Law and Justice
Theories of law and justice
For the purpose of these notes the term ‘law’ refers not only to the substantive law, whether developed in the courts, by Parliament or from other sources, but also to procedural rules and principles by which the laws themselves are made and the legal system administered.
Justice is a concept that can be described simply by a synonym such as fairness, equality or even-handedness. It is something for which we develop a ‘feel’ at a young age. It clearly includes treating like cases in a like manner, showing impartiality, and acting in good faith. However, the term has occupied the minds of some of the greatest thinkers across the ages. As a result there is a wide range of theories available to explain its meaning and application. Some of these are described below.
Justice as harmony
Plato was a 4th-century Greek philosopher. In his major work, The Republic, he uses Socrates as a mouthpiece to develop his own view of justice. Dealing with the individual first: a man must balance his wants and needs with that of others to achieve justice. Secondly each element of society must fulfil their proper role in it and interact with the other elements of society in a positive and balanced way. Watch the short video about Socrates here.
For both the individual and the state, therefore, Plato views justice as harmony between the warring elements.
Distributive justice is concerned with the fair allocation of the benefits (e.g. money, property, family life) and responsibilities (e.g. taxes, civic duties) of life within an organisation.
Aristotle argues that a just state will distribute its wealth on the basis of merit, giving to each according to his virtue and to his contribution to society. This is a proportionate system: the worthiest, rather than the neediest, receive the greatest share. To allocate resources on the basis of people’s needs would be unjust, as it would reward the lazy at least as much as the hard-working. We might consider how this would apply today to paying for care for the elderly.
Corrective justice is needed to ensure that individuals can keep their entitlement. It is applied where one person, by his greed and self-interest, causes a loss to another person, for example by stealing his property. The role of the court is to ensure that the gains and losses of each party are equalled out so that the offender doesn’t benefit from his wrongdoing and that the victim doesn’t suffer loss. In this way balance, the middle way he so often sought, is achieved. Follow this link to see how an example of corrective justice in the criminal justice system.
Aquinas identified particular forms of justice that govern our dealings with others, which help put into practice the general principle that people are given what is due to them. First of all, distributive justice concerns the fair allocation of goods and responsibilities throughout the community. This is governed by ‘due proportion‘: people receive what they are due in accordance with their merit, rank and need. Concerning merit, it would be wrong to pay workers an equal amount for unequal work, or an unequal amount for equal work; concerning rank, people of higher social status will require a greater proportion of society’s benefits; and concerning need, there is a moral obligation to look after the poor. Clearly these principles may conflict when put into practice.
Aquinas also spoke of commutative justice, which concerns the exchange of goods or services between people. This is governed by ‘equality’: in a contract, for example, on the one hand the value of a product is what one should pay for it; on the other hand the vendor should receive the true worth of the goods.
Karl Marx, widely regarded as the founder of communism, developed a radically different model of distributive justice, embodied in his slogan, ‘from each according to his ability, to each according to his need’. This enshrines two principles of the ideal of communism: first, each will maximise his contribution to the common wealth by making full use of his abilities. Secondly, each will receive according to his need, irrespective of the personal contribution he has made to the production process. No doubt Aristotle would have regarded this model of distribution as unjust in that it has the potential for giving the greatest rewards to the least productive, and therefore least deserving, members of society.
Chaim Perelman – different models of distributive justice
These models of distributive justice are among those identified by Chaim Perelman, a Polish-born philosopher who lived in Belgium..
- to each according to his merits’ is reminiscent of Aristotle: each person is treated in the manner he deserves. The good are rewarded, the bad deprived or punished. This view is consistent with the practice of the criminal courts, meting out punishment in the measure that is warranted by the offence committed. It is also consistent with many people’s religious beliefs about life after death.
