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Justice - Introduction

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Introduction

Most people would accept that justice should be the aim of any legal system.  Nevertheless, some legal systems exist without any apparent notion of justice.  One only has to think of the totalitarian regimes in Iraq under Saddam and Russia under Stalin, where the law was simply a means of repression, not a means of doing justice.

 

What does “Justice” mean?           

Justice is firmly embedded in the English Legal System and in the minds of UK subjects.  We see “Justice” in the language of the law, we talk of Royal Courts of Justice, Lords and Lady Justices of Appeal and magistrates have been referred to as Justices of the Peace since at least 1361

 

However, we never talk of taking cases to justice, but to law, and to some people the courts do not do justice.  A group called “Justice for Fathers” claim that family law is not just, and the courts deny them and paternal grandparents justice.

 

We are driven therefore to ask if a particular system is just, or if a particular law is just, or if the outcome of a particular court proceeding is just.

 

A vexed issue in criminal law is that by trying to ensure everyone receives a fair trial some guilty people are acquitted, and some innocent people are convicted.  The law appears incapable of ensuring that this does not happen. This should not be overstated; the number of miscarriages of justice is, in fact, a very small percentage of those tried by the courts.

 

Some judges will seek to do justice despite arbitrary rules; others see the legal rules as paramount in order to justice by providing certainty in the law. Lord Denning said, "My root belief is that the proper role of the judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid the rule, even to change it, so as to do justice in the instant case before him."  (The Family Story" (1981)).  The primacy of legal rules was stated by Sir Robert Megarry VC, "The question is not whether the [claimants] ought to succeed as a matter of fairness or ethics or morality. I have no jurisdiction to make an award to the [claimants] just because I reach the conclusion ... that they have had a raw deal. This is a Court of Law and Equity (using "equity" in its technical sense), administering justice according to law and equity, and my duty is to examine the [claimants'] claim on that footing." (Tito v Waddell (No.2) [1977]) 

 

Definitions of Justice

Aristotle taught that “fairness” is the basis of justice that we find in two forms: Distributive Justice and Corrective Justice.  However, this simply replaces ‘what is just?’ with what is fair?’

 

Justice might be apportioned according to merit; to worth, to need, to status, or according to entitlement; but whichever criterion we use, subjective facts come into play.  This is the province of policy, which Dworkin concluded was the role of Parliament to determine and not for the court.

 

The law is said to be a means to an end and for substantive justice to exist not only must the procedures by which the law is applied be seen to be fair but also the content of the law that is, the social ends to be achieved. The analysis of substantive justice brings us back to such questions as to role of law in society and the relationship of law and morality.

 

Concrete and substantive justice

Equity softens the common law, but is rarely found to have application in the criminal law.  In

Central London Property v High Trees House [1956] KBD Denning J would not allow a claimant to go back on his promise to reduce tenants’ rent during the war, and he looked for a fair outcome, substantive justice, rather than just following the letter of the law.

In criminal law, judges use the word “policy”, not equity, and by appealing to “policy” can do justice in the criminal law where the rules would dictate that another course should be followed.  In  R v Wacker [2000] CA Lord Justice Kay said

“Thus looked at as a matter of pure public policy, we can see no justification for concluding that the criminal law should decline to hold a person as criminally responsible for the death of another simply because the two were engaged in some joint unlawful activity…”

Perry Wacker had been responsible for the deaths of 58 Chinese immigrants he carried in the back of his lorry.

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