Law & Justice Essay Structure

Define Law

Sir John Salmond: "a body of principles recognised by a country or community and applied by the state."
Binding
A system of rules

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Aristotle: Referring to individuals in their dealings with each other and to the state in making and enforcing laws
Lord Wright: The guiding principle of a judge in deciding cases is to do justice, that is justice according to the law, but still justice.

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Correction of a disturbance in the just distribution of wealth
When applying corrective justice, it is ensured that gains and losses of each party are equaled out so that the offender does not benefit from his wrong doing and the victim does not suffer loss

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Is a natural law theorist like Aristotle
However, believes in a middle ground between Marx and Aristotle
Aquinas followed the principles of a natural law that believes in a "higher" being (God), that creates laws (morals) that we follow, and believed that justice is achieved when things were allocated in due proportion.

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Devloped from Bentham's Utilitarianism idea that promotes the greatest happiness for the greatest number
Transformed the idea to protect the minority rather than the majority
Punishment was evil unless it brings public order and only then can it be justice
Bentham sought to create happiness for the majority and ignored the minority (known as the swine ethic)
Rawls: If slavery was considered to be a benefit of society, then the wellbeing of the slave-owners would outweigh the suffering of the slaves, therefore Utilitarianism would be forced to accept slavery

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Application of rules and procedures
E.g. Legal aid, which provides access to justice
Due to funding cuts, a utitarian approach to legal aid is being taken: only allocating it to those most in need, making access to justice harder
If we didn’t have access to legal aid only those with the money would be able to afford legal representation
Injustice between the upper and lower classes

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Convicting of bombing a pub
Detained for 15 years
Released because of a fault in the procedural justice during their trial
Never compensated for the fault
Lead to the establishment of Criminal Case Review Commission who aim to deal with suspected miscarriages of justice
Reviewing takes a long time

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Trial has to be impartial and fair with no bias and no personal interest in the case
Pinochet's judge has a personal interest in the case
Trial by peers: allows a jury to decide guilt
Ponting = D was obviously guilty yet jury chose to find them not guilty

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"True" justice = facts of the law
Sentence structures reflect the seriousness of the crime and blameworthiness of D
S.18 OAPA (GBH with intent) will carry a heavier sentence than a S.20 (Intent or recklessness as to some harm) as the culpability differs
Like cases must be treated alike, however The Coroners & Justice Act 2009 recognises lower culpability in some cases
E.g. battered wives, such as Ahluwalia and Thornton where the new defence of loss of control takes into account the fact that although these women murdered their husbands, the law has some sympathy for their circumstances

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