Law & Justice Essay Structure

How to structure a law and justice essay in the A2 Law Unit 4 AQA exam

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  • Created by: Laura
  • Created on: 15-06-14 19:26

Define Law

  • Sir John Salmond: "a body of principles recognised by a country or community and applied by the state."
  • Binding
  • A system of rules
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Define Justice

  • Aristotle: Referring to individuals in their dealings with each other and to the state in making and enforcing laws
  • Lord Wright: The guiding principle of a judge in deciding cases is to do justice, that is justice according to the law, but still justice.
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Theoretical Standpoint 1: Aristotle (Distributive)

  • Hard work being rewarded
  • Creating fair distribution of wealth for those who earn it
  • Karl Marx = opposite of Aristotle (wealth being distributed equally)
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Theoretical Standpoint 1: Aristotle (Corrective)

  • Correction of a disturbance in the just distribution of wealth
  • When applying corrective justice, it is ensured that gains and losses of each party are equaled out so that the offender does not benefit from his wrong doing and the victim does not suffer loss
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Theoretical Standpoint 2: Thomas Aquinas

  • Is a natural law theorist like Aristotle
  • However, believes in a middle ground between Marx and Aristotle
  • Aquinas followed the principles of a natural law that believes in a "higher" being (God), that creates laws (morals)  that we follow, and believed that justice is achieved when things were allocated in due proportion.
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Theoretical Standpoint 3: Mill's Harm Principle

  • Devloped from Bentham's Utilitarianism idea that promotes the greatest happiness for the greatest number
  • Transformed the idea to protect the minority rather than the majority
  • Punishment was evil unless it brings public order and only then can it be justice
  • Bentham sought to create happiness for the majority and ignored the minority (known as the swine ethic)
  • Rawls: If slavery was considered to be a benefit of society, then the wellbeing of the slave-owners would outweigh the suffering of the slaves, therefore Utilitarianism would be forced to accept slavery
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Procedural Justice

  • Application of rules and procedures
  • E.g. Legal aid, which provides access to justice
  • Due to funding cuts, a utitarian approach to legal aid is being taken: only allocating it to those most in need, making access to justice harder
  • If we didn’t have access to legal aid only those with the money would be able to afford legal representation
  • Injustice between the upper and lower classes
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Miscarriages of Justice: Guildford Four

  • Convicting of bombing a pub
  • Detained for 15 years
  • Released because of a fault in the procedural justice during their trial
  • Never compensated for the fault
  • Lead to the establishment of Criminal Case Review Commission who aim to deal with suspected miscarriages of justice
  • Reviewing takes a long time
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Natural Justice

  • Trial has to be impartial and fair with no bias and no personal interest in the case
  • Pinochet's judge has a personal interest in the case
  • Trial by peers: allows a jury to decide guilt
  • Ponting = D was obviously guilty yet jury chose to find them not guilty
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Substantive Justice

  • "True" justice = facts of the law
  • Sentence structures reflect the seriousness of the crime and blameworthiness of D
  • S.18 OAPA (GBH with intent) will carry a heavier sentence than a S.20 (Intent or recklessness as to some harm) as the culpability differs
  • Like cases must be treated alike, however The Coroners & Justice Act 2009 recognises lower culpability in some cases
  • E.g. battered wives, such as Ahluwalia and Thornton where the new defence of loss of control takes into account the fact that although these women murdered their husbands, the law has some sympathy for their circumstances
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