Law and Justice essay PDF

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Law and Justice essay...

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Discuss the meaning of Justice. Discuss whether the law achieves justice and whether it should seek to do so Law is not a term that lends itself to easy definition with varying views on the meaning. It can be broadly defined as a body of rules which are recognised as binding among the people of a community or state so that they will be imposed upon and enforced among those persons by appropriate sanctions this is adapted from LB Curzon, Dictionary of Law. Law refers to both substantive law which includes criminal law, tort and contract and procedural law which are methods by which laws are made and the administration of the legal system. In terms of the meaning of justice Kelson whose theories were first published in 1911 and further developed in his General Theory of law and state published in 1945, suggested that it is not scientifically possible to define justice because it is simply a matter of individual preferences and values. However in simple terms, justice means fairness and equality. Although relatively simple, the meaning of justice is extremely subjective; what is justice to one person can be seen as total injustice by another. Many different theorists have attempted to define “justice” and express their views on how it would be best achieved. Generally, everyone agrees that the aim of law is to achieve justice nevertheless the extent to which it does continues to be questioned. To begin with, distributive justice is concerned with the allocation of wealth, rights and responsibilities within a society. Aristotle (384-312 BC) suggested that these amenities should be distributed on the basis of merit; those who contribute most are the worthiest and therefore should receive the most. In his opinion, justice is proportionality. To allocate resources on the basis of need would be unjust, as the laziest person would be receiving the same benefits as the hardworking. Distributive justice attempts to share out the “good and bad things” amongst members of society, the benefits and burdens of society should be distributed in an equal way. Benefits may include the right to vote, hospital treatment from the National Health Service and legal aid. On the other hand an example of a burden which individuals encounter is having to pay tax, this includes value added tax on products and services and also tax on income which generates money which transfers to government spending. The current state pension scheme is a key example in line with Aristotle’s theory of distributive justice. Those who contribute, for example, for 30 years receive a larger state pension, a reward which is proportionate to their contribution. Whereas those who work for a shorter period of time, receive a smaller amount as their contribution has been less. Those who prescribe to Aristotle’s theory would regard the pension scheme as just, as people’s rewards reflect their contribution. However the issue with Aristotle’s theory is that it would not account for those who are unable to contribute significantly to society such as disabled people who are unable to work rather than ‘choosing’ not to work. In contrast to Aristotle, Karl Marx believed that wealth, rights and responsibilities should be distributed according to need, rather than merit. He stated that amenities should be allocated according to the maxim, “from each according to his ability, to each according to his need”. This referred to the idea that each person will receive what they need, irrespective of contribution. An example of the Marxist theory in our own society is the National Health Service. People who need treatment are given it, regardless of how much, or little they have paid into it. This conflicts with Aristotle’s theory, in that the least productive members of society would be rewarded, which is unjust. Another issue with Marx’s theory is that people would have no incentive to work. If everyone receives the same rewards irrespective of contribution, then why should anyone work hard? An overall criticism of distributive justice is the lack of agreement between the theories. It is impossible to define what just distribution is when the theories disagree between themselves regarding who should receive which rewards. Moreover, developed by Bentham, utilitarianism is an alternative theory of justice. Bentham, a jurist, economist and social reformer formulated his theory in an introduction to the Principles of Morals and Legislation. The aim of this theory is to increase human happiness by increasing pleasure and diminishing pain. For utilitarians justice is concerned with promoting ‘the greatest happiness for the greatest number’, even if this means some individuals lose out resulting in

