Another interpretation put forward was “Corrective Justice”. Aristotle believed that if someone or the state suffers, due to the actions of someone else, this argues that there needs to be some correction to make up for it. If the injured party is left as they are, this is not just. For example, in tort, for private/public nuisance claims, an injunction can be given, as in Christy V Davey, to order to D to do/not to do something partially or completely.
Utilitarianism was another approach put forward by Jeremy Bentham and John Stuart Mill. Bentham believed that the more an action increases overall happiness, the more just it is (and vice versa). He believed that if something brings more pleasure than pain, then it is just. An example is the National Institute of Clinical Experts (NICE) legalising which drugs can be offered by the NHS. However, the main criticism about this example is the approach forgets the minority i.e. the people who aren’t having pleasure injustice to minority. This leads to the other criticism with Bentham’s approach; how do you measure happiness and pleasure?
In relation to this, JS Mill built on Bentham’s outlook of utilitarianism, but his idea differed in the respect that he believed the quality of happiness was the most important, rather than the quantity. For example, which is better: one human to be satisfied? Or 100 pigs to be satisfied? He also argued that punishment in itself is evil and should not be an end to evil itself, so punishment can be justified when it brings greater benefit such as community punishment order etc. However, the criticism with this is that many would disagree with this outlook on punishment for serious offences such as murder. For example, murderers have taken life so some would feel it would be just to take theirs.
And finally, another theory put forward was “social justice” which was defined by John Rawls as “The Theory of Justice”. Rawls described Justice as fairness and believed in equality within society and that everyone should share basic rights. For example, he believed that freedom of speech was a basic right and should never be removed. In addition to this, Robert Nozick had a slightly different approach to social justice. He believed in three key principles: justice in acquisition, justice in transfer and justice through rectification. He stated that a truly just world would not need this third principle. It was only mentioned to appreciate that injustice need to be corrected when they occur.
The relationship between law and justice can be assessed by looking at the distinction between “Procedural” law and “substantive” law. Procedural law is the way in which laws are made and operate and the extent to which they achieve justice.
One example of procedural justice is natural law itself. This has two basic principles of justice; hearing has to be impartial, it cannot be bias. For example, in the Pinochet case, Pinochet was the Chilean dictator who was subject to appeal at the House of Lords by the Human Right Organisation Amnesty International who wanted Pinochet extradited to Spain to face human rights charges. However, one of the law lords hearing the case was Lord Hoffman, whose wife was director of A.I, so a new hearing had to be ordered because this was considered bias. The second principle is the fact that the D has to be heard. For example, in Ridge V Baldwin, a chief constable was dismissed without being allowed to give his side of the case. The decision was then overturned, because he should have been given a right to. This then makes the process fair.
The social justice theorist Rawls would have supported natural law. He believed that everyone should be entitles to a right to fair trial, and that this was the important part. On the other hand, utilitarianisms such as Bentham and JS mill would say that the trial was important, but the most important factor would be the outcome from the process, and whether social happiness is achieved.
Another example of procedural justice is legal aid. This is the view that the government gives the Legal Services Commission a budget in order to help people with civil, criminal or depending on rights, to people who do not have the funds. The budget is shrinking, but the demands are necessary. Legal aid is also means tested according to legal entitlement but also to our needs. The Access to Justice Act 1999 established the Legal Services Commission, with responsibility for administering the annual legal aid budget of £2million.
Most law theorists was agree with this as it is given to people that need it, even if they cannot appeal it. Although, it can be argued that Aristotle would be less interested in the system as it is not based on merit.
“Substantive” law refers to the actual laws themselves and the extent in which they achieved justice. An example of this would the mandatory life sentence. This can be given to two types of killers; mercy killers and serial killers. Mercy killers are those that kill with a different motive i.e. out of love such as in R V Inglis (2011) where a mother was found guilty of murder for killing her son who can become brain damaged after an accident. Serial killers are those that kill with a different motive to this, such as Ian Huntley who murder two 10 year old girls for no proven reason. The judge’s main point for the mandatory sentence is to convict those that kill others, whereas in these cases, both these Defendants were given a mandatory life sentence, whereas one was clearly more deserved that the other. This brings up the question of whether these type of outcomes (as in R V Inglis) achieves justice?
Another example of Substantive law duty and breach in negligence. A Duty of care will not be imposed unless it is fair, just and reasonable. In Hill V Chief Constable of West Yorkshire, the House of Lords decided that it would not be fair or just for the police to owe a duty to every potential victim as this could lead to defensive policing. In addition to this, the principle in Nettleship V Western may be seen as rough justice. This established the principle that learners must be compared to non-learners. This can be argued as being unfair on the driver themselves, as they do not possess the same capacity of knowledge a non-learner has. However, it can be counter argued that there is corrective justice present in the respect that society will benefit. Here, Aristole would argue that leaving the victim injured as in Nettleship V Western would be unjust, so the D must correct their action or omission. Utilitarianists such ads Bentham and JS Mill would agree with this as it would result in society being happy as a whole, despite the minority (the driver themselves).
In addition to this, in psychiatric harm, there are specific control mechanisms illustrated in Alcock V Chief Constable of South Yorkshire of there being close ties of love and affecting and the direct perception of sight and sound of the incident, which were designed to limit liability. It can be said that this is unfair, because in this case, loved ones had to see their loved ones crushed to death etc on television from the Hillsborough disaster, but they still couldn’t claim. However, it can be argued that these control mechanisms are put forward to limit liability, thus keeping the floodgates of litigation closed so that not everyone that claims will be able to sue. Utilitarianists view of society is that we should encourage public benefit, which in this case, would be closing the floodgates, whereas on the other hand, Aristotle in respect of corrective justice woul disagree with this due to the fact the victim would not have received anything in return. No would be no correction of loss the have sufferent.
In conclusion to everything discussed, it appears that the legal system aims to promote justice, such as legal aid, and the right to be trialled. However, this is not always successful, as demonstrated in cases such as the mandatory life sentence, and psychiatric harm. Both these example of illustrations where the justice can either be given to one side, whereas the other side suffers. The questioned asked is which side would be more beneficial for society i.e. a utilitarianists view point.
