Utilitarianism is another objective element that is raised in the issue if justice. The theory of utilitarianism moves away from the basic principles of Natural Law, but still concentrates on the conflict between legal rules and divine Law. Utilitarian theorists point out that the view that the purpose of Law was to achieve the greatest happiness for the greatest number. In simpler terms, the Law is made to please the majority in society. This clearly illustrates the obvious defect in this view that the individual interests are ignored; only the majority’s happiness is considered. This is simply tyranny on the minority. John Stewart Mill adopted a similar theme and he believed that there should be a limit for the Law to intervene and that the only justification for interfering with a person’s basic freedom was where that person was causing harm to someone else and thus interfering with their freedom.
Utilitarianism can be contrasted with the theory of Karl Marx. He argued that in any capitalist society all Law is essentially unjust because it represents one superior class oppressing the other classes below. Therefore Marxist views are based on the redistribution of wealth and in simpler terms is called communism of balancing out On the other hand, Robert Nozick’s theory is based on the ownership of property and the manner in which it has been gained. If it had been gained fairly then the state has no right to interfere. Therefore communism is considered to be unfair because it interferes with basic individual rights. The only problem of balancing out economic considerations and justice is that what may be just for a society as a whole may be very unjust to a particular individual. This can be illustrated in the classic case of Jaime Bowen. This case involved the controversy over a health authority on how they refused to fund treatment for her leukaemia.
From this case, we can see that the function of Law plays an essential role in the nature of society and is the only way in which justice can be enforced. Professor Dworkin rejects Harts analysis of Law as consisting purely of rules. He argues that the rich fabric of Law contains not just a set of rules, but a set of principles on which all legal rules are based. Dworkin believes that legal principles are guidelines, leading an argument to a reason but does not dictate a decision. He claims that no one should benefit from their own wrong and that this should clearly be taken into account in deciding a dispute. Dworkin also identifies the differences between principles and rules. He argues that principles have a dimension of importance and rules lack those principles such as morality. This can be illustrated in the case of Airedale NHS Trust v Bland. This case involved a patient left in a vegetative state leaving the doctors to decide whether he has a right to live.
The theorist Bedau thought about the concept of civil disobedience. He pointed out that civil disobedience is the purpose of disobeying the Law in a good cause. It is a conflict between individual conscience and the Law. Examples can be given such as the poll tax riots, where people refuse to what they believed to be unjust tax. Other examples include public protests against a Law or government policy or protests involving an illegal act such as public order offences. The only criticism of civil disobedience is that erodes the rule of Law to the pint of anarchy. Weber, a theorist, also believed that without the discipline of Law, it would lead society to anarchy. His theory can be criticised as it denies the importance of moral, social an religious rules in society. This shows that Weber is clearly adopting a positivist attitude. This point can be contrasted to the viewpoint of Savigny who said that the Law reflects the ‘volksgeist’- spirit of the people.
We have discussed justice from a theoretical perspective, now we can look at justice from a practical view. Aristotle, a Greek philosopher was one of the earliest to put forward the view that all Law should promote justice. He categorised the function of justice into two parts: Commutative and Distributive justice. Commutative justice (also known as Formal justice) is the fairness in the legal procedure. Examples include the right to a fair trial, Art. 6 ECHR. The right to a fair hearing is illustrated in the case of Ridge v Baldwin 1964, where it was held that a police officer should be given an opportunity to present his defence before being dismissed. Access to justice act where an individual has rights to funding for a legal case, and the doctrine of judicial precedent where similar cases are expected to be treated alike in order to achieve justice. On the other hand there is distributive justice that seeks to achieve fairness in the content of the law, ensuring that benefits are fairly distributed. Aristotle also believed that individuals should receive benefits in proportion to their claim. Examples are such as equity in Contract and Tort law where the aim is to provide fairness by adding remedies to the common Law. The incorporation of the human rights act Art.8 the right to respect for family and private life. Also for the Law to balance conflicting interests as illustrated in the case of IN RE ‘A’.
Although Aristotle’s theory has been adapted into the legal system, there have been faults in many circumstances as recognised in the ‘miscarriages of justice’. An example is the case of Stefan Kizsko. This case arose from the rape and murder of a child. He was a backward adult with a very low mental age. As a result the police arrested Kizsko for an act which he did not commit. A similar case to Kizsko was the case of Stephen Downing. He too had a very low mental age and was accused of murdering a woman in a cemetary when apparently he tried to save the distressed woman who was bleeding very heavily. Downing spent 20 yrs in prison. Few other cases representing miscarriage are the cases of he Guildford four and the Birmingham six. They were a group of Irish men who were accused terrorist acts such as pub bombings in the 1970’s.
Although the aim of a Legal system is to promote equity ad achieve justice, it is evident that it has failed to do so as proved in the miscarriages of justice. One must also ask themselves why were there such failures. Some of the reasons are simply to do with the unfair legal procedures where the police had found no legitimate evidence to prove that there has been a wrongdoing. This resulted in innocent people receiving punishments that they did not deserve and being deprived from liberty. It is also debatable that litigants may be disadvantaged from winning justice in many aspects. The fact that all judges are from the same class and background, which could lead to biased opinions. The fact that policy gives too much discretion to the judges which may lead to unjust decisions on ‘policy grounds’. Defendants may also be disadvantaged as only 1% of jury can be used in criminal cases and the fact that juries are restricted in Civil Law. The rule of Strict liability could also be a problem as illustrated in the case of Larsonneur. The Discrimination Law could also prove to be a problem as it only protects certain categories. For example, other religions apart from Christianity are not approved within the Legal system.
Although the Law seems to adopt some positivist aspects such as parliamentary sovereignty and separation of powers, we should look up to the legal system in a optimistic way as justice is clearly an aspiration of the Law as evidenced by the symbol of the ‘weighing scales’. It is also evident that the Law is adhering to the natural law as the European Convention of Human Rights have been implemented so this shows that there is a shift from strands of positivism to principles of the natural law. This helps society to enforce their views as a whole and also helps elevate justice as one of the principle object of practical Law.
