Law and Justice

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  • Law and Justice
    • Justice in the English legal system
      • Legal Aid: government money allocated to assisting those less financially fortunate with the cost of obtaining legal advice and representation in both civil and criminal cases.
        • Based on Rawls' theory of social justice - it aims to provide all access to inalienable rights, i.e.: right to justice, right to a fair trial. This allows all an equal opportunity to obtain justice in a court of law.
        • Annual budget of £2.1 billion introduced in Access to Justice Act 1999 faces potential cuts of £350 million. Certain cases will no longer be eligible for legal aid (i.e.: family law, benefits-related).
          • Social justice: cuts are deplorable for they deny one access to their inalienable rights. Without legal aid, society's most vulnerable group's ability to procure justice is detrimentally hindered.
          • Utilitarianism: if these cuts are then fuelled into another public sector, one which is widely used, this may result in the greatest pleasure, and therefore be morally justifiable.
          • Kantian deontology: 'Deny people of their rights to save money' is no a maxim which can be universalised, for it is ultimately self defeating. Enacting such a maxim treats one as a means to an end, so cannot be justified using the categorical imperative.
        • According to a 2017 Law Society report, cuts to legal aid have actually increased costs to the taxpayer, due to prolonged legal proceedings.
      • Sentencing and Sanctions
        • Sentencing should be proportionate to the offence committed, taking into account mitigating and aggravating factors. Guidelines should lead to equality across the board when it comes to sentencing - but this is not always the case.
          • i.e.: There is inconsistency among magistrates in different counties, according to a 1990 survey conducted by Liberty. Double the number of defendants in Greater Manchester are sentenced to serve prison time than in Merseyside.
        • Provision of damages in tort law is based upon a more sophisticated model of Aristotle's corrective justice. The award of damages aims to rectify the harm caused by the defendant by providing financial compensation to the claimant. This compensation should restore the claimant to their pre-tort position as far as it is able.  Contributory negligence adjusts the damages in proportion to the claimant's contribution to his own harm (i.e.: Jebson v MOD, 2000)
        • Attached to a  murder conviction is the mandatory life sentence. A judge is only able to recommend a minimum tariff the defendant should serve.
          • Justice is, for some, served for it is retribution - the proverbial 'eye for an eye', if you like. For those who take life, it is only fair for their lives to be taken in return.
            • Utilitarians believe all forms of punishment are evil, but recognise the need for it in society where it conforms to the principles of utility, such as for public protection, or where it seeks to deter others. Retribution - revenge - does not conform to the utility principle, and is thus not a valid reason.
          • The mandatory life sentence fails to be reflective of the culpability of each individual defendant in any murder case. Not all murderers are as culpable as others. Does a man who kills his wife suffering from a terminal illness (Cocker, 1989) deserve the same sentence as a merciless serial killer? The mandatory life sentence cannot be proportionate to each individual case, and so is not just.
            • Media: Chicago Med's season one finale, Timing, sees cardiothoracic surgeon Connor Rhodes assist his terminally ill mentor's death.
      • Miscarriage of justice: a failure of a court to attain the ends of justice, especially one which results in the conviction of an innocent person.
        • Some cases result in a miscarriage of justice, where one is convicted for a crime they did not commit, such as Sally Clark, a woman convicted for the murder of her two young sons, who were later discovered to have died from Sudden Infant Death Syndrome (SIDS).
          • Miscarriages of justice typically occur as a result of prosecutorial failings (in Sally Clark's case, the prosecution presented incorrect statistical evidence) or police misconduct.
        • After the conviction of the Birmingham Six was overturned, just one in a string of high profile cases which has had their verdicts quashed around that time, the Criminal Case Review Commission was established. The role of the CCRC is to review cases of believed injustice - not to determine innocence and guilt. They seek to ensure that the defendant was not denied their right to due process.
          • Does this go far enough to redress the injustice of wrongful conviction? Can anything redress the injustice of wrongful conviction? How do you compensate someone for the time they have lost? The milestones they have missed? The relationships that have been destroyed? The reputation which has been tarnished? Shouldn't the system seek to ensure such injustices don't occur in the first place?
            • Sadly, following her release from prison in 2003, Sally Clark was unable to recover from the effects of conviction and imprisonment. She died in 2007 of acute alcohol poisoning.
    • Theories of justice
      • Distributive justice: concerned with the fair allocation of the benefits and responsibilities of life.
        • Aristotle's distributive justice stressed the need for proportionality and achieving balance between two extremes (the middle way). He was concerned with how society's wealth would be fairly distributed. He said a just state would distribute based upon one's merit (his contribution).
          • Aristotle also defined a second type of justice, known as corrective justice, which sought to ensure one kept their entitlement. Where one causes loss to another, the punishment must not allow the offender to benefit from his wrongdoing, nor the victim to suffer any further loss.
        • Aquinas' distributive justice was governed by 'due proportion', which gives people what they are owe according to their merit (their contribution to society), their rank (their social status) and their need (Aquinas believed we have a moral obligation to care for society's poor).
        • Karl Marx offers a radically different model of distributive justice which enshrines the two main principles of communism: 'from each according to his ability, to each according to his need'. One will maximise his contribution to the common wealth. He will then receive based upon his need, rather than his contribution.
      • Utilitarianism: the object of justice is maximising pleasure and minimising pain for the greatest number of people
        • Jeremy Bentham was a proponent of act utilitarianism, which held that the right course of action to take is the one which maximises the pleasure of the majority. He designed the hedonic calculus which must be employed on a case by case basis to determine the morality of each action.
        • Bentham's godson John Stuart Mill did not agree that pleasure was calcable, but did recognise that some pleasures are greater, or more valuable, than others. He regarded intellectual pleasures of art and emotion as higher pleasures, which bodily pleasures where lower pleasures. Higher pleasures, he said, are still more desirable, despite their habit of resulting in pain and discontentment.  He wrote: 'It is better to be a human being dissatisfied than a pig satisfied.'
        • Rule utilitarianism states that the right action to perform in a situation is one based upon rules which, if universally upheld, would create the greatest amount of pleasure  for the greatest number of people. Weak rule utilitarianism allows for exceptions. 'Do not lie' will generally result in the greatest happiness, but there are scenarios where following this rule will result in greater anguish.
      • Social justice: a system in which the burdens and benefits of society are distributed in an equitable manner.
        • John Rawls demonstrated social justice by operating a veil of ignorance, where no one knows beforehand what their position in society will be. He believed that if this was the case, the benefits and burdens of society would be distributed fairly, as to provide everyone with equal opportunity.


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