Weber s theory may be criticised for failing to take into account important non-legal rules such as morals, religion and customs. However legal rules have the advantage of being backed up by enforceable sanctions. Order is clearly a very important function of law and as with Durkheims theory justice is linked. When the law can act as deterrent for people then it is certainly bringing forth a justice if that order is maintained.
Also to take into consideration is that law enforces morality. This is supported by natural lawyers. Generally, people s morals act as a guide to what is right and wrong and the law supports this. Murder is against man s law but also a person s view of morality. We can see that justice is an aspect of morality. It is concerned with how classes of individuals are treated. We would not regard a man who committed adultery as acting in an unjust way but we would regard it as unjust if his conduct was excused simply because he was famous while lesser mortals of similar conduct were not.
As we have just discussed although Justice is a function of law there are other theories as discussed by Hart, Weber, Durkheim and Llewellyn. It is not possible to adopt any of them wholesale. There are conflicting views on the function of law but is clear to see that justice does have a link with each of these.
Staying on the subject of justice, what is it s significance in the legal sysyem?
There are many ways the English legal system tries to promote justice. A few example s include individuals rights which are respected, civil law to compensate individuals who have suffered wrongful conduct from another, the appeals court to prevent messages of justice,. Examples of formal justice are the detailed rules of procedure and convention, rules regarding the admissibility of evidence and the clear court structure. The system tries to be just through the existence of the formal trail and appellate courts together with the various forms of alternative dispute resolutions. The whole process of law including the trail in court and it s consequences have to be seen as fair.. Improper considerations and motives should play no part in the decision making process of the judge and he should not try to modify or adopt the law according to what is his concept of justice. Some judges, however notably Lord Denning have always shown acute concern for what is just, and he has always stated that the function of the law is to do justice as between the parties. This could cause problems in that it would reflect the judges own particular concept of justice. Since this is inevitably subjective, many other may disagree with the decision so judges are supposed to be independent and impartial
The fairness of the law is also contributed to by natural justice and Dicey s rule of law.
The concept of natural justice is to bring about the general aim of justice, in the form of two main rules, the rule against bias and the right to a fair hearing. This concept of natural justice is shown in the case Council of Civil Service Unions v Minister for the civil service(1985). In this case there was a ban placed on the joining of unions but it was said that a requirement of natural justice was a duty to act fairly .
Also justice is expressed in the legal system by the rule of law. This was devised by dicey said that no one is above the law, not even the government. This is in accordance with the principles of justice, that everyone be equal before the law. In some ways we can see that the law has acted to ensure this equality by anti dissemination laws such as the Sex Discrimination Act 1975 and Race Relations Act 1976 to ensure people are treated equally. Also as mentioned earlier, is the European convention of human rights which ensures that peoples rights are not abused by the government. An example is the Police and Criminal evidence act (PACE) of 1984. This acts as a safeguard against the power to arrest and detain a person. The person would be read their rights, they would have to be taped, they could not be searched without a warrant and somebody else would have to be present. This is to ensure the police don t abuse their power. An example of limitation being applied is in the case of Congreve v Homeoffice where the Home Secretary was given power to revoke licenses but not allowed to use this power in good cause .
We have considered examples of formal justice. We will look more closely at the outcomes of the system. In considering the English legal system the words law and justice are often used interchangeably. For example, in reference to the courts of justice, it does not mean that justice is gained. In relation to the criminal justice system this appears to be true in light of the large amount of appeals to the Court of Appeal. Clearly the English legal system strives to obtain justice but as recent cases have shown it is unlikely that law will ever produce justice in every case.
Some notable miscarriages include the Guildford Four , the Birmingham Six , Tottenham three , the Maguire Seven and Stephan Kizsko. Stephan was wrongly jailed for child rape and murder but later evidence showed that it could not have been him as he was impotent. These cases illustrated some important failings in the system including how easily convictions can be secured as a result of fabricated evidence. This prompted the Criminal Cases Review Commission in 1995. which now deal with miscarriages. There is now a Court of Appeal to correct any errors..
It must be noted that in some societies and at different times law does not promote the principal of justice as shown above and sometimes it may be used as an instrument of terror against the general population. Moreover particular law can seem to some people to be unjust and this may result in them disobeying the law. Examples of this, what we call civil disobedience, are shown throughout history in respect of the poll tax, race segregation and equal rights for women. So, is justice the principal objective of law? It is difficult to say though it certainly an expectation of the system. As has been discussed there are other functions of law put forward by different theorists. However, there seems to be a strand of justice, which runs through each. Many have put forward ideas of justice in social arrangement yet having said that, it must be recognised that most people still regard justice as being the ultimate aim of a legal system.
Positivists such as Kelsen who said justice is an individual preference, and is not really to do with the law at all, and Austin who supported this in his view that an immoral law or unjust law is still valid seem restricted, in light of the many accepted views of justice, namely formal and substantive justice and the principles of natural justice.
I would agree that the pursuit of justice is certainly a large part of the law in that it appears to be linked to everything, including the other functions of law that have been discussed. However to say that justice is the principal object of law cannot be determined, although perhaps the incorporation of the European Convention of Human Rights will elevate this.