Law And Justice Essay, Research Paper
HOW FAR WOULD YOU AGREE THAT THE PRINCIPAL OBJECT OF THE LAW IS THE PURSUIT OF JUSTICE?
To determine the significance of justice in any legal system it is necessary to identify the two central issues, which have to be taken into consideration when discussing law and justice. The first is the theoretical differences on the definition of justice and secondly; the law has been lined with many other objectives. Certainly there is a connection between the ideas of law and justice. For instance, we talk of courts, judges dispensing justice, civil and criminal justice, and the miscarriages of justice which have arisen. We expect the legal system to promote justice yet we do not have a clear understanding of what the term justice means. Like many concepts in legal and political philosophy, it is capable of being used in many different ways. It can refer to simple vengeance as for instance the Old Testament rule of an eye for an eye or it can be termed as being something more complex. This has been done by various theorists, one being Aristotle the philosopher. His view was that justice may be equated with fairness which takes on two forms, Distributive and Corrective justice. Distributive justice as the name suggests is concerned with the equal distribution of goods in society and ensures that all imbalances are corrected. It is concerned with the fairness in the content of the law. A legal system, may be fair in the sense that the laws are applied in accordance with the rules, but it may not be a just system if the rules themselves are unfair. For example, a legal system supporting slavery may be meticulous in treating slaves alike but we would not call it just because the idea of slavery is considered to be unjust.
Communicative justice is concerned with the fair application of rules. (This can be associated with the concept of natural justice, which will be discussed further later.)
This is illustrated in the case Ridge v Baldwin (1904) where it was held that a police officer should be given an opportunity to present his defence before being dismissed. In our system the rules of evidence ensure that in a court case each side gets a fair hearing, so the system is just. However, it could be perceived to be unjust when you take into account justice is not available to all. For example, a person may be too rich for legal aid but too poor to pay his own court fees. Justice, as viewed by Aristotle is a narrow, formal requirement. it merely requires that these laws should be applied equally to people. To Aristotle an immoral law would be a just law if it were applied equally to people.
Another theory is the utilitarian view put forward in the writings of Bentham. The principle of utilitarianism is that society should be organised in such a way that it will achieve the greatest happiness for the greatest number of people. This can be done in two ways; either maximising the average of the utilities of everyone in the society, or by maximising the total utility of the society This means there would be nothing to say that a system of slavery was unjust if it could be shown the pleasure provided to the slave owners outweighed the pain borne by slaves. Most likely it is plausible that slavery would be kept. Thus, utility will except situations where the majority benefits from the poverty or oppression of a minority. Is this theory workable or acceptable? To take an example, would it be acceptable to allow a car manufacturer to produce a car with a defect, on the ground that it cost more to rectify the defect than care for the victims of a possible crash? This could be said to maximise the wealth of a society as a whole as it would allow people to buy cars at a lower price. But morally would it be acceptable to sacrifice the protection of the minority who may burn in a crash to the greatest good of the majority? Clearly, this may be criticised. The theory is concerned with what is good for the society, not what is right for the individual. Secondly how does one measure utility? Moreover, this theory is not attributed to everything. Some preferences or wants may be disregarded for reasons of consistency, for example a ban on alcohol for religious reasons. Utility would offend our institutions of justice because it would accept certain unacceptable inequalities, for example the slaves. The modern theories, in particular Rawls theory of justice can be seen as attacks on utilitarianism. He criticises the Utilitarianism for allowing the minority to be sacrificed to the greater good of the majority. Although we may agree with this, realistically our society does follow this pattern. It is not possible to keep every individual happy. However, Rawls derived his own theory to solve this. He said starting from a position of injustice, it is difficult to change the situation simply through the use of law. So he proposed that the slate be wiped clean so that the principles of justice would be chosen from a starting point which was just. To do this Rawls says we would imagine ourselves drawing up these principles in what he called the original position in which we are stripped of all knowledge of ourselves and of what our eventual position in society will be. Given this view we would not agree to a system of slavery because we would not know whether when the veil lifted whether we were to be a slave or slave owner. From this veil of ignorance two principles of justice would be established. Firstly, Each person would have an equal right to the most extensive basic liberty compatible with a simpler liberty for others. The basic liberties are political liberty, together with freedom of speech and assembly, freedom of conscience of thought. The second Principle of justice would entail social and economic inequalities being arranged so that they were both reasonably excepted to everyone s advantage.
