Law and Justice - example essay

There are many different theories of justice. Using criminal or civil law or both, consider the extent of the relationship between law and justice.

When it comes to law and justice, we would expect that justice is the word of law itself, or that the sole purpose of law is to promote justice. Laws are rules of conduct or action imposed and enforced by the state (Austin), which has coercive power (Hobbes). Justice is the concept of fairness and equality which expects that laws should be non-discriminatory and non-arbitrary, promoting justice and fairness for everyone in society. Aristotle was one of the earliest philosophers to put forward the view that all law should promote justice. However, there are many instances where law and justice do not easily coincide. The most obvious being the so-called ‘miscarriages of justice’. The existence of the Criminal Cases Review commission is illustrative of these mistakes which have led the law to treat people unjustly.

Furthermore, Lord Wright opines: ‘what is just in a particular case is what appears just to the just man.’ This shows people’s concept on justice would differ widely. However, justice can be seen in the idea of conformity and is actually the basis of the doctrine of stare decisis in law, treating like cases as like. The problem is that such rigidity may lead to injustices, such as in Ahluwalia, where the decision practically meant that a person who killed while having Battered Women Syndrome would receive the same punishment as a serial killer. This showed that the defence of provocation was essentially a man’s defence and thus discriminated against women. Another case is R v R (1991) where the judges changed a 200 year old rule entitling a man to rape his wife, which would be extremely unjust in this day and age. Injustice in law can also be seen in apartheid laws of South Africa or Nuremberg laws of Nazi Germany.

There are varied theories of justice. Sir John Salmond stated that justice can be seen as based on two main ides; substantive justice, which relates to rules being fair but formal. Procedural justice – in that the rules must be applied in a fair way. Aristotle identified two types of justice: Distributive justice which is the allocation of assets such as wealth and honour, in a proportionate way, not based on equal shares but based on the contribution made by each individual. And corrective justice which applies when distributive justice is interrupted by wrongdoing and involves punishing the offender and giving compensation to the victim. Natural law theory is based on the idea that there is a higher order of law and if society follows this order, then it will be just. Aquinas said this came from God and if law conflicted with natural law it is not to be obeyed, unless this leads to social disorder. However, Lon Fuller considered that there is an inner morality which would form the basis of justice. Utilitarian philosophers. Positivist, like Hart believe that law is law and it should be followed absolutely, even if it conflicts with morality. Kelsen said that law should be followed even if it was immoral, as he considered justice too vague a concept.  Bentham and Mill would have considered law just if it gave the greatest happiness to the greatest number of people, but would not have considered the individual, despite the fact that this could lead to inequality.

Law inevitably is used to support political philosophies in the name of justice. Karl Marx argued that Capitalism is unjust and protects individuals with wealth at the expense of the social needs of many and its law is unjust as it represents means by which the upper classes oppress the lower classes. On the other hand Robert Nozick states that if property is gained fairly the state should have no right to interfere, thus redistribution is seen as unjust. However, all economic views present problems. In Re B a little girl was suffering with leukemia. Her farther wished for the health authority to continue with treatment. The health authority refused to find it and were successful on the basis that their refusal was a clinical rather than economic decision. In R v Gloucestershire CC ex parte Barry the court allowed a local authority to avoid its statutory duty to provide welfare services based on an assessment of their available resources. One could argue that the judgement ignores the basic justice of the situation. Thus achieving justice depends on conflicting factors. The mandatory sentence in murder denies the judge discretion in individual cases. The stigma attached to a murder whether BWS (Ahluwalia) or a serial killer (Peter Sutcliffe) is thus the same. This is certainly unjust.

The law deals constantly with the concept of justice. Crime surveys, and victim impact statements demonstrate the need to be fair to the victim. However, injustice does occur. In the case of E v DPP a 15 year old boy was charged with unlawful sexual intercourse with a girl under the age of 16 contrary to s6 Sexual Offences Act 1956 (since repealed) the girl was also 15 and consented. The fact that the boy received a criminal conviction and the girl seen as the victim was unjust under the circumstances and could have breached article 14 of his human rights – the right not to be discriminated against on the ground of sex. This is not Aquinas’ concept of due proportionality, nor does it achieve equality.

While the law and justice will not always agree, the law ultimately seeks to achieve justice. Juries’ equity illustrates this, but shows how difficult it is to achieve (Aristotle’s) corrective justice. In Ponting’s case (1985), the jury refused to convict when D leaked information on the sinking of the General Belgrano. The decision by the jury would be basically fair, but was corrective justice really achieved? Failure of the legal system be correctively just is seen in many more cases, such as Bridgewater Four, who served many years in prison and one of them died whilst in prison. The investigation was later found to be flawed. Achieving justice in Britain is far from easy but the fundamental rules seem to be fair. Although law does not always achieve justice, one undeniable fact is that justice cannot be studied logically, each attempt to define it is based upon a person’s subjective values (Chaim Perelman), hence the discretion of the judge and juries’ equity in most cases to try to achieve what is just in each situation.