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Maintains a link to religious or ethical precepts: The common law legal system is the product of various historical influences, many of which were the religious and moral viewpoints of different times. In today’s society, ethics and how they coincide with the law are being replaced by the need for the law to protect society as a whole and consider economic interests.
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Is utilitarian: Utilitarianism is the theory which suggests the law aims to ensure the greatest possible happiness for the greatest possible number of people.
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Stresses consensus and social cohesion: Democracy helps create legal consensus. Democratic processes provide all citizens within the state with the opportunity to develop or create the law. Democratic processes will generally require a majority or consensus to bring a law into being. Democratic processes are designed to endure the survival and well being of the community through stressing consensus.
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Allows for general principles to be mitigated in individual cases: Mitigation allows for fairness. The law attempts to treat everyone equally; that everyone in similar situations is taxed the same, everyone who commits the same crime is given the same penalty. However the courts have discretion to reduce the penalty according to the circumstances.
- Aims to address inequalities.
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It leaves people free: To the extent that people do not break the law, a just law will leave people free.
- It takes into account of limitations in material resources.
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It can be invoked without undue delay: A just law should deal with a legal problem or dispute as soon as practicable after that problem or dispute arises. This is because people’s memories fade and so their evidence becomes less reliable as time passes. However this is not always the case, as currently the Australian legal system has lengthy delays and cases take long periods of time to reach the courts.
- Does formal equality before the law hide institutionalized inequality?
Formal equality is the equal treatment of all people (in certain defined circumstances) despite background, social/economic status or personal beliefs. However formal equality does not however ensure equality of outcome or the prevention of institutionalised inequality. Treating each person exactly the same is fair in that each person is receiving equal treatment regardless of their background etc…however the outcome of this may not be fair or equal. For example two women charged with the murder of their respective husbands, one committed this murder for financial gain, the other committed the crime due to long term physical and mental abuse from her husband – if the women are both treated as women charged with the murder of their husbands, formal equality has been achieved as the women are treated equally before the law – however the second woman’s abuse was not taken into account –therefore formal equality has hidden institutionalised equality as the treatment seems equal. A response to this is the provision of “Battered Women’s syndrome” in the Sentencing Act. This was first accepted in the case of Runjanjic &Kontinnen (1991).
Another example is the sanction of fines, if socioeconomic status is not recognized institutionalized inequality still exists, even though formal equality is met through the consistent application of fines. For example, fining a millionaire $5000 for a crime compared to fining another (who committed the same crime) who earns a small income the same fine is formally equal in that they both have received the same fine for the same crime, however the fine would have little impact on the millionaire and a devastating impact on the other person.
Formal equality also promotes institutionalised inequality in that it does not allow for a persons background or mitigating circumstances be revealed. This means that in many cases a defendant cannot afford counsel or specialist counsel and therefore is not receiving a fair and equal defence. Though legal aid is provided for some, some people are not eligible, yet cannot afford their own counsel (or competent counsel). Not allowing socioeconomic status to be recognised means that the defendant fails to receive an equal trial to that of the prosecution or plaintiff.
Similarly, someone who has received little education, or has language difficulties (under formal equality) is treated equally as they are treated like everyone else, however, they are disadvantaged in that they may not understand the proceedings or be ignorant of the law, not taking this into consideration under formal equality means that equality of outcome and opportunity have not been met.
This concept was explored by Australian Law Reform Commission (ALRC)'s Equality before the law reports (ALRC 67 and ALRC 69 Parts I and II) where it quotes “Equality before the law means more than merely formal equality or equal treatment. True equality requires a legal system in which women's needs and experience are understood. Law cannot work in a vacuum.
The above must take account of the social, economic and political environment in which women live if equality before the law is to exist” highlighting that formal equality is not the only form of equality and does not ensure equality before the law.
