Law And Justice Flashcards
(56 cards)
What is the simple meaning of justice?
The law is ‘fair in how it punishes wrongs and protects rights.
Why is it difficult to define justice?
Academics have struggled to create a common definition of justice due to its subjective nature.
What are the four types of justice?
Corrective, distributive, formal, and substantive.
What is corrective justice?
Corrective justice means the reversal of wrongs where the imbalance between two parties is restored.
How does the law achieve corrective justice?
In criminal law, an aim of sentencing is retribution, where the victim gains revenge and the offender gets his just desserts. In civil law, compensatory damages aim to restore the claimant to their original position.
What factors contribute to corrective justice in criminal law?
The presence of aggravating and mitigating factors in sentencing and contributory negligence in civil law contribute to corrective justice.
What are some criticisms of the law’s provision of corrective justice?
High levels of re-offending, inconsistent sentencing, and reluctance to impose custodial sentences due to overcrowded prisons.
What issue arises in civil law regarding corrective justice?
There is often an inequality of bargaining power when negotiating damages.
What is distributive justice?
Distributive justice means the fair allocation of resources such as wealth, power, and rights.
Favoured by Aristotle, Marx, and Perelman.
How does the law achieve distributive justice?
The law achieves distributive justice through antidiscrimination laws, the introduction of the minimum wage, and the re-allocation of wealth through tax laws.
Examples include the Sex Discrimination Act 1975 and Race Relations Act 1976.
What are some limitations of the law in providing distributive justice?
The law struggles to fairly allocate resources regardless of class, wealth, gender, race, or disability.
Examples include the McPherson Report, statistics on stop and search, and tax evasion by the wealthy.
What is formal justice?
Formal justice means that legal institutions follow fair procedures to make fair decisions.
How does the law achieve formal justice?
The law achieves formal justice through the appeal system, availability of legal aid, and trial by peers.
Lord Devlin described the jury as ‘the lamp that shows that freedom lives’.
What are some limitations of the law in providing formal justice?
The appeal system favours the wealthy, legal aid availability has decreased, and lay people can be biased.
Example: In Jowitt, a magistrate admitted to always believing the police.
What do recent miscarriages of justice suggest about formal justice?
Recent miscarriages of justice suggest that the law does not provide formal justice satisfactorily.
Examples include the Birmingham 6, the Guildford 4, and the Post Workers case.
What does substantive justice mean?
Substantive justice means that the legal rules themselves must be fair and in proportion to the issue they are trying to resolve.
For example, murder must carry a very high prison sentence.
How does the law achieve substantive justice?
The law recognizes different levels of fault.
Examples include different levels of mens rea in criminal law.
What is mens rea?
Mens rea refers to the mental state of the defendant at the time of the crime, representing different levels of fault.
Direct intention is defined in Mohan as ‘desiring the outcome’, while subjective recklessness is defined in Cunningham as ‘the defendant foreseeing a risk and carrying on regardless’.
What are some defenses that indicate different levels of fault?
Defenses such as insanity (M’Naghten Rules 1843), automatism (Bratty v A-G for Northern Ireland), and consent (A-G’S Ref No 6 of 1980) reflect different levels of fault.
How do sentencing options reflect fault?
Sentencing options range from a custodial sentence to a discharge, indicating varying levels of fault.
However, a verdict of ‘not guilty by reason of insanity’ may carry a negative stigma.
How is fault recognized in tort law?
In tort law, fault is recognized by the duty of care test from Caparo v Dickman and the breach of duty ‘reasonable person’ test from Blyth v Birmingham Waterworks.
The remoteness of damage is assessed by the ‘reasonably foreseeable’ test from Wagon Mound No1.
What is a criticism of substantive justice in murder sentencing?
The mandatory life sentence for murder is criticized as it may be too harsh for certain cases, such as in Gray, where a parent gave a fatal overdose to a terminally ill child.
What is a criticism of diminished responsibility as a defense?
Diminished responsibility is applied unfairly, as seen in cases like Byrne and Ahluwalia, where individuals with different backgrounds could equally use the defense.
What is an example of inconsistency in the use of consent as a defense?
Consent was accepted as a defense in Wilson but not in Emmett, demonstrating that a ‘one size fits all’ approach does not work.
