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