LAW04

Law and Justice The Concepts of Law

We often assume that law and justice are the same thing.

Or we assume that the purpose of the law is to achieve justice ... but is this really the case?

Miscarriages of justice.

If the law always achieved justice then miscarriages of justice would not occur.

"It's like being buried alive" (Video)

The law itself recognises that miscarriages of justice did and still do happen through the existence of the Criminal Cases Review Commission, whose job it is to investigate (and review) possible miscarriages.

The case of Tony Martin (Martin (Anthony) (2002)) is often used as an example of where justice was not necessarily achieved on a criminal or civil level.

Tony Martin was convicted of murder despite evidence of provocation and diminished responsibility. He was eventually released after 5 years when the CA replaced his conviction with one of manslaughter.

One of the burglars he injured also sued for compensation. Is this 'just'?

In order to achieve justice we need to understand what it means.

Lord Wright stated:

"The guiding principle of a judge in deciding cases is to do justice. I have not found any satisfactory definition of justice ... what is just in a particular case is what appears just to the just man, in the same way as what is reasonable appears to be reasonable to the reasonable man."

Lateness example.

People's opinion of justice differs and could differ widely.

Justice can be seen in the idea of conformity; applying the same rules in the same way to all people. For example, stare decisis and judicial precedent, where like cases are treated alike.

So if everyone is treated in the same way this will lead to justice ...

... or will it?

R v R (1991)

In this case rape in marriage was made illegal.

But, before this case all married women were denied the protection of the law just because of the identity of the rapist.

So, surely if all married women are treated the same way this must be just?

Except it wasn't just and was changed.

R v Ahluwalia (1992)Ahluwalia was denied a defence of provocation after she snapped and killed her husband after years of violence. Her loss of control was not 'sudden and temporary'. Studies show that women do not lose their temper in this way and that provocation is essentially a male defence.

But, the law is applied equally to everyone and so therefor, surely, justice is being done.

Except it wasn't and eventually the defence was replaced by the partial defence of loss of control.

As a result of these cases it can then be argued that justice is not based on the fair and equal treatment of all. Even if this means that some people should be treated differently to others.

But, once again, this is not perfection. This can lead to society creating laws that discriminate against certain people living within that society.

Apartheid.

Desert Island Exercise.

By coincidence you and other members of your law class find yourselves on the same plane to Ibiza (or other mediterranean island of debauchery) when it crashes onto a desert land.

Due to your extensive legal training (you're welcome) the rest of the survivors have asked you to devise the laws for your new community.

What will be your first 5 laws?

John Rawls1921 - 2002

Theories of Justice.

Natural Law.

Natural lawyers believe that there is a 'higher' source of law that all law derives from. This higher law is superior to man-made law and is based itself on moral rules.

The Greek philosopher Aristotle believed that this higher law came from nature; whereas St. Thomas Aquinas believed that it came from God.

Aristotle384 BC - 322 BC

Aristotle was one of the earliest thinkers on justice and stated that there were 2 types of justice:

1. Distributive justice:

This is where the assets in society (wealth and honour etc.) are distributed amongst society. They are not distributed equally however, they are distributed proportionally based on how much they are deserved. So citizens can be wealthier than other citizens and this would be 'just'.

2. Corrective justice:

This occurs when distributive justice has been disturbed. When someone acquires assets that they do not deserve. For example, if property was stolen. Corrective justice would ensure that this is 'corrected'. That the status quo of distributive justice would be restored through either the reurn of the property or/and the punishment of the offender.

In its very simplest form it could be argued that the modern justice system of England and Wales works in a very similar way.

St. Thomas Aquinas 1225 - 1274

The logical expansion of Natural Law is that legal rules can be broken if they do not follow the moral code of the 'higher' law.

St. Thomas Aquinas believed that law and morals should reflect one another exactly and, that any law that went against the public good lacked legitimacy. The laws would not be just.

However, he was reluctant to disobey laws that would lead to social disruption, as this would also be against God's will.

Lon L. Fuller1902 - 1978

Professor Lon L. Fuller was a modern follower of natural law and in his book The Morality of Law he focuses on an 'inner morality' that he believes all legal systems should follow.

The 8 procedural elements of a just legal system.

Positivism.

Theories of natural law conflict with positivist theories.

Positivists believe that if the law is made according to the correct procedures then it should be followed no matter what. This would be a just law. Even if it conflicts with morality.

Kelsen1881 - 1973

Kelsen was a well known positivist and wrote about his theories in General Theory of Law and State in 1911.

He argued that law and morality are entirely separate concepts.

He stated that justice was too vague a concept to be defined. As there are many different theories of justice any definition would be based on individual perceptions and preferences.

Professor Hart1907 - 1992

Professor Hart agreed that law and morals were separate concepts and that a just system of law did not depend on the law reflecting morality.

