 2012?
- Reduced the availability of legal aid - the gov cut £350 will from the ‘small budget of 2:2 bill which removed ‘social welfare law’’: advice on welfare benefits, employment and housing etc.
- Firms can no longer afford their criminal legal aid practices increasing the risks of miscarriages of justice.
What is corrective justice?
When the law restores the imbalance that has occupied between two individuals or the individual and the state.
How is corrective justice implemented?
- In sentencing, the judges or magistrate will consider its aims, aggravating factors, mitigating factors and sentencing guidelines - criminal law.
- In civil law, compensation is to restore the claimant to their pre-tort position.
- In contract, damages is allocated so the claimant is placed in the position they would have been had the contract been performed.
How is justice served through the criminal process?
Trial by jury enables the defendant to be judged by his peers, who are free to apply their views of justice rather than adhere strictly to the rules of law as illustrated in R V Ponting (1985).
How is justice achieved through appeals?
- In criminal law cases, the right is available to the defendant on the point of law.
E.g., Thorton 1992: an appeal was allowed in light of new evidence .