- ‘To each according to his needs’ is reminiscent of Marx’s slogan. This approach is consistent with social democracy, in which a welfare system allocates resources such as social housing, tax allowances and benefits payments according to a means tested system. Those in greatest need receive a proportionately higher share of the common wealth. This was the dominant philosophy behind the development of the welfare state in the United Kingdom in the years following World War II, and still enjoys a significant measure of consensus among political parties today.
- An alternative view of justice is ‘to each according to his works’, a liberal, individualistic approach favoured by supporters of the enterprise culture as it measures an individual’s rewards according to the contributions he has made. Under this system a highly skilled worker will receive considerably greater rewards than an unskilled worker. This approach is claimed to provide incentives for people to better themselves.
- A fourth approach, ‘to each equally’ has a superficial attraction, and in some situations will be the fairest system of allocating scarce resources. For example, when food was in short supply during and after World War II, ration books were issued to each person. These contained tokens which had to be removed by the shopkeeper when scarce items of food and clothing were purchased. Even here, though, there were some exceptions: pregnant women were issued with more food tokens, and nursing mothers were allowed more milk. An equal distribution of resources would often be wasteful, and an equal sharing of burdens, such as tax contributions, would be unfair unless all resources were equally shared.
- ‘To each according to his rank’ may sound anti-democratic, but is widely practised. Rank may refer to social status: deference continues to be shown to members of the royal family and even to celebrities. It may refer to a position of authority: the quarters of army officers are superior to those of their troops. It may refer to age: the over 75s do not require a TV licence, irrespective of the ability to pay, and little sister is well aware that big sister enjoys more privileges.
- Finally, ‘to each according to his legal entitlement’ is a rights-based system, and is not dependent upon merit. Thus, the vilest serial killer will be entitled to protection from attack by his fellow-inmates in prison; and the most disloyal, undeserving child will inherit under the rules of intestacy.
Jeremy Bentham was a social reformer, inventor, wordsmith and philosopher
Definition: what makes an action right or wrong is the usefulness, or value, of the consequence it brings. The more an action increases overall happiness, the more valuable it is; and the more it decreases happiness, the more reprehensible.
Maximising happiness is the object of justice. To help measure this, Bentham developed a mathematical formula which enables us to assess whether our conduct increases happiness. This formula identifies a range of factors concerning the pleasurable activity itself, for example its intensity, its duration, and its extent. It then identifies and grades different kinds of pleasures, for example those relating to the exercise of power, or to friendship, and different kinds of pain, for example regret or grieving. These factors help to introduce some objectivity into what would normally be regarded as a subjective issue. Before deciding upon a course of action, a person is therefore able to judge whether it will add to or subtract from the sum of happiness.
Main Criticism: the interest of an individual may be sacrificed on the altar of greater community happiness.
For example, when Stefan Kiszko was convicted in 1976 of the murder of Lesley Molseed, an 11-year-old Rochdale girl, the parents of other young girls in the area will have felt enormous relief believing that the killer was off the streets. The fact that he was innocent will have brought considerable misery to Kiszko himself and to his immediate family. Under the felicific calculus, though, the greater happiness brought to the larger community by a conviction might outweigh the pain of a few individuals. Does this possibly make such an outcome just?
Mills believed in utiltarianism but felt this should be judged by quantity of people being made happy and the quality of this happiness as well.
He wrote: ‘Better to be a human being dissatisfied than a pig satisfied; better to be a Socrates dissatisfied than a fool satisfied’.
Under act utilitarianism, the rightness of an act is judged in isolation to see whether it adds to, or subtracts from, the sum of human happiness. For example, if I drive my Harley Davidson at 130mph on an empty motorway at three o’ clock in the morning, I am considerably increasing my own happiness and causing pain to nobody else: the sum of human happiness is increased. According to rule utilitarianism, the rightness of an action is judged according to whether the sum of human happiness would be increased if everyone acted in the same way. Developing the example, if all Harley Davidson owners tried to drive along the same stretch of motorway at the same speed and at the same time, chaos would probably ensue, resulting in pain and misery: the sum of human happiness would decrease.
