Nature of law: LAW AND JUSTICE Flashcards
MEANING OF JUSTICE?
A simple idea of justice is fair and equal treatment for all. It is, or should be, the primary aim of a legal system to deliver justice.
NATURAL LAW?
Under the natural law theory of justice, all law comes from a higher source, God or nature, and is linked to morality. An immoral law should not normally be obeyed and this disobedience is justice in action. This view was held by ST THOMAS AQUINAS. A just law must be moral and people must be treated equally and fairly.
POSITIVIST?
Under the positivist theory of justice, law is based on rules and is separate from morality. As long as a law was validly made with the correct procedures in place, then it should be obeyed regardless of its morality. According to HANS KELSEN, if a law followed from the correct procedure or accepted custom, it could have any content at all.
DOES THE CRIMINAL LAW ACHIEVE JUSTICE? UTILITARIANISM?
Maximise the greatest good for the greatest number of people, a utilitarian would argue they are just laws.
DOES THE CRIMINAL LAW ACHIEVE JUSTICE? LOSS OF CONTROL?
Loss of control- as loss of control still needs to exist, women are arguably still at a disadvantage and not on equal terms with male D’s in such cases. Thus, a natural law theorist would see this as unjust.
DOES THE CRIMINAL LAW ACHIEVE JUSTICE? HANS KELSEN?
As long as this law was validly made with the correct procedures in place, then it should be obeyed regardless of its morality.
DOES THE CRIMINAL LAW ACHIEVE JUSTICE? SEXUAL INFIDELITY?
The law on when sexual infidelity can be considered is thus complex and confusing. This hardly seems to promote justice.