increased unhappiness for a minority. Maximising happiness is the objective of justice, to help measure this he developed a formula known as the ‘felicific calculus’ which can be used to assess whether our conduct increases happiness. One of the criticisms of this theory is whether it is just for an individual to be sacrificed for greater community happiness. For example, as a result of ‘Sarah’s Law’ the identity of an individual paedophile may be disclosed to the community in which he is living, causing him considerable distress. In applying the felicific calculus the greater happiness brought to the larger community might outweigh the pain of a few individuals. However, to some extent theory does attempt to provide a route to resolving difficult problems such as mangers and doctors in the National Health Service prioritising resources. The felicific calculus will necessarily result in outcomes that are not pleasing to everyone but will provide a rational justification for deciding priorities. In addition, John Rawls, a professor of political philosophy at Harvard, published A Theory of Justice in 1971. It sets out the concept of social justice. In order for there to be justice decisions need to be made in a way that is totally objective and without any personal prejudice. To achieve this decisions would operate behind a ‘veil of ignorance’. He approaches the question of justice through an imaginary situation in which the members of a society are to decide on a set of principles designed to make their society just, and advance the good of all its members. In employing the fiction of the ‘veil of ignorance’ to develop a society based upon consent, Rawls was promoting a rights-based system: basic rights such as freedom of speech and association are ‘inalienable’ which means they can never be sacrificed for the common good.The main criticism of Rawls’ theory is that it is purely hypothetical. Starting a society from zero would be impossible, so Rawls’ theory of justice is impossible to implement. The theories discussed above can all be applied to issues within procedural and substantive law. To begin procedural law is law that denotes the procedures and methods used to enforce rights and duties. It refers to treating like cases a like and applying the rules equally to everyone. One key element of procedural justice is legal aid. In the Access to Justice Act (1999), it states that in criminal law those who cannot afford private representation will have access to aid which permits them to be rightfully treated and to understand the law. Legal aid is regarded as an important element in promoting social justice and is funded with by the treasury. However the budget for legal aid is not demand led. The budget has reduced over the years as the demand rises. Entitlement is means tested where the same standard is applied to everyone. There has been proposals to limit he areas in which legal aid would be available to family law and domestic violence. Although many have opposed such cuts as these changes would create a barrier to justice therefore the law would not be achieving justice for everyone but only for a minority. In applying the utilitarian reasoning, it would be just to make cuts to legal aid if the money can be used to help more people elsewhere for example in the National Health Service. Furthermore, when sentencing an offender, judges and magistrates take a number of factors into consideration. These include the aims of sentencing, and the crime itself, as well as mitigating or aggravating factors. As a result of this consideration, the sentence given should be just. Aristotle referred to the scales of justice in his theory, stating that the gains and losses of each party should be equalled out, so the offender does not benefit and the victim does not suffer loss. This is reflected in the process of sentencing. A less serious crime receives a less serious punishment and vice versa. For example, assault carries a maximum sentence of 6 months, whilst carries a maximum sentence of life. Under Aristotle’s theory, this would be just, as the scales of justice are re-balanced. Those using Utilitarian reasoning would also state that the process of sentencing is just, as incarcerating dangerous people protects the majority, meaning greater happiness for a greater number. Despite this, there are still sentencing disparities that would indicate that not all sentences are just. With regards to civil law and procedural justice the aim of damages is to put the claimant in a position they were in prior to the tort occurring. It is important to note that the claimant can be held to have contributed to his own injuries and therefore damages can be reduced by a percentage. this is clearly demonstrated by the case of Sayers v Harlow UDC where the defendant tried to

