Achieving Justice

Procedural justice - concerns the process by which decisions are made

Substantive justice - concerns a just end result

The system may be formally just in the way it operates but it still produces inequality

Procedural justice can be seen within the rule of judicial precedent, where judges have to follow previous decisions under the doctrine of stare decisis.

Cases decided alike

Can lead to unjust outcomes. For example before the 1991 decision in R v R, husbands accused of marital rape were not found guilty.

This was because previous precedent confirmed that the wife, having vowed to obey him, became the husband's property

Followed rules of was procedurally just but substantively unjust as it led to unfair outcomes

Donoghue v Stevenson - owe duty of care to consumer
Grant v Australian Knitting Mills - owe duty of care to consumer

Procedurally just as consistent outcome

The Supreme Court can depart from its own previous decisions when it is "right to do so"

R v Caldwell = objective reckleness
R v R and G = subjective recklessness

Sentencing Guidelines = Encouraging consistency

Aggravating and Mitigating Factors = Allow fair outcome

Equality before law

R (Public Law Project) v Lord Chancellor = Plans to introduce a residence test which would have to be passed for a person to be eligible for civil legal aid

Right to a fair trial

Re Pinochet = Representation of Amnesty International set aside earlier decision therefore no appearance of bias

No man can be a judge in his own cause

Right to Appeal

Investigatory Power Tribunal

s.242 Investigatory Powers Act 2016

Pinnel's Case even if parties agree to pay part sum of debt on day due , this is not legally binding, the party owed the money is still entitled to recover entirety of sum owed to them

Part payment of debt is not good consideration

High Tree -promissory estoppel going back on work which other party relied on no allowed

Law of equity can operate to achieve substantively just outcomes where a strict application of common law principles would be unfair

General Defences in Criminal Law

Only those who acted voluntarily are convicted

If D acts without voluntary control they will be acquitted on grounds of automatism - Hill v Baxter

if party too intoxicated to form the mens rea for a specific intent crime such as murder, their conviction will be lowered to manslaughter

Unfair tp convict without MR - R v Sheehan v Moore

Failing to achieve procedural justice

Cuts to Legal Aid budget has left many unable to qualify for free legal advice even though they cannot afford it


Fallen £950 million per year since 2012

Even those who qualify may be unable to find a provider - in 2018 the BBC discovered that over a million peoplet live in area with no legal aid law firms

Number of people receiving legal aid has fallen by 80% in the last 8 years, This means people are arguably being fenied legal representation in cases where the otherside can afford one

In some cases. legal aid had been denied where the case related to taking a persons child into care, leaving the party to represent themselves

Contrary to rule of law where there should be equality before the law

Even if procedural justice in present, this will not prevent injuries if a rule is substantively unjust

Defence of duress and necessity do not extend to murder, the courts preferring a morally absolute view. In Dudley & Stephens the defence of duress failed because they had committed murder and ate him

Howe defence of duress failed because law could not allow a man the right to take an innocent life instead of his own; rather the law should set a standard of heroism

Some argue that this is unjust as it ignores cases in which the defendant's will has genuinely been overpowered

Considering the standard of care expected in negligence cases, the law does not take the defendants inexperience into account, instead judging defendants against the objective standard of the reasonable man

Nettleship v Weston a learner driver was judged against the standard of am experienced driver, even though this is arguably unfair when D is not capable of achieving such a standard

Even with procedurally just rules such as right to appeal and even assuming substantively just legal principles, injustices may still occur

For example , the Guildford Four served 15 years in prison for the Guildford pub bombing in 1974

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Law and Justice

Theories of Justice

Lord Wright; "what appears just appears just ot the just man"

Plato - Justice is harmony between the different parts of society. It is an absolute value that transcends local customs or conventions and is an indispensable quality of moral life

Plato's concept of justice is based on the submergence of individual in the society, It refers to the whole duty of man and not merely his legal duties

MORAL ABSOLUTISM

Justice is absolute - it does not change depending on the situation

Aristotle - Justice means equality, but only for those who are equal to begin with

Numerical equality would mean everyone gets equal share, whereas my idea of proportional equality allows people to obtain goods proportional to their enititlement

Although we should seek to treat people equally, we cannot make everyone equal

Corrective justice - Dispensed by the Court to punish those breaking the law

Distributive justice - Doing economic justice; should be done by law makers

Aristotle sees the purpose or telos of society as to promote good action; human virtue is the supreme good

Though state or polis should nuture the skill of practical judgement, participation in democracy and concern for the community's well-being

Moral relativist; He accepts what is just may change

Kant - A good will is not good because of what it accomplishes it is good only through its willing i.e it is good in itself

Good is not based on act but on the principle of the act, good in itself. As ability to carry out acts for their sole purpose and duty

Duties are imperatives as either hypothetical and categorical.

  • Hypothetical imperatives come from goal
  • Categorical imperatives, spur us to act for the sake of the act itself and are universal

Kant's categorical imperatives require us to act as if our values should apply to everyone. We should follow these regardless of out own desires or the potential outcomes

We should not steal because it is wrong to do so rather than just in order to avoid jail

Kant only regards an action as moral if you have a duty to do it

acting for other reasons not considered

Moral absolutism: Justice is absolute

Economic views of Justice: Nozick

Individual freedom and liberty are central to justice

State should not interfere with property owned by its citizens; to do so would be unjust

Stare should only perform the most basic of functions such as protecting our safety and providing justice

Taxation itself is unjust as it interferes with individuals rights ; a just society is one which least interferes with the rights of the individual

Redistrubiton of wealth and state interference would be unjust as it would interfere with individual basic rigjts

Critics of Nozick point out that in following his ideas greater liberty is secured but this may at the expense of the majority

For example an employer would have the freedom to determine the operation of his business but this may result in unfairness for his workforce

Jeremy Bentham - The justness of an action is determined by its utility

Utilitarianism

More an action creates happiness, the more good it creates

An action is just if produced the greatest good for the greatest number

Stuart Mills- Justice involves respect for other people, their rights and their property

Utilitarianism

These principles together with acting impartially and in good faith, will increase overall happiness

Critics of utilitarianism point out that it enables the interest of an individual to be sacrificed for the greater happiness of the community

Tyranny of the majority

Stefan Kiszko man falsely imprisoned

Rawls - Justice is fairness, rooted in the idea of the social contract

imagines a hypothetical situation in which all are free and rational and not aware of their own interests or status

Argues that such free and rational person would accept an initial position of equality

The principle of justice, or fairness, should reguate all further agreements including specifying the types of social cooperation that can be entered into and forms of givernement that can be established

Fairness is fundamental to justice

  • Each person is to have an equal right to the extensive total system of basic liberties
  • Social and economic inequalities are to be arranged so that they are both a) greatest benefit of least advantaged
    b) attached to offices and positions open to all under conditions of fair equality of opportunity

Differs from utilitarism Bentham as recognises the importance of individual rights

Would see success of wealth of doctor for example as acceptable as his work benefits the least advantaged

Rawls is not prepared to sacrifice individual rights for what utilitarian would see as the greater good

Economic theories of justice: Marx

Capitalism is unjust because it protects individuals with wealth at the expense of the social needs of many

All laws within a capitalist society are therefore unjust because they support one class oppressing the class below them

Rejects Law as neutral body of rules; society is based on conflict not consensus

Law is a tools where the wealth exploit the poor

Distributive justice

Critics of Marxism argue that it would be unfair to impose conditions on the wealthy to redistribute their wealth amongst society, as this would be an infringement of their individual liberty

Therefore the redistributive of wealth and state interference would be unjust as it would interfere with individual basic right

Libertarianism

Fairness