It is difficult to determine whether the English legal system achieves justice or not, as the English legal system uses precedent to create, apply and enforce justice. however , bad precedent frequently creates injustices as seen in R v R 1991. This was hugely significant as it showed the injustice women frequently faced and the idea that until 1991 it was legal to rxxe your wife.
Law is defined as a set of standardised procedures and mechanisms used in the enforcement of basic rights and regulation in society or as stated by Sir John Salmond “principles used in the administration of justice. Law and Justice are frequently seen as synonymous ideologies, with the law supposedly bringing justice for those wronged. However, justice many be more difficult to define than seen on face value, as stated by Lord Lloyd, due to its subjectiveness. It is most simply defined in the Oxford English Dictionary as “just conduct; fairness”. However to some this definition may require other qualities such as equality or even handedness and this subjectiveness allows it to be open to discussion. Plato established one of the first definitions of justice as “harmony between different sectors or classes in society. Aristotle continued this by stressing the importance of proportionality and the middle way, which is a concept still reflected in the English legal system today. Aquinas expanded on this with his natural law theory and his idea that justice governs our relationships with other people.
There are 3 all encompassing theories that provide the framework for the more specific areas. The first is Aristotle’s theory of distributive and corrective justice, the second was made in response to this, utilitarianism and the final is social justice theory.
Aristotle introduced two theories of justice; distributive and corrective justice.
Distributive justice regards the fair allocation of the benefits such as money or property. However there is no consensus provided as to how distributive justice should be applied with Aristotle, Aquinas, Marx and Perelaman all attempting to present and explain this theory throughout history.
Aristotle believes a just state would distribute wealth based on the individuals merit and value to society. This is considered a proportionate system where the worthiest, not the neediest are given the largest share. His belief was that rewarding the ‘lazy’ in the same way as the ‘hardworking’ would be unjust. There are many criticisms of distributive justice namely that in Aristotle’s theory of justice, justice is not applied equally and, especially in a modern society, this does not fall into the bracket of true justice. Aristotle’s theory of justice is in line with the current state pension scheme as the amount of money you get depends on the amount of time you have been working. Those who worked for 10 years would be given less than someone who worked 40 as their contribution has been smaller. However there are issues with this especially for those who can’t work due to disability or for the older generation where women were not working as it was not the done thing.
Thomas Aquinas continued this idea in the 13th Century with his natural law theory. In his case the higher law comes from God and therefore any law which goes against God is unjust. Natural law theory is easily criticised, especially in the UK, as many societies are becoming more secular or more diverse. This means many different religions all will different ideas surrounding who/ what is the higher power if they believe in one at all. This lead to Lon Fuller modernising natural law in “Morality and the law.” Within this he shows that a different kind of fundamental principles are needed with 8 procedural requirements needed. These included promoting the rule of law and human rights. In regards to the Human Rights Act 1998 the natural laws theory of justice is the closest to the law.
Perhaps the most significant advocate of distributive justice is Chaim Perelman in De la Justice which served as an example of how political ideology was crucial in determining how someone defined justice, with 6 potential views shown all of which are based on different people’s subjective values. ‘To each according to his merit’ is consistent with the punishment seen through the criminal courts. ‘To each according to his needs’ is consistent with social democracy and a welfare state. ‘To each according to his works’ is consistent with individualistic liberal thinking based on the contribution a person makes to society as a whole. ‘To each equally’ seen through rationing within the second world war. ‘To each according to his rank’ is consistent with military style thinking and finally ‘to each according to his legal entitlement’ the idea that even the worst offender still has the right to be protected from their fellow prisoners.
All of these views are radically different to Karl Marx’s, arguably the founder of communism, approach where each individual will receive according to their need as items should be distributed equally. This was shown through his slogan, “from each according to his ability, to each according to his need”. This has been criticised through history as no ‘communist’ society has ever lasted, meaning it is unlikely it can function as an ideology. An example of this in the UK is the NHS, as everyone has the same level and standard of care, as long as they are a British citizen and no mind is paid to their social status or value to society.
