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Law and Justice

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