TOPIC 6: LAW, JUSTICE AND MORALITY Flashcards
Purposes of Law
Profound importance is to regulate society.
Promoting wellbeing of members of society
Prevention of corruption, crime
promotion of wealth acquisition
facilitating and controlling development
responding to contemporary changes
Moral thinking
Moral questions, are the questions about what is right and wrong.
Moral question are concerned with issues about what ought to be the case.
Moral thinking can be quite subjective. Judgments are often very simplistic and based on emotional reactions rather than reason.
Ethical thinking
Questions about appropriate standards of conduct or behavior:
- Custom
- Religion
- Own imagination
Legal thinking
Questions about legal rules or conduct behavior.
Relationship of Law & Justice
Moral and ethical thinking inform our opinions of what justice is, or what is fair in any situations,.
Legal thinking looks at how rules apply - legal rules may not be the same as what we think is just or fair.
Theories of Justice
- Divine command
- Natural law
- Positive law
- Mutual agreement
- Consequential-ism
Justice as Divine Command
Justice is the authoritative command of a deity such as the Christian, Islamic or Jewish God. For example, if you deliberately cause harm to another person you should be punished because the Koran says so.
Justice as natural law
Justice is a universal and absolute concept, an objective standard against which all laws and legal processes can be judged. Eg; if you deliberately cause harm to another person you should be punished because deliberately causing harm to another person is wrong; people who do wrong should be punished and that is just the way it is.
Justice as Positive Law
Justice is whatever the law says. Eg: if you deliberately cause harm to another person you should be punished because that is what the criminal law requires.
Justice as Mutual Agreement
Eg; if you deliberately cause harm to another person you should be punished because most members of the community agree that that is the right and fair thing to do.
Justice as Consequential ism
Justice is the decision or action that has the best consequences for total welfare. This is a realistic concept of justice.
eg: If you cause deliberately cause harm to another person you should be punished because this is likely to deter others within the community from deliberately causing harm, and this will benefit the overall community.
Types of Justice:
Distributive justice
Procedural Justice
Retributive justice
Restorative justice
Distributive Justice
Is concerned with the fair and proper distribution within an group or community of things such as wealth, resources and power. Distributive is achieved when things are distributed fairly and properly. The law is a means to ensure such a fair a proper distribution.
The possible approaches to achieving distributive justice include:
Egalitarianism; resources should be distributed equally
Desert theory; resource should be distributed based on what people deserve, the basis of which is not equality but some criterion such as NEED, TALENT, EFFORT.
Utilitarianism: resources should be distributed to maximize total happiness or welfare in the community/society.
Procedural Justice
Is achieved if a person receives a fair hearing or trial. A legal system is said to be procedurally just if safeguards
have been built into the legal system to ensure that a person being prosecuted for a crime or who is a party to civil litigation receives a fair hearing. (ie The Constitution of the Republic of Fiji - S.14- ‘Rights of accused person’ )
Examples of Safeguards:
- the right for a legal matter to be heard before a jury
- the requirement that claims and allegations satisfy a certain standard of proof (usually ‘beyond reasonable doubt’ in criminal trials and ‘on the balance of probabilities’ in civil trials’ )
- the requirement that a defendant be informed of the matters alleged against them
To the extent that a legal system or other system of dispute resolution deviates from these and similar safeguards, the system cannot be described as procedurally just.
NSW LEPRA
CRIMES INVESTIGATION PROCESS
Retributive Justice
Is the proper response by the state to a wrongful act. The filed of retributive justice is concerned with is concerned with the appropriate responses to criminal or harmful behavior.
The possible approaches to achieving retributive justice:
1. Desert theory: punishment should be decided according to what the offender deserves. Punishment of individual and achieving an appropriate balance between what the offender has actually done and the punishment received.
- Utilitarianism: compensation or punishment is justified to maximize the overall welfare of the community
- Deterring other offenders
- Rehabilitating existing offenders
- Ensuring the law is complied with
Restorative Justice
Is concerned with healing the victim and reintegrating the offender into the community.
Restorative initiatives:
bringing the victim and offender giving the victim the opportunity to express harm endured and offenders may express remorse for their wrongdoing.
Three types of Critical thinking
- Judgement of law according to consistency with legal authority.
- Judgement of law or policy according to consistency with theoretical, ideological and ethical standards
- Judgement of law or policy according to equity of outcome.
Rawls Theory of Justice
Rawl’s theory of justice, distinguishes between liberties, which are to be distributed equally, and social and economic (i.e. wealth , income and power), which “are to be distributed equally unless distributing them unequally would improve the position of the worst off.
eg: Freedom to vote should be distributed equally.
Obligation to pay taxes should not be distributed equally - instead the wealthy should pay a greater proportion of their income as tax because this would provide a greater benefit to those on the lowest incomes.
Nozick’s Theory of Justice
It is only just for an individual to have some goods if the history of goods from hte moment of their creation to that persons possession is “characterized by a just acquisition and just transfer”.
Contrast of Rawls and Nozick’s theories of Justice
If a car was constructede using components that were purchased fairly, and the selling of it was fair, then it is just for you to own it and it doesn’t matter if there are other people - Rawles least advantaged - who would be better off if someone owned your car.
In comparison, Rawl’s theory would argue that in a jsut system cars should be distributed equally unless unequal distribution is beneficial to the ‘least advantaged. (i.e. car owners must pay a tax that is used to subsidize the cost of the public transport used by those who cannot afford a car).
Challenges to Access to Justice in the Pacific
Ignorance: people ignore the law due to complex legal writing and procedures
Geographical constraints: people in rural areas will not have have proper access
Cost: legal representation, advice and monetary settlements are expensive
Discrimination and disadvantage: Some groups in society experience discrimination, and the legal system is responsible for the substantive inequality endured by various minorities. (LGBT, Women, Disable)
Solutions to these challenges
- Plain English
- legal aid
- interpreters and translators
- Community legal center’s in rural areas
- conditional cost agreements/ flexible legal payment schemes
- Alternative dispute resolutions