John Rawls, a professor of political philosophy at Harvard, published A Theory of Justice in 1971. It sets out the concept of social justice.
In order for there to be justice decisions need to be made in a way that is totally objective and without any personal prejudice. To achieve this decisions would operate behind a ‘veil of ignorance’. In Rawls’ own words: ‘No one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like’. Rawls believed that, on this basis, benefits and burdens would be distributed justly, i.e. fairly.
Rawls argued that two basic principles of justice would be evident within this society: first, each person would have ‘an equal right to the most extensive scheme of basic liberties compatible with a similar scheme of liberties for others’. This would include certain basic freedoms, such as the right to own property, freedom of speech, freedom of association, and freedom from arbitrary arrest.
Secondly, social and economic inequalities may exist, but only:
(a) where they benefit the least-advantaged members of society; and
(b) provided all offices and positions are open to everyone. In other words, under (a), it is acceptable for a neurosurgeon to earn four times the average wage, live in a large detached house, drive a Mercedes S class, and go to the Yorkshire Dales for his holidays because his work benefits disadvantaged members of society, and others are encouraged to imitate his example, further benefiting the disadvantaged. It is also acceptable under (b), provided that everyone with skills and abilities comparable to those of the neurosurgeon have a reasonable opportunity to pursue a similar path.
In employing the fiction of the ‘veil of ignorance’ to develop a society based upon consent, Rawls was promoting a rights-based system: basic rights such as freedom of speech and association are ‘inalienable’: they can never be sacrificed for the common good. The state must always respect the autonomy of the individual. He wrote: ‘Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. Therefore, in a just society the rights secured by justice are not subject to political bargaining or to the calculus of social interests.’ This distinguishes Rawls from Bentham and the utilitarianists, against whom the final comment is directed, for utilitarians might allow individual freedoms to be sacrificed where this is considered necessary to promote wider benefits for the greater number.
Click Here for a short video on his theory.
Robert Nozick was a Harvard colleague of Rawls. In A Theory of Justice, Rawls had provided a philosophical basis for the welfare state and the redistribution of wealth to help the disadvantaged. In Anarchy, State and Utopia, Nozick developed an entitlement theory of justice, which consisted of three principles:
1 A principle of justice in acquisition, dealing with how property is initially acquired.
2 A principle of justice in transfer, dealing with how property can change hands.
3 A principle of rectification of injustice, dealing with injustices arising from the acquisition or transfer of property under the two principles above. This third principle would not be required if the world was entirely just.
Where a person obtains property in accordance with the principles of acquisition or transfer, he is entitled to keep that property. Where people obtain property by fraud or theft or other unjust means, the third principle provides a remedy.
This is fundamentally different from Rawls, who argued that inequalities may exist only where they benefit the most disadvantaged members of society. Nozick places no such limits upon private ownership: property justly acquired may not be appropriated simply as a form of redistribution of wealth, to reduce inequalities. He wrote: ‘No one has a right to something whose realisation requires certain uses of things and activities that other people have rights and entitlements over’.
Therefore, those in possession of property have an inalienable right to keeping it, and no competing authority can justly deprive them of their property, no matter how just their cause may appear. This is a free-market, libertarian form of justice. Following the publication of Anarchy, State and Utopia, Nozick became closely associated in people’s minds with conservative economists such as Milton Friedman, who influenced the policies of the conservative government of Margaret Thatcher in Britain in the 1980s. However, unlike other libertarians, Nozick did not restrict his principles to the field of economics: he also adopted a libertarian approach on social issues such as gay rights.
Justice in procedural and substantive law
Social justice: legal aid
The Access to Justice Act 1999 established the Legal Aid Agency (LAA), with responsibility for administering the annual legal aid budget of about £2 billion. Under the umbrella of the Legal Aid Agency are two parallel organisations: the Community Legal Service, with responsibility for funding civil law issues such as asylum, domestic violence and community care; and the Criminal Defence Service, which provides professional advice and representation to those under investigation or facing criminal charges.
