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Law and Justice

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Introduction

Law and Justice The law is a set of standardised procedures and mechanisms used in the enforcement of basic rights and the regulation of society. Sir John Salmond defined law 'the principles used in the administration of justice' Justice is more difficult to define than law. Basically, it can be viewed as 'the principle of fairness', but this then leads to a discussion of what 'fairness' means. This has led to many differing definitions of justice being put forward. There are two main ideas of justice - procedural and substantive. Procedural justice views something as just if the correct procedures are followed, even if the procedures are not fair to begin with. Supporters of procedural justice say that for there to be justice it is important that everyone is treated in the same way and has the same rights. However, it is sometimes the case that it is not 'fair' for everyone to have the same rights. For example, the right to represent yourself is an important right, but is it appropriate in rape cases for the defendant to be able to cross-examine his alleged victim? ...read more.

Middle

An unjust law might be contrary to human good or against the higher law derived from God. A law which went against this God-derived law would always be 'unjust' and should not be obeyed. The Human Rights Act would suggest that there is a close connection between the law and the natural law theorists' concepts of justice, because it incorporates into English law and the European Convention on Human Rights which sets out 'fundamental' rights, such as freedom of expression and freedom from torture. Natural law theorists would support the decision in Dianne Pretty's case because it upholds the sanctity of human life. An alternative theory is that of utilitarianism, argued by Jeremy Bentham, which measures the justice of a law on the basis of its consequences - if it benefits the majority, then it is just. This means that a law may create social inequalities, and benefit some of the expense of others, but if the gain to the majority exceeds the loss to the minority, then it is just. Professor Rawls, in a view known as 'the original position', developed the idea of a just society being one which a group of rational but mutually disinterested people would unanimously choose to belong to if such a choice were available. ...read more.

Conclusion

However, it would arguably not be just to allow this defence for all offences as this would mean that people who committed acts of violence when drunk would be perceived to be getting away with something for which a sober person would be convicted. There is also the issue of whether the victim would feel that justice had been done. One solution might be to deal with each case on its own merits and leave it to the common sense of the jury. But this in turn might raise the issue that defendants are not being treated equally, which would be against procedural justice. In conclusion, it is clear that although some laws do not appear to be connected with ideas of justice, e.g. which side of the road we drive on, the law in general is closely connected with justice. Laws may become unenforceable if they go against prevailing views I what is just and it must be a fundamental principle of a democratic society that laws are based on ideas of justice. At the same time it is clear that what may seem just to utilitarians might not appear just to supporters of natural law. ...read more.

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