justice

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  • Created by: Michael
  • Created on: 20-06-12 17:34

Justice is not the same as law. Laws are rules, which must be obeyed by everyone in society. They are rules made with authority and they are created and enforced by the state. Justice is about fairness, the idea that people should be treated in the same way, though as Perelman points out it is not always just to treat people in the same way. For example it would not be fair to always give people identical sentences for the same offence because that would take no account of mitigating or aggravating factors.

Sir John Salmond defined justice as based on two main ideas: Substantive justice - the rules must be fair in themselves and Formal/procedural justice - the rules must be applied in a fair way.

There are many theories about justice. The Greek philosopher Aristotle, for example identified two types of justice. Distributive justice is the allocation of assets, such as wealth and honour in a proportionate way, not based on equal shares but based on the contribution made by each individual. Corrective justice applies when distributive justice is interrupted by wrongdoing and involves punishing the offender and giving compensation to the victim.

Natural law theory is based on the idea that there is a higher order of law and if society follows this order, then it will be just. Some have argued that this law comes from nature but St Thomas Aquinas said that it came from God. He argued that if a law conflicted with natural law, it need not be obeyed.

According to utilitarianism, put forward by J.S. Mill and Jeremy Bentham, society should work towards the greatest happiness for the greatest number, even if some individuals lose out. This means the minority will lose out resulting inequality.

 

Marx believed that justice was only possible with the redistribution of wealth depending on peoples need, this would benefit the poor. Whereas in contrast Nozick believed people should be able to enjoy their wealth with as little interference from the state as possible.

John Rawls believed that justice could only be achieved by placing people in the original position behind a veil of ignorance. The system chosen by these people would be just. This is because these people would not know what their position would be in the system they were creating meaning they would create rules that are fair for everyone: rich or poor. This idea of justice is one that many people in modern liberal democracies would accept and it seems to address the criticisms that could be made of the utilitarian view and the arguments of Marx and Nozick.

It could be argued that the position in Britain fulfils the criteria that Rawls sets out. Both the rule of law and natural justice operate and any decisions of government can be challenged through judicial review conducted by an independent judiciary. Basic rights are safeguarded by the Human Rights Act and there are many examples the government losing human rights cases e.g A and

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