law and justice Flashcards
(59 cards)
law definition
Sir John Salmond ‘body of principles and applied by the state in the administration of justice’
justice definiton
just behavior and treatment
miscarriage of justice definition
failure of court or judicial system to come to a just conclusion
plato definition of justice
Harmony between the different sectors or classes in society
lord lloyd definition of justice
‘the means of a man in order to attain a good life’
Chain Perelman definition of justice
Justice cannot be studied logically – it is based on a persons subjective values
what are the 6 key ways he defines justice
(to each according to his…)
needs
works
merits
rank
legal entitlement
equality
what are the problems in defining justice (4)
Perelman argues that defining justice is impossible because it is subjective. This idea is reflected in Lord Wright’s view that justice is whatever appears just to a just person, similar to how reasonableness is judged by a reasonable person.
Some see justice as equality, but it often focuses more on equity—ensuring fairness by balancing the scales. For example, in tort law, compensation aims to restore the claimant to their original position before harm occurred.
E.g. tort law remedies – compensation aims to put the claimant back in the position they would have been in had the tort not occurred
whats a counterpoint
Seen in Lord Wright’s definition of justice
“…the guiding principle of a judge in deciding cases is to do justice…What is just in a particular case is what appears to be just to the just man, in the same way as what is reasonable appears to be reasonable to the reasonable man”
The law needs to maintain a balanced, middle-of-the-road view to attempt to achieve justice for all
This can be seen through the use of jury trials (12 people deciding gives an average)
Also sentencing guidelines for judges which try to ensure consistency in sentencing practice
what are the 4 types of justice
Formal
Substantive
Distributive
Corrective
formal
justice is achieved when correct procedure is followed in making and upholding the law justice is ac
substantive
justice is achieved through the substance and content of the law ensuring legal rules are just and fair
distributive
achieved by ensuring the distribution of resources in society is done fairly
corrective
justice is achieved by punishing thosw who have done wromg in order to rebalance the scales
FORMAL/PROCEDURAL JUSTICE examples (6)
police
courts/ judiciary
roles of juries
appeals
legal aid
the rules of law
police explanation/ example
PACE procedures ensure there is due process in the law and that suspects are given rights such as access to a solicitor which helps to ensure they are treated justly
courts/ judiciary
Courts/ judiciary foollow set procedusres and are governed by the rules in article 6 which protect the right to defend yourself in court including factors such as discolure of evidence
roles of juries
Ensures there is a ‘trail by your peers’ which supports just decision being made – including jury equity (e.g colson statute case)
appeals
Allowed which ensure any issue in the administration of justice are addressed- such as PACE processes not ebing followed or defences not being raised which should habe been (alhuwalia and diminshed resp- killed husband abusive first murder then manslaughter on appeal)
legal aid
Provided to achieve access to justice and help those on low income oay for a solicitor/ barrister to help them defend themsleves which increases the chance of getting justice. Former hustice secretary ken clarke ‘ I genuinly believe access to justce is the hallmark of a civilised society’
the rule of law
Followed meaning no one is above the law and no one is below the law- e.g in a and others the discriminatory laws doe terror suspects were declared incompatible due to treating suspects as if they were below the law
what is substantive justice
whether the substance of legal rules deliver justice
why does this exist (4)
AR must be voluntary
MR must be present- and a defence will take away this making the law fair
Howeverm defences such as intoxication and insanity may make the law unfair
Different level of mens rea for more serious defences (e.g gbh s20 v s.18)
what can we talk about from tort law in this (2 cases)
Negligence requires a duty of care which is only imposed if its ‘fair, just and reasonable’ (Hill) and uses objective test for breach (standard of reasonable man- Blyth)
Occupiers liability imposes a duty to protect forseeable injuries to tresspassers (herrington v brb)
Strict Liability rules for Rylands v Fletcher and vicarious liability allow a remedy for claimants suffering injury
