A-Level法律-法律与正义Law and Justice
Revision: Law and Justice
Justice means different things to different people, so is very hard to define. Generally it means fairness and equality.
Rule of Natural Justice:
This states that we must have both sides to a story, for example having witnesses come forward.
Rule of Law:
This states that we are "All equal before the law and in order to achieve justice we must all have equal access to the courts." i.e. we are all must follow the law so it should also be there to help us. E.g. Legal aid
We need these doctrines because before Human Rights Act we didn't have a bill of rights such as the American Constitution.
Theories of Justice
Said we have two types of justice, distributive and corrective
Distributive - All benefits and burdens should be distributed fairly. This does NOT mean equal distribution of wealth, only that everything is fair. An example of this reflected in our laws are benefit laws etc.
Corrective - If anyone tries to upset this fair distribution then their behavior should be corrected. For example courts, prison, compensation, injunctions etc.
Said that the only way to achieve true justice is if we create an 'original position' This is a group of people who are behind a 'veil of ignorance' which means that they are unaware of their social status, abilities, background, place in society etc.
His point being that the people who make the laws have their own agenda, so you can't achieve true Justice.
If you get wealth legally and fairly, then it should be yours to keep. However those who don't have any wealth shouldn't be helped. The problem with this theory is that some can't afford training for a good job.
He believed that the law is made to protect the middle class and their property from the working class. He thought everyone should be equal.
The Relationship between law and justice
These are mechanisms in place in order to try and underpin a just society. for example: Judges and Lawyers. We have Montesque's Seperation of powers, ensuring none of the 3 groups do anything unjust.
Judges are also free from financial and political pressure. Barristers have the Cab Rank rule, to ensure everyone is represented.
However, judges are usually from middle class backgrounds, and there is a lack of women and ethnic minorities. Trial by peers means that they have local knowledge.
Due to the Criminal Justice Act 2003 judges can now sit on Juries, so is it still trial by peers?
They have no legal training and often bow to media pressure. Lord Dennings said "The jury is a corner stone to a civilized society."
These are mechanisms we have in place to ensure a just outcome.
We have stare decisis (like cases treated alike) which underpin the development of the law and it is a key to consistency. House of Lords have the Practice Statement 1966 which allows them to over turn an unjust decision. However to ensure consistency, they rarely use it. FORD (follow, overrule, reverse, distinguish) ensures that each case is treated on its own fact.
We have varying tariffs e.g. 2-5yrs which allow pre-sentence reports, mitigating and aggravating factors to be taken into account. The victim however may argue that it is TOO fair on the defendants Life also doesn't always mean life.
Miscarriages of Justice
Despite the attempts to ensure justice, we do still sometimes get it wrong.
E.g. Steven Downing was wrongly imprisoned for 26 years. Although he got ￡250,000 compensation because he is so institutionalized he can't pick up his life again.
It is a very long, drawn out process in order to get someone released, however we do have the Criminal Cases Review committee who look at cases of those who are adamant that they are innocent.