Law and Justice
THEORIES OF JUSTICE

Plato
In Plato’s major work, The Republic, he used Socrates as a mouth piece to develop his on view of justice. Socrates outlines his, i.e Plato’s view of justice both for the individual and for society. Dealing with the man first; a man’s soul has 3 elements: 1. Reason 2. Spirt 3. Appetite or desire
A man is just when each of these three elements fulfils its appropriate function and there is a harmonious relationship between them.

Within society there are three groups society is just hen each class fulfils its appropriate function and there is a harmonious relationship between them.

Therefore Plato viewed justice as harmony between the warring elements.

Distributive Justice
This is concerned with fairly shaking the benefits such as money, property, family, takes and civic duties of life within an organisation.

Aristotle
Aristotle stressed the need for proportionality and achieving the middle ay and a proper balance between extremes. He said a ‘just state’ ill distribute its wealth on the basis of worth (merit) therefore giving to each according to their virtue and contribution to society. He stated there was a need for corrective justice to ensure that individuals can keep what they are entitled to. The role of the court is making sure the offender does not benefit from his crime ad victim does not suffer loss. In this sense, the balance or ‘middle way’ is achieved.

Thomas Aquinas
Illustrated his view of natural law as an inherent part of nature and exists regardless ‘general principle of giving what is due to them’. He believe justice occurs when incorporating natural law into the legal system. Thomas also spoke of communicative justice which is the exchange of goods or services between people which is governed by equality. He also believed in natural law supported by Aristotle; the higher order of law. With the notion that if society followed this order then it will be just.

Karl Marx
‘’To each according to his ability, to each according to his need’’ he developed 2 principles of the ideal communism: 1) Each will maximise his common wealth by making full use of his abilities. 2) Each will receive according to his need, without consideration of the personal contribution he has made to the production process.
Aristotle regarded this mode of distribution as to the least productive which are less deserving members of society.

Chaim Perelman
Perelman produced a study of justice, called De la justice, here he discussed the folloing different understandings of justice: 1) ‘To each according to his merits’ – meaning each person is treated in the manner he deserves 2) ‘To each according to his needs’ – A fair allocation of resources to those who need them. 3) ‘To each according to his works’ – measures n individuals rewards according to the contribution he has made. 4) ‘To each equally’ 5) ‘To each according to his rank’ – rank may refer to social status 6) ‘To each according to his legal entitlement’ – This is a right-based system
Perelman concluded that justice cannot be studied logically, as each attempt to define it is based upon a person’s subjective values.

UTILITARIANISM

Jeremy Bentham
He created the term utility as what makes an action right or wrong is the usefulness, or value of the consequence it brings. The more an action increases over all happiness, the more valuable it is. He said that maximising happiness is the objective of justice. To help measure this Bentham developed a mathematical formula, known as the ‘felicific calculus’. One of the criticisms of utilitarianism is that the interest of an individual may be sacrificed for greater community.

John Stuart Mill
He produced a pamphlet supporting the principles of utilitarianism put forward by Bentham. He explained that justice includes respect for good faith and impartiality. Mill argued that punishment is in itself an evil as it involves inflicting harm or pain, and can only be justified inflicting harm or pain, and can only be justified where it brings a greater benefit, such as public orders.

Act and rule utilitarianism
Under act utilitarianism, the rightness of an act is judged in isolation to see whether it adds to, or subtracts from, the sum of human happiness. SOCIAL JUSTICE

John Rawis
He described justice as fairness, and then presented a hypothetical society where each member would distribute its resources in a disinterest manner. To make this possible, nobody would know in advance that their position in that society would be, nor what stage of that society’s development he would be born into; he would operate behind a ‘veil of ignorance’. Rawis believed that, on this basis, benefits and burdens would be distributed justly. The main criticisms of Rawis theory is that it is purely hypothetical; starting a society from zero would be impossible, so his theory of justice is impossible to implement.

Robert Nozick
He developed an entitlement theory of justice, which consisted of three principles: 1) A principle of justice in acquisition, dealing with how property is initially acquired 2) A principle of justice in transfer, dealing with how property can change hands. 3) A principle of rectification of injustice, dealing with injustices arising from the acquisition or transfer of property under the two principles above. This principle wouldn’t be required if the world was just.
Where a person obtains property in accordance with the principles of acquisition of transfer, he is entitled to keep that property. Where a person obtains property by theft or fraud or other unjust means, the third principle provides a remedy. This is a free market, libertarian form of justice.

PROCEDURAL LAW

Social justice: Legal aid
Legal aid is government money made available to support people to assert or defend their rights in court. Legal aid is an important element in promoting social justice as in a democratic society all citizens have a right to access justice, to receive a fair hearing and to understand their legal rights and obligations. The legal aid budget is limited, this can restrict access to justice in certain situations.

Corrective justice: Sanctions and damages
Judges passing a sentence to an offender, they will take into consideration aggravating and mitigating factors, and sentencing guidelines. Aristotle argued that the role of the court is to ensure that the gains and losses of each party are equalled out so that the offender doesn’t benefit from his wrongdoing and that the victim doesn’t suffer a loss.

However, John Stuart Mill did not accept the validity of a retributive approach and said all punishments as being evil in themselves. Aristotle’s model is reflective of the award of damages in civil law. In tort law, negligence claims, the aim of compensation is to restore the claimant to his pre-tort position.

In Jebson v Ministry of Defence the court held that the D had contributed to his own injuries by being drunk on his return to the barracks. Thus, 75% of the claimant’s awards as reduced. This promotes fairness and justice to both D and C.

The criminal process: The trial The trial by jury enables the case against the D to be decided by their peers, who can apply their view of justice rather than adhere strictly to the rules of law.

Ponting in this case the judge told the jury that any public interest in the information did not provide a defence, and yet they acquitted him. A jury does not have to give reason for it decisions.

Appeals
Within the English legal system there is an opportunity for a case to be appealed. However, leave to court is required and this is at the discretion of the court.

Miscarriage of justice
Although the English legal system strive towards justice, there are however situations where injustices may arise eg. The Birmingham Six, the Guildford four. This led to the Criminal Case Review Commission (CCRC) being established. The CCRC provides a safety net for those whose appeals are refused. It was set up to prevent miscarriages of justice.

Rules of natural justice
Natural justice generally refers to the rules that confirm the proper procedures have been followed.
Two basic principles: 1) Tribunals must not only be impartial (but seen to be). As per Pinochet. 2) Each party to the dispute must have an opportunity to present his own case and answer the case of his opponent. As per Ridge v Baldwin.

SUBSTANTIVE JUSTICE

Criminal law: mandatory life sentence
The mandatory life sentence satisfies our expectations that the harsher the criminal offence the higher the sentence. The majority agree that imposing a life sentence on a killer is just. Some murderers are far less culpable than others so the setting of a tariff does not allow for proportionality and thus, may lead to harsh decisions.

Cocker the D’s wife insisted he suffocated her with a pillow as she was terminally ill. The trial judge denied the partial defence of provocation leaving the jury with little alternative than to convict him for murder.