Legal aid is regarded as an important element in promoting social justice. In a democratic society all citizens have a right to access justice, to receive a fair hearing, and to understand their legal rights and obligations. Many people need help with this. Legal aid is the most significant vehicle through which this help is provided, to over two million people per year according to figures produced by the LAA.
However, the budget is no longer demand led: it is fixed by the Treasury, and responsibility passed to the LAA to administer it efficiently. Managing a fixed budget inevitably places limits upon the operation of the LAA. By franchising its services to firms of solicitors and to advice agencies, it hands over the risks associated with variations in demand. It also restricts its operation to priorities identified by the Lord Chancellor: it does not offer a comprehensive advice service. Also, funding is means tested. Under Perelman’s analysis, the budget is distributed to each according to his legal entitlement, but also according to his needs.
Demand for the service continues to grow. The budget, however, does not. The LAA, therefore, is caught between a rock and a hard place. To meet this dilemna, it is endeavouring to make more of its budget available for civil legal aid (for example, family, housing and debt problems), but also seeking to ensure that funding is being spent ‘where it is most needed and can make most difference to people’s lives’. This utilitarian approach will inevitably lead to many needs not being met.
Corrective justice: sanctions and damages
When judges or magistrates pass sentence upon an offender, they take into consideration a number of factors. These include the aim of the sentence: this may simply be to punish the offender for breaking the rules or to deter others from committing the same offence. Balanced against these may be the desire to rehabilitate the offender. The court will also consider aggravating and mitigating factors relating to the offence and to the offender. As a result, the sentence should then be just. But in what way just? Well, it will more likely be ‘proportionate’ to the offence committed and to the relevant surrounding circumstances.
This is a more sophisticated model than Aristotle’s. He argued that the role of the court is to ensure that the gains and losses of each party are equalled out so that the offender doesn’t benefit from his wrongdoing and that the victim doesn’t suffer loss. This would be applicable to offences such as theft, but even then would not take into consideration surrounding circumstances.
By contrast, John Stuart Mill did not accept the validity of a retributive approach, regarding all punishment as evil in itself. However, he did accept that imposing sanctions could be justified under the principle of utility if it corresponded to a greater benefit that measurably increased the happiness of others. Aims of sentencing such as rehabilitation, protection of the public, and reparation would therefore fall within the utility model.
Aristotle’s model is probably more amenable to the award of damages in civil law. In the tort of negligence the aim of compensation is to restore the claimant to his pre-tort position, in so far as money can achieve this. The award would include payment for any specialist medical treatment required, for future loss of earnings, for any loss of enjoyment of life, and for pain and suffering. To balance this, any contributory negligence on the part of the claimant will reduce his award.
For example, in Jebson v Ministry of Defence (2000), 75 per cent of the claimant’s award was deducted for his contributory negligence. The claimant had been with a party of about 20 drunken soldiers returning to their barracks in an army lorry after a night out in Portsmouth. He was standing on the lorry’s tailgate when he fell out and was injured. This reduction is just because it is proportionate: it reflects that the claimant was largely responsible for his own harm.
In contract law, the basis of assessment of damages is loss of bargain: the claimant is placed in the position he would have been in had the contract been performed. However, only losses that are reasonably within the contemplation of the parties may be recovered. In Victoria Laundry v Newman (1949), the defendant had been late in fitting a boiler. As a result the claimant had suffered not only normal business losses, but also exceptional losses through losing a special contract with the Ministry of Supply. As the latter were not within the contemplation of the parties at the time of the contract, they were not recoverable.
The judgments in these two cases reflect the ‘middle way’ that Aristotle promoted. They also illustrate Aquinas’ concept of due proportionality in that damages are awarded pro rata according to the merits of the claim, and not automatically in relation to the harm suffered.
Under these tests they are just.
