Law and Justice Flashcards
(23 cards)
Define justice
- The primary aim of every legal system
- Dictionary = fair and just
–> Fair = free from discrimination
–> Just = doing what is morally right and proper
How does Lord Lloyd describe justice?
- Cannot be defined
- Aim or purpose to attain a good life
What is pluralism?
A country with a multicultural society
What are Perelman’s 6 meanings of justice?
- 1) To each his worth (reward based on contribution)
- 2) To each his need (means tested)
- 3) To each his merits (get what they deserve)
- 4) To each his rank (status and privilege)
- 5) To each his legal entitlement (law determines reward)
- 6) To each equally (all receive the same)
What are the 4 types of justice?
- Procedural (process of the law)
- Substantive (criminal, tort, HR)
- Distributive (fair allocation, distribute resources and burden evenly, eg. NMW, legal aid)
- Corrective (right wrongs through remedy and punishment)
What are the two main theories of justice?
- Natural law theory
- Positivism
What are the 3 smaller theories of justice?
- Utilitarianism
- Economic theory
- Social libertarianism
What is natural law theory?
- Follow a higher order of morality
- Based on moral concepts of right and wrong
Who are the 4 main theorists of natural law theory and what are their views?
- Acquinas = good and God
- Aristotle = law should follow nature
- Devlin = judges should impose morality
- Kant = categorical moral imperatives (deontological)
Give some examples of natural law theory in practice
- Murder/theft = biblical rulings
- Neighbour principles (Donogue v Stevenson) = love thy neighbour
- Human rights = protect individuals from unfair treatment
- Rule of law = no punishment without law, equality
- Trial of innocence and guilt
What is positivism?
- Legal rules should be distinctly different from morals
- Justice achieved through sovereign law maker imposing laws
Who are the 3 main theorists of positivism and their views?
- Austin = command theory
- Kelsen = law is a normative system
- Hart = positivism overlaps morals
What is utilitarianism?
Achieving the greatest good for the greatest number (often ignores minorities)
Who is the main theorist of utilitarianism and his beliefs?
Bentham = natural law theory is “nonsense on stilts”
Give some examples of positivism/utilitarianism in practice
- SLO’s (Tillstone)
- State of affair (Winzar)
- Intoxication (Kingston)
- Consent (Brown)
- Thin skull rule (Blaue)
- Tort defence of public benefit (Miller v Jackson, Watt v Hert CC, Hill v CC West Yorks)
- No blanket immunity (Robinson v CC)
- Re A = “this is a Ct of law not a Ct or morals”
Who are the 2 main theorists of economic theory and their beliefs?
- Marx = capitalism fails to achieve distributive justice (only communism can)
- Rawls = veil of ignorance (only achieve if everyone treated equally)
What is social libertarianism?
- Minimal intervention = state should only intervene if absolutely necessary
- Harm principle = freedom unless harming others (only restrict freedom to promote liberty of others)
- Argue against paternalism
Who are the 2 main theorists of social libertarinism?
Rawls + Nozick
What are some examples of social libertarianism in practice?
- Sadomasochism (Brown)
- Sport (Billinghurst)
- Body art (Wilson)
Give examples of miscarriages of justice
- Guildford 4
- Birmingham 6
- Stephen Lawrence
- Sally Clarke
- Emma Humphreys
- Andrew Malkinson
Evaluate idea of justice
- Justice
–> Hard to define because of moral ideas
–> Hard to achieve due to subjectiveness and pluralism
–> Not always consensus
Evaluate the types of justice
- Procedural
–> Pros = trial by peers (Ponting), non political (Miller), independent (Pinochet), trained judges, always seeking to achieve (appeals), due process increases fairness
–> Cons = random not always fair (Ford), jury nobbling (Twomey), inconsistency, judges not elected (unrepresentative, Brown), expensive and so inaccessible, still miscarriages of justice - Substantive
–> Pros = precedent ensures consistency and equality, common law affords flexibility to avoid miscarriages, max certainty
–> Cons = rigidity, utilitarian but not always moral, fragmented nature makes hard to apply (unclear and inaccessible), liability without fault - Corrective
–> Pros = achieve justice for V/C for financial loss, acts as a deterrent, public protection
–> Cons = unduly harsh, state purse, focus on punishment, may not have means to pay damages, cannot compensate for injury/death - Distributive
–> Pros = fair on those less able, essential to held society function
–> Cons = unfair to those who work harder, disincentive, doesn’t penalise individuals as much (shared burden)
Evaluate the theories of justice
- Natural law theory
–> Pros = strong moral principles often shared by society (murder), protect minorities
–> Cons = hard to apply in pluralistic society due to lack of consensus, harder in modern times due to decreased influence of religion - Positivism
–> Pros = justice for the majority, makes society function, easy to implement
–> Cons = penalise minorities, hard to identify best approach (without aids eg. bible), not consider the rights of the individual (more miscarriages of justice) - Economic theory
–> Pros = achieve distributive justice, fair on people less able to work
–> Cons = never effectively put into practice (liberal democracy = capitalism) - Social libertarianism
–> Pros = less paternalistic, less chance for interference to go wrong, inexpensive, equality
–> Cons = fails to protect young and vulnerable, idealistic (assumed inherent good)