According to Hart the law should be based on logical ideas that will produce correct decisions according to the rules.

Utilitarianism

Utilitarianism developed from the writings of Jeremy Bentham and John Stuart Mill.

Jeremy Bentham1748 - 1832

Jeremy Bentham argued that the major purpose of the law was to achieve the greatest happiness for the greatest number of people.

Laws that promoted this would therefore be just.

This makes a lot of sense but has one major defect ...

... it ignores the interests of the individual which would then be sacrificed for the benefit of the majority.

This would mean that laws that discriminate against minorities would be just.

John Stuart Mill1806 - 1873

John Stuart Mill believed that law would be just if people were left to manage their own lives. He believed legal interference in an individual's life should be minimal.

The only valid reason to interfere with a person's basic freedoms would be if they were causing harm to another and interfering with the other's basic freedoms.

Economic views of law and justice.

Law is used to support political philosophies. A major focus of politics is property rights and the distribution of wealth.

A government supporting capitalism will interfere with individual rights in a minimal way and be very protective of property rights. This can be seen in the laissez-faire policies of the government during the Industrial Revolution.

A socialist government will be interventionist and the reforms in things such as labour relations, employment protection, consumer rights etc of the late 1960s and late 1970s are examples of this (all were done under Labour governments).

Karl Marx1818 - 1883

Karl Marx argued that capitalism is an unjust philosophy because it protects individuals with wealth at the expense of the social needs of the many.

So, in a capitalist society all law is unjust as it represents the means by which one class oppresses the classes below it.

Marxist views of justice are therefore based on the redistribution of wealth. This is a good outcome for the many but not for those whose wealth is being redistributed.

Robert Nozick1938 - 2002

In his 1974 essay, Anarchy, State and Utopia, Robert Nozick defined what he believed a just society was.

It was where the state had the least possible power to interfere with the rights of the individual.

If property had been gained fairly then the state should have no right to interfere. The redistribution of wealth is unjust because it interferes with an individual's basic rights.

Problems arise though when trying to balance purely economic considerations with the notion of justice.

In Re. B (1996) a little girl who was suffering from leukaemia. She had already received treatment which had been unsuccessful and her father had wanted her to have more treatment. The health authority refused.

Is this just?

Would it be more just to spend £100,000 on one life saving operation, or £10,000 each on ten smaller operations?

To what extent do legal rules achieve justice?

How can the English legal system achieve justice when it means different things to different people?

Marx and Nozick, for example, have completely opposing views on the meaning of justice.

The ability of the legal system to achieve justice does depend on certain, potentially conflicting, factors.

1. Treating like cases alike.

This is the justification for the doctrine of judicial precedent. It is also seen in sentencing policy and assessing damages.

2. The need for discretion.

But, that said, for the law to be just it may depend on discretion to be used in order to meet the needs of individuals (treating people and cases differently).

The need to avoid injustice is one of the principles behind the creation of the Practice Statement 1966, which gave the Supreme Court the power to change their own previous decisions

But ...

Jones v Secretary of State for Social Services (1972) is an example where the House of Lords thought the current law was unjust but decided not to change the law. They believed that consistency was more important!

Is this just?

In the case of Ahluwalia (1992) it was clearly unjust to state that battered women could not use the defence of provocation for murder.

Effectively the courts were treating these women the same as a serial killer and the sentence would be life in both instances.

This lack of discretion is clearly unjust.

How does the criminal law achieve justice?

Criminal law deals with justice in 2 ways.

1. Grading crimes according to their seriousness:

Taking into account the 'wickedness' of the crime, the extent to which the crime causes social alarm, the extent to which it interferes with personal/property rights etc.

For example, murder is one of the worst crimes because of its wickedness and the burglary of a house is considered worse than the burglary of a commercial property.

2. Sentencing policy:

This will reflect the seriousness of the crime and factors such as whether the crime is a first offence or whether the D is a repeat offender.

The aims of sentencing reflect different definitions of justice.

a) Retribution - is directed at the most serious crimes like murder and robbery with potential lengthy prison sentences.

b) Denunciation - this reflects the need to show society's disapproval of the crime.

c) Reparation - the V should, in some way, be 'repaid' for the effects of the crime (corrective justice?)

d) Rehabilitation - the system should help the D to reform.

Another example of apparent injustice can be seen in the case of E v DPP (2005).

The D was a 15 year old boy charged with unlawful sexual intercourse with a girl under 16 under s. 6 of the Sexual Offences Act 1956. The girl was also 15 and was a willing participant.

The defence argued that this was contrary to 3 articles of the European Convention of Human Rights.

Art. 6 - the right to a fair trial;

Art. 8 - the right to respect the D's private life;

Art. 14 - the right not to be discriminated against on the grounds of sex (gender).

The CA stated that there was no breach of human rights and upheld the conviction.

But is this just?