The criminal process
Trial by jury enables the case against a defendant to be determined by his peers, who are free to apply their view of justice rather than adhere strictly to the rules of law. In R v Ponting (1985) a civil servant was charged with breaching the Official Secrets Act for releasing privileged information about the sinking of the General Belgrano. The judge told the jury that public interest in the information did not provide a defence. And yet the jury acquitted him. No doubt they felt differently about the public’s right to have this information!
The rules of evidence adopted in criminal trials seek to balance the interests of the parties to the action. In R v Sang (1979), Lord Diplock stated: ‘A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.’ For this reason evidence of previous convictions is not generally admissible unless the facts are strikingly similar to those in the instant case.
On the other hand, even illegally obtained evidence may be admissible. In Jeffery v Black (1978), the police arrested a student for the theft of a sandwich, and then conducted an illegal search of his flat, where they discovered some drugs. The magistrates threw out the case after ruling the evidence inadmissible. However, the Divisional Court ruled that the illegality of the search did not justify excluding the evidence it had exposed. This may at first seem to be unjust. However, if the police had discovered plans and materials to blow up Heathrow Airport, they would surely be justified in relying upon it in court.
In criminal cases heard in the magistrates’ court, the defendant may appeal either to the Crown Court against conviction or sentence, or to the High Court by way of case stated on a point of law. In Crown Court cases the relevant appellate court is the Court of Appeal. For example, in R v Arobieke (1988) the appellant successfully appealed against his conviction for unlawful act manslaughter, arguing that his behaviour had not amounted to an assault. In R v Thornton (1992), by contrast, a retrial was ordered when the appellant introduced new evidence that would support one of the partial defences to murder. Note that permission is first needed from either the trial judge or the Court of Appeal itself. This was refused to those convicted of the 21/7 London bomb plot: one of the judges hearing the application described as ‘ludicrous’ the men’s defence that the bombs were a hoax. The need for permission may seem difficult to justify: however, refusal is not an arbitrary decision. It is based upon realism: does the appeal have any merit? If not, why waste time pursuing it?
Under the Criminal Justice Act 1998 the prosecution may also appeal against ‘unduly lenient’ sentences. This may result in significantly increased sentences, as occurred in the case of a woman who was originally sentenced to probation and community service for killing another woman in a row over a parking space at a car boot sale. She was sentenced on appeal to four years in prison. In addition, under the Criminal Justice Act 1972, the Attorney-General may appeal on a point of law to the Court of Appeal where he wishes to question the judge’s direction which has led to an acquittal. For example, in Attorney- General’s Reference (No. 2 of 1992) the Court of Appeal declared that the defence of automatism is not available where awareness is merely reduced: a total destruction of voluntary control is required.
In spite of this system of appeals, injustices arise: innocent men and women still serve long prison sentences for crimes they have not committed.
The Birmingham Six, the Guildford Four, the Maguire Seven, Judith Ward and Stefan Kiszko are among those whose innocence took years to establish. The publicity these miscarriages of justice have provoked led to the establishment in 1997 of the Criminal Cases Review Commission (CCRC) whose role is to review the cases of those they feel have been wrongly convicted of criminal offences, or unfairly sentenced. They do not consider innocence or guilt, but whether there is new evidence or argument that may cast doubt on the safety of the original decision. Derek Bentley and Sally Clark are among those who have had their convictions quashed by the Court of Appeal following reference from the CCRC.
The Maguire Seven Appeal video.
The Bimingham Six documentary
Derek Bentley video
All of these cases involved gross miscarriages of justice, often where the evidence needed to prove the defendant’s innocence was available at the time of the original trial. It is perhaps naïve to believe that some of these convictions would be less likely to occur today as a result of safeguards introduced under the Police and Criminal Evidence Act 1984, and the separation of the investigation and prosecution of crime introduced with the establishment of the Crown Prosecution Service. The only comfort in terms of justice is the fact that systems exist which can bring miscarriages of justice to the attention of the appeal courts. However, procedural justice relies very heavily upon the integrity of those responsible for the investigation and prosecution of crime.
