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33 Cards in this Set
- Front
- Back
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What is the meaning of justice ? |
In Oxford “Just Conduct; fairness” - free from discrimination, dishonesty... in conforming with rules or standards. |
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What did Lord Lloyd state? |
Defining justice can be difficult, can vary from age to age, person to person, and according to existing economic relations. |
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What did Perelman subscribe to? And believe? |
Beloved once the type of justice is subscribed to society, all individuals had to be treated the same. He subscribed to the theory of formal justice. |
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What are the 4 types of justice? |
- procedural - substantive - distributive - corrective |
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What is procedural justice? And an example |
Looks at whether legal processes and institutions produce fair and just outcomes Example - if a worker is late then should get same punishment as another |
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What is substantive justice ? And example |
Is concerned with whether the rules are just Example - murder in self defence |
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What is distributive justice ? And example |
Is concerned with the fair allocation of benefits and burdens within society Example - if stranded on a dessert island then who should get what? |
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What is corrective justice? And example |
Requires the righting of wrongs through fair remedy or punishment Example - retribution and remedies in tort and contract |
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Who is Aristotle ? And what did he state? What justices did he introduce? |
He was a theorist who stated “equals should be treated equally and unequals, unequally.” - i.e. the principles of proportionality. Introduced distributed justice and corrective justice. |
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Who is Aquinas? |
Validity of law depends on conformity with higher law emanating from God. I.E. How valid a law is depends on if it conforms with laws from God States if goes against God will always be ‘unjust’ and should not be obeyed. |
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What did Professor Lon Fuller state? |
Legal system is valid if it conforms to 8 procedural requirements including that it is in existence, published, understandable and consistent. |
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What is utilitarianism? |
Developed by Jeremy Benthamt. Based on a principle of utility, approving every actuionbthat increases human happiness. Overall... a view that justice should seek happiness in the majority not minority. |
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What is a positivism? Supported by who? |
Supported by John Austin and Professor Hart. John Rawls added that Justice was fairness. We should look at people behind a “veil of ignorance” and therefore not knowing the class, the social standing etc. of a defendant and therefore treating them with fairness and achieve justice. |
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What is economic theory ? |
Theory looks at maximising happiness in an economic sense. |
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What is the marxism-economic theory ? |
Argued that justice can not be achieved until the ideal society is in place. A defected society will never create justice. He stated that once this ideal society existed there would be no need for laws to conform to. |
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What is Entitlement theory? Who developed this? |
Robert Nozick developed the entitlement theory of justice. Stated that individuals have natural rights to the enjoyment of life, health, liberty and possessions, free from interference by others. Laws should only intervene to protect natural rights. |
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Summarise natural law. |
Law exists in the natural order of things and is discovered by man rather than invested by him. It drives from God or nature. |
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Summary of Positivism. |
Laws are separate from morality and based only on clear rules. |
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Summarise utilitarianism. |
A just law is one which aims to maximise the sum total of human happiness. |
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Summarise economic theory. |
This theory looks at maximising happiness in an economic sense. |
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What extent is justice achieved ? |
Varied across each theory. E.g justice is not achieved according to Nozick and Marx. |
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What did Dicey outline in terms of rules of law ? |
‘ no man is above the law ‘ |
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What did Phil Harris argue? |
The idea of natural justice has no mysterious or magical meaning, simply refers to the duty to act fairly. Shown in case of R v Bow Street Metropolitan Stipendiary Magistrate Ex Parte Pinochet... when Pinochet, former dictator of Chile, should be extradited to Spain to face charges of human rights abuse. |
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Explain separation of powers in terms of judicial independence. |
One way in which the rule of law is guaranteed is by having an independent judiciary able to review the decisions of politicians and public officials. |
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What is the system of judicial review? |
The system does not examine the merits of a decision, but whether the body or individual in question were within their rights in making the decision. If the decision is ultra vires (beyond their powers) it can be quashed. |
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Explain access to justice and how it affects justice. |
English law has become more and more unjust in recent years. Access to justice act 1999 & The Legal Aid (sentencing and punishment of offenders) Act 2012 have introduced a limit on the amount of funding available. This makes it hard for people with limit money to get funding. This also contradicts fairness and equality, as well as causing conflict between theories of distributive and corrective justice as argued by Aristotle and Rawls. |
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What concerns follow the criminal justice system? Include two examples. |
Miscarriage of justice cases like Guildford Four and Birmingham Six raises questions about justice system. Concerns with confessions, treatment of defendants and reliability of forensic evidence. |
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What did the Criminal Justice Act 2003 (CJA) enable? Shown in what case? |
Enabled retrial of a case if there was new compelling evidence. Shown in Stephen Lawrence. |
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What case was retried in the appeal system? (Besides Lawrence case) |
William Dunlop case. Was acquitted in 1989 but later admitted guilt to a police officer where they retried him in 2006. |
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What is trial by our peers? |
Everyone has a right to a fair trial. This can be done through a trial by our peers.. aka a jury. This trial is under Art 6 of the Human Rights Act 1998. They’re defined by Lord Devlin as “the lamp that shows that freedom lives” |
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Why are juries good? |
Give equality and fairness based on the facts without influence of law. Juries have equity, which allows justice in acquittal even when the d has clearly broken the law... seen in a Case of Ponting, where d broke the Official Secrets Act 1911 in order to protect the public. |
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Negatives of juries. |
- unable to understand directions of the judge and the evidence. - problems with jury nobbling - Rawls' 'viel of ignorance’ is at stake with increased media coverage of cases and trials. As well as increased use of social media. - 12% admit to internet research even tho’ not aloud (it’s an offence) - e.g. Theodora Dallas and Joanne Fraill who looked up d online and got jailed. - jury room is private so don’t know how reach verdict. - don’t give reason for verdict. - use to use Ouija board for verdict ... now illegal. |
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Negatives of juries. |
- unable to understand directions of the judge and the evidence. - problems with jury nobbling - Rawls' 'viel of ignorance’ is at stake with increased media coverage of cases and trials. As well as increased use of social media. - 12% admit to internet research even tho’ not aloud (it’s an offence) - e.g. Theodora Dallas and Joanne Fraill who looked up d online and got jailed. - jury room is private so don’t know how reach verdict. - don’t give reason for verdict. - use to use Ouija board for verdict ... now illegal. |