As a summary, the two principles of Justice mean that all social values, liberty and opportunity, income and wealth, and the bases of self-respect would be distributed evenly and would only be restricted when it was necessary for the greater good of the community. For example, freedom of speech would be restricted only on the dissemination of obscene material. Injustice, according to Rawls then is simply inequalities that do not benefit all.
One fault in Rawls theory is that he imposes no restriction on what sorts of inequalities are admissible, he only requires that everyone s position may be improved. Furthermore, it is fiction ad there is no evidence that this would work.
Nozicks entitlement theory of Justice contrasts with this. His opinion is that Rawls theory allows the state to play too great a role and involves unwarranted interference with individual freedom. Nozicks theory of justice is based on freedom and the fundamental rights each person possess.
In a just society, each individual is merely under a restraint not to interfere with others fundamental rights. All people are involved in a social contract, meaning they are entering a society agreeing it should be patterned. A just state is one that has the power to restrain anti social conduct and award compensation when one member of society has infringed another member s rights. His view shared by Locke is that a society will be just if it respects the natural rights of its citizens. This is certainly true of most people s beliefs. Another view of justice is that put forward by Karl Marx
It concerns opposing groups in society. He saw the law as a means of class domination by the rich who and oppressed. A just society in his view would be one in which wealth was distributed, socialist state. In terms of justice, he prefers a system where people are rewarded no matter what jobs they do to each according to his need . You could argue this and say that it was unjust. In today s society, social classes are less marked. There is a meritocracy. It would be unjust not to award people on their achievements.
Moving on, another view of justice is that put forward by the natural lawyers and positivist lawyers. Positivists such as Professor Hart argue that there is no necessary relationship between the legal system and the ideas of justice. The tyrannical legal system operating in Germany during the years of the Nazi Regime is a good example. It disseminated against individuals on racial grounds. We would argue that there was no notion of justice in the system yet it still worked effectively. Positivists view complies with this. They say that a legal system can function effectively though it is neither just nor moral. They look to the process by which law is made. If laws are properly made, they are to be obeyed and applied no matter what the content is. Natural lawyers on the other hand will question the substance of law and if this does not abide with the absolute standard, the citizen is not expected to uphold it.
They believe that Justice should have its basis in morality. An example is a lawyer called St.Augustine. He did not regard unjust laws as being law at all because they conflicted with the natural law as set out in the scriptures. A more sophisticated view was put forward by Thomas Aquinas who said An unjust law is no law . He argued that laws that conflict with the requirements of natural law lose their power to bind morally. Similar views were shared by Fuller who saw the law in terms of basic human rights. On this reasoning, an unjust system, such as that based on apartheid, forfeits any right to be obeyed because it lacks moral authority. John Finnis has developed his theory and identifies the basic humans good such as life and sociability. It is a complex theory but in simple terms says that unjust legal systems lose their direct moral authority to bind individuals. It is clear in an open society, like ours a law which is widely perceived to be operating in an unjust way may prove difficult to uphold. An example of this is the protests against the poll tax which resulted in its abandonment after only a couple of years.
Although the natural theories view on legal systems are true; legal system are more in line with positivist theories than natural law theories. This is true in respect to Adolf Eichmann who was responsible for implementing the final solution. He relied on the positivist view which in turn led to the mass killing of innocent Jews. This shows us the need for just laws and perhaps the need for some natural law leanings in the constitution. Our law does not even take into account our fundamental freedoms. Realistically, whatever Parliament lays down is law. We do not even have a Bill of Rights a statement of basic human rights that laws can be measured against. However natural law leanings are evident in the European convention of Human rights.
We have mentioned various theorists. In particular is Aristotle s view that justice can be used as a measure of fairness. Another way of making this distinction is between formal and substantial justice. The whole structure for interpreting and applying rules of law and enforcing decisions can be seen as the pursuit of formal justice. Lloyd defines formal justice as a legal system which provides rules and principles which are applied fairly to all persons without fear or favour. This rule of equality does have exceptions to those for example who are insane. Lloyd states that formal justice involves three concepts, the existence of rules setting out how people are to be treated, secondly; those rules must be applied either to persons generally or to certain categories of person as defined and lastly those rules must be applied impartially. like should be treated as like . However this says nothing of the substance of the rules which are to be applied.