Rules of natural justice
Natural justice is often described as containing two basic principles. The first is that the tribunal must not only be impartial, but also seen to be so. Judges should have no personal interest in a case. In the Pinochet case (1998), the House of Lords ruled that Senator Pinochet, the former dictator of Chile, could be extradited to Spain to stand trial for his alleged involvement in the torture and death of Spanish citizens in Chile.
One of the judges hearing the case was Lord Hoffman, a director of Amnesty International, a human rights group which had been given permission to take part in the appeal. Clearly this infringed the principle of impartiality; a doctrine supported by Mill and others, and ignored the rule that a man should not be a judge in his own case (nemo iudex in causa sua).
The second principle is that each party to the dispute must have a fair opportunity to present his own case and to answer the case of his opponent. In Ridge v Baldwin (1964), the House of Lords ruled that the decision by a police authority to dismiss its chief constable without a personal hearing contravened natural justice. In the words of Lord Hodson, the police authority ‘had acted without jurisdiction’.
The rules of natural justice are designed to protect the interests of individuals against arbitrary decisions. In both the Pinochet case and Ridge v Baldwin, the original decision may have been correct. However, each was unreliable because of the breach of the rules of natural justice. Thus, we can see that justice is not necessarily concerned with the rights and wrongs of the decision, rather it is with the procedure followed in reaching the decision. The application of justice must be fair.
The mandatory life sentence
The principle of proportionality, an attribute of justice under Aristotle and Aquinas, generally governs the sentencing practice of judges and magistrates. This satisfies our expectations that the more serious the offence, the harsher the sanction that will be imposed. However, those convicted of murder, and certain repeat offenders, are subject to a mandatory life sentence. Some murderers, though, are far less culpable than others: the setting of a minimum tariff does not allow for proportionality, and so may lead to harsh decisions. In R v Cocker (1989) the defendant suffocated his wife, at her insistence, with a pillow: she had been terminally ill and in much pain. The trial judge denied him the partial defence of provocation, leaving the jury with little alternative other than to convict him of murder. In such circumstances a life sentence may seem a disproportionate punishment. Perhaps justice would be better served by allowing judges to pass the sentence they feel to be most appropriate.
Life is sometimes said to be our most valued possession. The premeditated killing of another human being must therefore be considered one of the greatest acts of injustice man can commit. And yet the law recognises that not all premeditated killing is equally culpable. Hence the defences of provocation and diminished responsibility have been created to limit liability, and the defences of self-defence and automatism will, where successful, excuse liability altogether. However, there are anomalies within the current law that have the potential for creating injustice.
One of the generally accepted characteristics of justice is that like cases are treated in like manner. Yet the law gives more favourable treatment to those who kill while suffering diminished responsibility or while under provocation, than it does to those whose free will is overpowered by an external threat. The decision of the House of Lords in R v Howe (1987) clearly established that the defence of duress is not available on a charge of murder. Yet one feels much more sympathy for the defendant in R v Gotts (1991), a boy whose life was threatened by his own father, than one does for the defendant in R v Byrne (1960). The Law Commission has proposed adding duress to diminished responsibility and provocation as defences that would attract conviction for second degree murder. This would introduce parity of treatment under the law, and satisfy a basic requirement of justice that like cases are treated in like manner.
In the famous case of Caldwell, objective recklessness was introduced as the appropriate test for recklessness for those charged under the Criminal Damage Act 1971. In Elliot v C (1983) a young girl of low intelligence was convicted of criminal damage for setting fire to a neighbour’s shed. She had been playing with white spirit and matches, without realising the danger involved. The fact that she had not appreciated the risk was of no relevance, as the test was purely objective. Fortunately the injustice of this outcome will not occur again following the decision in R v G and R (2003).