Consider the suggestion that English law and institutions do achieve justice, and that they should seek

to do this. (30 marks) Law is a rule of conduct established and enforced by the authority, legislation, or custom of a given community, state or nation. Parliament is our supreme source of law which is declared and interpreted by the judiciary and can be delegated to individual counties as well as local authorities such as the Welsh assembly government. Justice has often been found difficult to define and so English law has found it an equal struggle to maintain something they cannot describe. Lord Wright suggested that justice was according to the law and could be different in each case; what appears just in a particular case is what appears just to a just man, in the same way as what is reasonable to a reasonable man. This has a close link with Aristotles theory of justice. He argued that the basis of justice was fairness and a just law was one which would allow individuals to fulfil themselves in society. Aristotle believed justice takes two forms; distributive and corrective. Distributive justice involves the law ensuring social benefits and burdens are fairly distributed throughout society e.g. taxes. The aim of this was to achieve proportion but this didnt mean equal shares. Corrective justice involved the law acting to correct attempts by individuals to disturb the fair distribution for example a wrongdoing such as theft. A judge should discover what damage has been done, try to restore equality by imposing penalties and compensate for the damage done if any i.e. through the aims of sentencing the defendant to an amount of community service or a combination of rehabilitation and deterrence. Aristotle supported St Thomas Aquinas assumption of there being a higher order of law and if the laws of society followed this order they would be just. St Thomas Aquinas believed the higher order came from God and said there are two ways in which the law could be unjust; the law being contrary to human good whether in its form or its result e.g. the poll tax, Aquinas believed this was not true law at all. However, such laws could still be obeyed to avoid causing social disorder. Secondly; a law which was against Gods will would be a violation of the natural law and should therefore be ignored i.e. to kill all male babies. Natural law theories can be seen within the English legal system with our emphasis on human rights legislation such as the right to life, freedom from slavery and forced labour, freedom of thought, conscience and religion. However this approach incurs problems such as in establishing the content and extent to any list of natural rights/law e.g. the right to vote is now a universal and essential right. Apart from this, for many years only those with property could vote and it is only in the last century women have been able to vote as well. John Rawls, a natural law theorist, made a recent attempt to identify a universal set of rights and principles. Based on a hypothesis of what decisions a group of people in an original position would agree upon. John Rawls approaches the question of justice through an imaginary situation in which the members of a society are to decide on a set of principles designed to make their society just and advance the good of all its members.

The original position also known as a veil of ignorance would incur the principles of the discussion to include an equal distribution of what he calls social primary goods which agrees with Aristotles first form of justice distributive justice. Social primary goods are believed to be the things which an individual would want in order to get the most out of their lives including rights, freedoms, powers and self respect. This involves two basic principles; Liberty available to all would include freedom of thought, conscience, speech and assembly. These freedoms would only be restricted when it was balanced out by the greater liberty for the community as a whole i.e. if an individual was suspected of a crime. This largely reflects our current legal system and our traditional view of innocent until proven guilty for example an individuals freedom is not interfered with unless there is reason to do so. The second principle involves equality; equality of opportunity and equality of distribution such as wealth, with inequalities allowed only where necessary to help the most disadvantaged i.e. much of the tax funds institutions such as the NHS. John Rawls view however doesnt explain what the principles should be and the veil of ignorance fails to establish whether or not an individual would continue to live by a certain law or principle if they where put in a situation whereby he/she did not want to share i.e. winning the lottery. Robert Nozick argues that for a truly just society the state should have little involvement and interference with individuals. The states functions should be limited to basic needs such as protection against force, theft and fraud. Nozicks theory emphasises the importance of individual rights especially to property. He believes the state should have no interference or role in adjusting the distribution of wealth. This can be criticised but Western society appears to be moving in this direction as the Government emphasises the lowering of taxes and the expectation of individuals looking after themselves rather than depending on taxes being taken from the rich to give to the poor. An example of this would be the NHS system and more patients turning to private medical treatment or even foreign private treatment. Karl Marx held a more realistic approach that it was impossible for a capitalist society to be just as such a society was organised in the aim to uphold the interests of the ruling class rather than securing justice for all. Marx believed a just society would distribute wealth from each according to his capacity, to each according to his needs although no country has been able to act out Karl Marxs philosophy. This suggests that perhaps those at the top end of societys hierarchy organise society to benefit themselves and, with a Marx view, use the government to oppress and justify the lower end of the hierarchys position. This contradicts the utilitarian view that society should be organised to achieve the greatest happiness for the greatest number no matter what position or class. John Stuart Mill was a leading exponent of this theory, by assessing the justice of rules, therefore law, by looking at the consequences. He believed that if a rule maximised happiness or well being for the majority, it was just. Therefore a law could be just even if it created social inequalities or benefited some at the expense of others as long as the benefits of the majority exceeded those of the minority such as sexual predators for example; whereby the names of sexual offenders are made available to those living in the same area. Liberal, or natural rights theorists object to this approach that the happiness of the minority is ignored. Kelsen agrees with this selfish view as he believes the law can be separated from what is just (or morally right) a law should still be obeyed even if it just or immoral. Kelsen argues it isnt possible to define justice as it is simply an expression