This is where we have to consider substantial justice. For substantial justice to exist not only must the procedure by which the law is applied be seen to be fair but also the content of the rules? The content of a rule is measured against a higher set of principles such as fairness, justice or morality. The European Convention of human Rights has not been brought into domestic effect by legislation and so the courts are not able to carry out its provisions. Occasionally the courts are willing to decide a case where they comply with the provisions of the European Convention by developing the Common law. An example of this is Derbyshire County Council v Times Newspaper Ltd and Others where the House of Lords held that at common law a local authority had no right to sue for defamation since this would go against freedom of speech.
Now we have considered the forms of justice as offered in the system we can attempt to define justice. It is certainly true to say that it is easier to recognise instinctively what is unjust than it is to define what is just. Clearly people s concepts of what is justice may not be same as the differing view points from each theorist shows. All the arguments are aimed at showing what justice is . Considering each, can any of the theories discussed in reality be termed anything other than subjective? They show arguments for a particular arrangements but none are conclusive thus I will put forward my own view of justice, that it is generally good triumphing evil. Now that we have attempted to define justice we must consider whether justice is the main function of law? Although it is clear that justice is an paramount in the system there are other function of law put forward by other theorists which shall be discussed
. It may said that the function of law is the regulation of conduct and the entering into relationships. For example, law might be a means of defining and regulating marriage and divorce. The ownership and the user of property, and that of employer and employee to name but a few.
Law also lays down rules for people. It sets down standards that people follow. These are fairly general comments and we will look at theorists who have explored this in more detail.
The American realist Karl Llywenyn formulated a law jobs theory to explain the function of law. He believes that every social groups has certain basic needs. In society to ensure survival certain jobs have to be done. The jobs include preventing disruptive disputes within the group, resolving disputes that do arise and providing mechanisms for constructing relationships between people. This is a substantial theory. The police force in our society play a big role in enforcement and they are necessary to maintain order. However since not all jobs performed by social groups have a legal purpose, such as a parent who resolves disputes between her children, it is not a concrete theory. Notably, there is a link to justice in his theory in that the police enforce justice by arresting criminals that may be causing harm to others.
Durkheim, a sociologist considered the function of law to be social cohesion. He came up with two different types of society. He said that in a primitive society, there is a unity of purpose to survive the need to maintain the legal and moral code, ‘the collective conscience . An individual who deviated from this would be punished and this punishment would reflect the group s disapproval and reinforce the code. In a more advanced society, resolving trade and personal disputes would become more important. This may be criticised. He has underestimated the degree to which compensatory law exists in simple societies and criminal law exists in advanced. An example of this is the industrial revolution and the increase in crime at that time. However this thesis has been very influential in determining what the function law is. Again this theory shows a link to justice in that Justice demands people be compensated. Similarly a sanction given to a person for committing a crime is justice.
Hart, a positivist believes that the function of law is to allow human beings to survive. For the survival of any society he determined there needs to basic rules (primary rules) and secondary rules to refine these. His theory was that rules tend to reflect the self-interest of societies- ensuring that basic food, shelter and warmth are met. These rules would promote self-restraint, which compel people to put the community above themselves.
He related his primary rules to five human weaknesses. Vulnerability to injury, approximate equality, limited altruism, limited resources, and limited understanding of strength of will . He said that in an advanced society, these primary rules would give rise to certain problems, which would have to be dealt with by means of additional secondary rules. In a more sophisticated society would develop rules for settling disputes, rules of change, and rules of recognition.. A problem with the primary rules is that they are too simplistic. There will be no means of changing the rules in accordance with changes in the circumstance. Also, the idea of self restraint goes against the interests of the people in society as reflected by aspects of private law in a developed society. His view of the function of law in society is logical though. Laws do protect and maintain public order, life unless fairly well ordered would not run smoothly but his perception that law is the only force of order is misleading, since moral and social rules also helping the function of society. There are rules that have a force as compelling as legal rule. His primary rules in a sense promote justice because it means there would have to be rules to prevent aggression, violence, selfishness, rules protecting property and rules to prevent an individual from pursuing their long term aims at the expense of a long term good of society
The German sociologist, Weber s theory is that the principal function of law is to maintain order.. The Law acts a means of repression for people as they are under a threat of punishment or sanction. If for instance there were no law then the persons responsible for theft or murder would have no deterrent to prevent then from acting in this way again