Distributive justice can be criticised in its entirety as it is clear there is no true definition of distribution seen through the varying opinions of all those analysed. If they cannot agree on a definition then there can be no theory as there is no consensus.
Utilitarianism was created in response to this by Jeremy Bentham, it completely juxtaposes natural law theory believing in a secular society. This theory centres around the idea that the more an action increases overall happiness, the more valuable it is, and the more it decreases happiness, the more reprehensible it is. He also believes that each person is equal in value. There have been criticisms of this as that individuals happiness may need to be sacrificed for the greater community. John Stuart Mill, supported the basic principles put forward by Bentham, but he focused on the quality of the happiness rather than its quantity. He was also able to link his Utilitarian theory to justice. He believed that justice meant respect for people, for property and for rights as well as a need for good faith and impartiality, all of which are linked to utility because they wish to bring the greatest amount of happiness to the greatest amount of people. Mill argued that punishment should only be used for a greater benefit such as public order. One criticism of this is that punishment can be said to bring happiness to those the person had wronged and therefore by taking away punishment you are taking away many people’s happiness in favour of the criminals.
Another criticism of utilitarianism is that it can often discriminate against minority rights in favour of the majority.
However, as this has developed there are 2 new theories of Utilitarianism : act and rule. Professor Rawls argued against utilitarianism and argued that inequality can inly be just if that inequality is of benefit to all, not merely the greatest number. This can be seen with the issue of euthanasia and the Diane Pretty case, as euthanasia is not beneficial to everyone but only a select few and therefore in accordance with utilitarianism euthanasia would be rejected.
Act utilitarianism is where the rightness of an act is judged in isolation to see whether it adds to or subtracts from the sum of human happiness while rule utilitarianism, the rightness of an act is judged by, if everyone acted this way would human happiness increase.
Utility theory allows for any action to be taken so long as it justifies the end goal which can be used even in a democratic society.
Kant disagreed with utilitarianism as he believed that the act was the important element and that if the act itself was wrong it does not matter what happiness it caused. Torture is an example of this as Utilitarians would argue that torture can be used so long as it benefits the majority while Kant would argue that torture in all forms is a wrong act and therefore can never be acceptable.
John Rawls introduced the ‘veil of ignorance’ as a rejection to utility theory, he believed that justice is fairness as people should not be able to exploit people. He presented a hypothetical society wherein each member would be distributed resources in a disinterested manner, no one would know their position in advance or what stage of the development they would be born to. This would mean they were operating behind a “veil of ignorance”. This society would have two basic principles of justice. The first is that everyone gets an equal right to the most extensive scheme of basic liberties compatible with a similar scheme of liberties for others. This principle would include basic freedoms such as the right to property and freedom of speech all of which can be seen through the European Court of Human Rights, Human Rights Act in 1998. The second principle is that social and economic inequalities can only exist where they benefit the least advantaged members of society (known as positive discrimination seen through specifically hiring disabled people for a specific job etc.). His theory is essentially promoting a rights based system, meaning basic human rights are ‘inalienable’ and can therefore never be sacrificed even for the common good. The main criticism of this theory is that it cannot be implemented as it is theoretical and it is impossible to start society from scratch.
Nozick disagreed with this saying that there should be no redistribution of wealth as those who own it have worked to acquire it and any changes should work within the society that has already been created. This is a conservative theory based idea that the state should not interfere in the private lives of citizens unless they have broken the law. This would not work, however, as it disregards those who are unable to support themselves and need the support of the state and would mean the crumbling of the entire UK benefits system.
The issues stated can all be linked to the 2 basic ideas of justice; procedural and substantive. Procedural justice believes that if correct procedures are followed, even if said procedures are unjust, the result is always just. Therefore, it is important that everyone is treated the same. However, this concept would be unfair in regard to a rape trial as the defendant, the same as any other person, would have the opportunity to represent themself and as a result cross examine the witnesses and the victim. Similarly with Diane Pretty the Court of Human Rights ruled against her as it may open the floodgates for other cases. Therefore while this works in theory it is not necessary the most fair/ just system.
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