of individual preferences and values and is, therefore, irrational it is just for me, so therefore is just. The Sophocles quote there are higher laws than those of the state which supports the natural law view of Aristotle and St Thomas Aquinas although this could also emphasise Kelsens view. As the law is believed to reflect the view of society and its morals on fairness and justice and this could be an example of higher order of law societys moral norms and values. However, this questions whether or not our English legal system achieves justice. There are two steps in our constitution which aims to achieve justice; formal and substantive justice. Formal justice concerns a just system and requires a system of independent tribunals for the administration of law and the resolution of disputes. The courts of first instance, the appellate courts and various forms of ADR ensure that our legal system meet the requirements of formal justice. Formal justice also requires that institutions follow known and fair rules and procedures such as our rules of due process and fair procedure, rules about admissibility of evidence i.e. hearsay is not admissible. Also, rules of limitation periods such as a claim in tort cannot be brought after 6 years and the limitation is 3 years if for a claim of personal injury. This ensures our law can self correct, injustice to be amended i.e. R V Ahluwalia as all cases can be appealed and retried if the previous decision has been unjust. Also, future mistakes are prevented, by courts being able to interpret law and apply it appropriately. An important contribution is made by rules of natural justice such as audi alerem partem both sides must be heard and all having the right to a fair trial. Furthermore the European Convention of Human Rights is now part of our law through the Human Rights Act 1998. This enables the legal system and its courts to consider how other cases are dealt with in different countries such as a wrong being legally wrong in Britain but morally wrong in Australia. Moreover, such as in R V Brown which became Jaggard, Laskey & Brown V UK on appeal to the European Court of Justice, difficult cases can be considered by higher courts to ensure the law is developing in the right direction alongside societys current norms and values. It is important that anyone with grievance has access to these institutions and more needs to be done to ensure the most disadvantaged and poorest sections of society can get access to justice i.e. with the help of legal aid for defendants or claimants who cannot afford solicitors and conditional fee agreements. Moving on to substantive justice, this concerns a just outcome or result. The English legal system has a variety of mechanisms designed to ensure just outcomes. The common law has principles of stare decisis (let the previous decision stand) which is the basis for our system of precedent. Devices such as overruling and distinguishing on material facts i.e. one case is different to another. These work towards a just outcome in any given case and the just development of the common law. The law of negligence is a good example of common law mechanisms ensuring a just result such as the Caporo V Dickman or Donaghue V Stephenson principles which can be adapted to cases to confirm or deny negligence was present. For example liability will not be imposed unless the defendant was at fault in causing injury or loss. Also, the defence of contributory negligence will allow the court to share out liability in a fair and just way where the claimant was partly to blame for their own loss or damage Jones V Livox Quarries. In criminal law the principles of sentencing seek to achieve a just balance of conflicting interests between the victim and the defendant. The statutory aims of sentencing contained within the Criminal Justice Act 2003 reflect this balance of

conflicting interests. For the victim getting retribution, for society the deterrence and for the defendant the rehabilitation and ensuring the punishment fits the crime and isnt excessive. A basic principle of our legal system is that like cases must be treated alike. Therefore if two people commit a crime in identical circumstances they should be punished in a similar way. One of the definitions of justice is; The correct application of law as apposed to arbitrariness choices made depending on ones mood. - Oxford English Dictionary This supports the basic principle and that this aim of like cases being treated alike require fixed rules for the decision makers to base their verdicts on the application of these rules not on factors such as their own mood or their personal opinion. On the other hand, the downside of having these fixed rules is that injustice may be done to a particular defendant such as in the crime of murder. If the intention to kill or seriously harm is present the motive is largely irrelevant but this questions cases of euthanasia which is currently being discussed in the House of Lords. This appears unfair and therefore unjust. Lord Nicholls discussed fairness in the divorce case of McFarlane: Fairness is an elusive concept ultimately it is grounded in social and moral values they change from one generation to the next there can be different views on the requirements of fairness in any particular case. The principles of equity are important in trying to achieve justice in our legal system with its fixed rules. Its aim is to provide justice in cases where ordinary rules of law fail to do so and therefore encourage society to trust the law. Equitable principles are still important in some areas of civil law and allow the court to use their discretion in order to do justice in individual cases. The Law Commission was set up to develop the law to keep under review all the law with a view to its systematic development. Part of its role is to repeal obsolete law (parliament is currently debating the 18th century Statute Law [Repeals] Bill). This is important as Lord Atkins has commented that outdated legal practices are; like a ghost standing in the path of justice clanking its medieval chains - which greatly affect many miscarriages of justice. In conclusion to this the challenge of the English legal system and institutions to attain justice and portraying that they seek to do so is in maintaining a balance between too much discretion - leading to the possibility of unfair decisions based on personal opinions and moods and too little discretion leading to harsh results in individual cases. Our law has the capacity to be self correcting which lays down a particular sentence for a particular crime when there is no remedy available, parliament can then correct matters through legislation. Therefore our systems of formal and substantive justice seem well equipped to achieve justice according to the law with the systems capacity for development and self correction. However, parliamentary supremacy may mean that the laws werent previously just and so looking at the theories of justice perhaps it is more of a benefit rather than a difficulty that there is no clear definition to justice as this keeps flexibility to an ever changing society.