climb of a public toilet standing on the toilet roll holder but the roll rotated and the claimant slipped and fell, injuring herself. It was found that her actions were not unreasonable in the circumstances and the injury was a foreseeable consequence. However, 25% of the claimants damages were deducted for contributory negligence. Distributive justice theorists would state that this is justice, as the responsibility is distributed fairly between the two parties. On the other hand, substantive law creates, defines and regulates rights and duties. The sentencing practice of judges and magistrates is generally governed by the principle of proportionality. The more serious the offence, the harsher the sanction imposed. This, however, is not true of all crimes. Murder for example, carries a mandatory life sentence. Regardless of motive, all murderers are given a life sentence; and the setting of a minimum sentence tariff does not always allow for proportionality, so may lead to harsh decisions. With regards to murder there has been much debate into whether the mandatory life sentence does or does not achieve justice. An argument that supports that it does achieve justice is that murder is such a heinous crime it can only be punished by the most severe punishment and the life sentence represents the revulsion with which society regards the crime of murder and it was part of the deal when capital punishment was abolished in the 1960s. In contrast, there are different ‘classes’ of murder of vastly different degrees of culpability ranging from brutal and repeated offences to a ‘mercy killing’ of a beloved partner. It is seen that the life sentence is not appropriate in all cases. Although, it can be argued that making the sentence discretionary would give judges too difficult role and if they pass ‘too short’ sentences, it would weaken public confidence in them and in the system. It would create the potential for inconsistencies. But it is important to consider that judges are sufficiently skilled and experienced in deciding discretionary sentences for other offences, but mandatory life sentence allows them limited freedom to tailor punishment to fit crime. However there is now more flexibility under Criminal Justice Act 2003 than there was historically. Now, to some extent criminal law recognises that not all killing is equally culpable. Also, loss of control and diminished responsibility can be used as partial defences to murder whereas self defence and automatism are complete defences. However the law fails to recognise duress as a defence to murder. There is the argument regarding whether this achieves justice in cases such as Gotts where a boy was threatened by his own father. Furthermore, in the law of tort, a duty of care will not be imposed unless it is fair, just and reasonable to do so. In Hill v Chief Constable West Yorkshire, the House of Lords decided that it would not be fair, just or reasonable for the police to owe a duty to every potential victim of crime as it would undoubtedly lead to defensive policing practises. Utilitarians would agree with this principle, as the police would spend more time covering themselves than keeping the majority safe if a duty was imposed. Regarding another area of civil law, the element of breach in negligence, the decision in Nettleship in Weston to judge learner drivers against the standard of a competent driver has been criticised as unjust. It seems unfair that people can be judged against a standard higher than they are able to meet. A learner driver could be doing their best and still be punished for not reaching the required standard. On the other hand this could be seen as just as they are judged against other reasonable drivers who may commit mistakes not against a ‘perfect’ driver. Further to this, there are other areas of civil law that is seen as unjust. An example of this is in negligence under psychiatric harm. The law distinguished two types of victim: primary who are directly involved and secondary victims which is someone who fears for someone else’s safety.The control mechanisms concerning psychiatric harm introduced in Alcock v Chief Constable of West Yorkshire were implemented to limit the amount of people able to claim for psychiatric harm; a principle known as the “floodgates argument”. This states that the sufferer must be present at the scene or immediate aftermath to claim. This could be criticised as unjust. For example, the families of the dead whom saw their love ones die at Hillsborough on live television were unable to claim for the psychiatric injury they suffered as a result. However cases such as Page v Smith involving a road accident, where the victim succeeded merely for being a primary victim are allowed. This may be seen as unjust and it could be suggest that if the law removed the alcock mechanisms and replaced them with some type of proximity, then it would achieve justice in this area of the law.

With regards to whether the law does achieve, there has been many miscarriages of justice where the trial took place before the implementation of the Police and Criminal Evidence Act 1984, which included codes of practice to regulate police powers and protect public!rights, suggest that the law does not always achieve justice. A key example of a miscarriage of justice is the Stephen Downing case which involved the conviction and imprisonment in 1974 of a 17-year-old council worker, Stephen Downing, for the murder of Wendy Sewell. This was the longest running miscarriage which ended in 2002 when his conviction was quashed 28 years after the death. This shows a failure in procedural law, the defendant could barely read and write and was arrested and grilled for nine hours before being tricked into confessing to the attack in a statement written in pencil by the police. The police ignored a vital witness and there was a failure to provide legal representation for Stephen. It can be argued this shows how the law fails to achieve justice and how the constant media attention surrounding the case led the police to ‘cut corners’ as they were pressured to close the case with justice not being achieved. Also, the case of the Birmingham Six that were found guilty due to gross abuse by the police of the interrogation of the defendants and the public pressure to convict due to the bombings. In 1991 they were released after 16 years with the court of appeal stating like any other system of justice, the adversarial system may be abused.To address these clear weaknesses in procedures a more corrective justice approach has been introduced, the Criminal Cases Review Commission was established to review cases injustice.This has allowed procedural and corrective justice to achieve a more balanced approach in criminal law but injustices still remain and clearly justice will continue to be difficult to achieve in the highest profile cases. Further to this, other areas of law have been changed in order to achieve justice. For example two years after the the execution of Ruth Ellis and largely prompted by her case, parliament changed the law to allow the defence of diminished responsibility by passing the Homicide Act 1957. Also, the non-fatal offences have been developed to include serious psychological harm through the case of Burstow. This shows that the law is adapting in order to continue to achieve justice for defendants, victims and claimants alike. In conclusion, the English legal system’s primary interest is to promote justice. However, there are many cases which demonstrate that this is objective is not always fulfilled. Having explored the many theories of justice, it is evident that the idea is subjective. To one person, justice is having individual freedoms, whilst for another; justice is achieved if the majority are happy. This variation means that justice will probably not be achieved consistently. One party will always feel that the outcome of a case is unjust. The best the law can achieve is that people feel that they have access to a fair and impartial trial....