LAW04 Concepts - Justice Plan

Law and Justice

“Discuss the meaning of justice and analyse the extent to which English law succeeds in achieving justice and whether it should seek to do so”

DEFINITION AND MEANING

·         Justice synonymous with fairness, reasonableness, impartiality etc.
Lord Lloyd – justice hard to define bc it is a moral concept + subjective + differs.
Eg capital punishment.
No single definition.

·         So, difficult to say whether ELS achieves or doesn’t.
Good legal system should aim to create, apply + enforce justice.
But sometimes bad precedents + injustices happen eg took till 1991 R v R **** your wife.

·         More than one interested party – justice for V may lead to injustice for D and vice versa. Beckford, D mistaken and killed, justice as not sent down when not at fault but man dead.
Judge in Re: A – separation of conjoined twins where one would die to save other – said “our answer will be applauded by some but as many will be offended”

·         Lord Wright – “I have yet to find any satisfactory definition of justice”

CATEGORIES

Aristotle

Definition

Distributive justice

Is concerned with the allocation of wealth, rights and responsibilities within a society which should be distributed based on merit; those who contribute most are the worthiest and therefore should receive the most.

Corrective justice

Wrongs should be corrected through fair remedy or punishment. This is achieved in criminal law using sanctions eg fines, prison.

THEORIES OF JUSTICE

Definition

Utilitarianism

2

In juxtaposition to natural law, secular theory

Bentham – Justice achieved by applying laws that achieve

the greatest good for the greatest number of people. Attractive but creates individual injustice and suffering.

Eg SLOs benefit majority but inevitable cause individual injustices for those who inadvertently break rules – Callow v Tillstone

Eg intoxication rules rooted in public policy - Kingston

Mill – state should only intervene and punish if an individual’s acts would harm others (Harm Principle), theory of minimal intervention.

Eg followed by the dissenting judges in R v Brown

Natural Law

1

Aristotle – law should achieve proportionality, ideas of corrective and distributive justice (see earlier), punishments should be proportionate to crimes committed. Laws support nature.

Aquinas– equality and fairness = justice, natural law derived from higher power (God), link law fairness equality and justice, not follow laws against God but should prevent social disorder.

Devlin – laws function is to guard and support public’s moral welfare whether in private…