Furthermore, there are more theories on the economic view of law and justice; like economic analysis, Rawls theory, Nozick and the minimal state, Karl Marx and lastly Hans Kelsen.
Economic analysis is a theory that works on the basis that everything has a financial value. Regardless if you are buying something, or if you are selling it, it still has a financial value. The main conflict is the balance between the needs of the society and the needs of the individual. This is a very similar theory to that of the utilitarianism. For example, if a general practitioner would have to pay £500,000 for the surgical services in order to operate on an individual, who would he operate on; the one who has a life threatening condition which would use most of the budget up, or one whose condition is not life threatening and wouldn’t use most of the budget up? For this scenario to be fair, I feel that regardless of the financial value, if the practitioner is able to provide the service he should do so. This is because it provides more of a just manner as someone who was of an upper class would still require the surgery and change the outcome of a life threatening to a non-life threatening. Ones financial status should not intervene of the law acting fair and just to an individual.
Jhon Rawls theory was that the society should decide and design a set of principles which is just for the greater good of society. This way, the government as well as society know that these laws will be adhered to, and looked up to. This is because they are the laws which society produce and are more imaginary for the majority than having legal laws by the government. By designing a set of principles, the society would have to disregard their position within society. For example, the rich, poor, disabled, young, old etc. However, this could be a disadvantage as the rich would design principles that favour them and vice versa for the poor. Those who are not disabled would design laws to suit their needs, not taking into consideration the needs of the disabled. But then it was argued that the ‘original position’ one is meant to be in at the time of setting the principles, they should be free from personal bias and take the needs of the society into consideration, without being selfish and looking at only their needs. However, this could be a limitation as some of society may feel that they were the least advantaged of the group. This would then lead to a disagreement of a set of basic rights and principles, which each member would find acceptable for their own requirements. He argues that there are two basic principles; first one being that a set of liberties would be available to all, like freedom of thought, speech and conscience. But then it would be compromised to meet the needs of the greater good. For example, because of having the public’s interest to consider, you would disregard a dangerous criminal their right to liberty. The second principle being that each individual should have equal opportunity as well as equal distribution. Rawls considers equality as in the distribution of wealth. Inequality is only allowed to help the mast disadvantaged. These principles could then be argued as it does not state what is meant by fair, as this could mean… it also does not describe or give a description as to what the basic rights and principles are of a human being. Could the basic right and principles be to have food and shelter on their plate, or would it be to have the freedom of speech etc.
Nozick and the minimal state, is about how the state should have a minimum interference in people’s lives, following a just society. The state should restrict to provide society with the basic needs like protecting one from theft or force. He felt that if ones property or wealth is legitimately and fairly obtained, then it is yours to keep. Property can be legitimately and fairly obtained in 3 ways; just acquisition like inheriting something legally, just transfer like purchasing something from another legally, and lastly just rectification following an unjust acquisition like returning stolen property to its rightful owner. Nozick does not look at how wealth should be redistributed to gain equality but in fact if you have attained something legally and fairly, it is yours to keep. He does not believe in the fact that property can be owned by the State, but it is owned by the individual. The main criticism for this theory is that it states that people, who don’t have wealth, should not be helped from the state. If this was to become the reality, how do individuals be trained for a good job, if capital deprivation is there to prevent them?
Karl Marx’ theory is that the law and legal system should intervene in the life of society to redistribute the wealth amongst all. He thought that wealth and property should all be distributed in accordance with ones capacity and needs. This is because Marx rejected capitalism and felt that it was unjust to the society by having it implemented within the law. He feels that within a capitalist society all law is unjust. This is because it represents the means by which one class oppresses the class or classes below it. Therefore, their view is to redistribute the wealth equally within society regardless of one’s financial status. As illustrated by the Soviet Union of the problems of communism.
Formal justices are the mechanisms put in place to try and support a just society. It would be satisfied by the consistent and impartial application of rules and procedures without questioning the fairness and rightness of the outcome. These mechanisms within the legal status make sure that everyone is given equal treatment; no one is at a disadvantage than the other. The manner of interpreting and applying rules of law and enforcing decisions can be seen as formal justice. Therefore, equality in treatment is preserved.
The Police and Criminal Evidence Act 1984 state the police powers and instructions for how a public authority should carry out their duties creating fairness and consistent acts. For example, when a defendant is being interviewed within a police interview room, whatever activities are carried out within the room are stated to the tape. So, if someone came in showing evidence, it will be stated who came in and what evidence was found. This will occur with all people who are being interviewed. Similarly, if someone had been stopped and searched, the police would have to ensure that they meet the requirements to stop and search. By having these procedures for the public authority to meet, it ensures the fairness within society will be created and maintained. In other words, people would abide by them which will create fairness within society making the outcome correct or right for society.
By allowing individuals access to legal advice and representation, prevents bribery from occurring. In other words, by having someone present at the time of being questioned, the defendant could bribe public authority to acquit them. This then leads to an unfair trial which is not consistent and adherent to the rules. However, if a solicitor was present at the time, and there were recordings of the activities which took place during the room, it would be explicit as to whether bribery was taking place, if so, defendant can be prosecuted.
By allowing the same rules applying to all individuals. The case of R V Thames Magistrates’ Court Ex parte Polemis, illustrates that the defendant was not given enough time to prepare for his defence. This is because he was told the day before that he was due in court the following day. He also did not understand the language, therefore could not turn up in court. This could seem as unfair if the judges were to prosecute him for this.
Lastly, by having the judicial review, the judges are able to review the decisions of politicians and the public officials. They decide whether the politician was within their rights to state or make that decision. However, the disadvantage is that they do not examine the merits of the decision as to what he impact will be on the society. By having a judicial review, it prevents politicians from making their own decisions for their own purposes without taking the interest of society into consideration.
On the other hand substantive justice is the mechanisms that the legal system has in place to provide a just outcome. For example, the judicial precedent. This is when judges treat like cases alike. This moves away from binding precedent like overruling, distinguishing etc. Here, the doctrine of stare decisis is implemented. This is a policy of the courts to abide by the principles set out in previous cases like the Cunningham case for subjectively recklessness. It is also when the decision or answer to a question is answered by the judge from a lower court; it followed through to the rest of the courts.
Another mechanism for substantive justice would be the sentencing. There are various aims of sentencing, but are they used correctly within society and allocated for the correct offences. For example within the summer riots, a women was sent to jail for 5 months for handling stolen goods, when she received then, having slept through the riots in which they were taken. Would this be considered as fair and just if she did not in actual fact steal the goods, or have any relation to it, except for the fact that she was handed over them the following day. Another example of sentencing within the summer riots is when a man was sent for imprisonment for 4 years for posting messages on Facebook encouraging the riots. Would this be considered as fair for the defendant, in other words would he gain anything from being sent to prison? The answer to this would be no, this is because if he had a community sentence, he would know a lot more about his community and therefore able to make a difference. As illustrated by Gilbert, the seriousness of the criminality must be matched with the seriousness of the penalty. Meaning, the type of crime they committed, the sentence should be equivalents and a penalty from which they can learn from their mistakes.
To conclude this, as stated from the above, there are various definitions to justice; hence there is a problem of defining it. To gain perfect justice with any legal system is impossible. However, every legal system tries their utmost best to achieve justice for each individual. Aiming to treat them and achieve a ‘fair’ and ‘just’ solution. This showing that there is a relationship between the two; historically and theoretically.
