question 9 Flashcards
explain justice
justice is fairness equality and even handedness. this includes treating like cases alike showing impartiality and acting in good faith.
explain justice - Bentham v plato
in order to evaluate if justice is achieved its first necessary to establish what justice is.
theres been many definitions with no one clearly being the ‘right’ one.
for Bentham, the utilitarianism philosopher, justice is achieved through acts that bring about the greatest level of human happiness with a purely mathematical approach to calculating this. anything that decreases the level of happiness must be unjust.
on the other hand platos argument was that justice is achieved when society is in balance or harmony with all classes of society fulfilling their ‘natural’ function.
explain justice - positivist v natural lawyers and lord wright
for positivists, a just society is achieved when the law is followed regardless of what the law says, but natural lawyers would argue the law is only just when it complies with a higher (usually moral) purpose.
ultimately lord wright understanding of justice as ‘what appears to be just to the just man’ may be the most accurate as it suggests justice is entirely subjective and whatever makes a society believe their system achieves justice will do exactly that.
explain justice - categories of justice
there are 3 categories of justice.
procedural - concerns mechanisms which decisions are made. one way our legal system acheives justice is through the right to appeal. for criminal cases this means magistrates, to crown, to court of appeal and then supreme court.
substantive - this is acheived by the application of legal rules to achieve a fair outcome. in criminal law this is seen in sentencing. e.g. those convicted of murder are subject to a mandatory life sentence which most agree imposing a life sentence on a murderer is just.
corrective - achieved by restoring the imbalance thats occurred between 2 individuals or an individual and the state. This can be seen in factors considered by judges in passing a sentence. it can also be achieved by restoring wrongs like in criminal law where a d may appeal against the conviction or sentence on a point of law.
explain fault
fault is generally required within the law to justify having a consequence for breaking the law. it feels fairer to society for a consequence, such as penal punishment, to be based on the idea the d is to blame.
explain fault - two parts
fault can generally be divided into 2 parts - the harm the v has suffered in terms of physical injury or damage, and the blameworthiness of the d in terms of their mental state at the time the law was broken.
this is most clearly seen in sentencing guidelines which are clearly based on these 2 categories of fault. a lower or higher level of one or more parts of fault impacts the category a d is assigned to and so the recommended sentence.
explain fault - ar and mr
within criminal law the requirements of ar - idea d must have made a voluntary choice to act (or not like in omissions) as established in hill v baxter - and the usual requirement of a mr (a guilty mind) - courts assume mr required even if parliamentary act doesnt make it clear (gammon) - clearly demonstrate both harm and blameworthiness are usually required in order to find the d guilty of a crime.
