C. H. Perelman set out six possible meanings of justice, based on different personal perspectives:
To each according to his works – rewards are based on contribution.
To each according to his needs – people receive what they need.
To each according to his merits – people get what they deserve.
To each according to his rank – people may enjoy privileges according to status.
To each according to hs legal entitlement – people receive what the law says they should.
To each equally – all people receive the same.
Perelman subscribed to the theory of formal justice. He believed that once the type of justice a society subscribed to could be identified, then all individuals should be treated in the same way.
Many believe that justice can be either formal or substantial. Formal justice is concerned with equal treatment with what has been laid down in previous decisions. Substantial justice is concerned with whether the actual rules are just are not.
In the past, many theories of justice have been identified. Aristotle believed that just laws are those which allow individuals to fulfil themselves in society. He distinguished between distributive justice, concerning the allocation of assets where the aim of justice is to achieve proportion, and corrective justice, concerning wrongdoing and where the judge must try to assess the damage done and try to restore equality.
Natural law theorists believe that all law comes from a higher source, which is superior to man made law and is based on moral rules. Aristotle believed this source could be nature whereas St Aquinas believed it was God. Some natural law theorists even believe it’s permissible to break laws if they do not conform with moral rules. St Aquinas believed that laws went against the public and had no legitimacy, however he would not agree with breaking laws which would cause public disruption, as he believed this would have been against the will of God.
Positivists believe that providing a law is made according to the correct procedures, it should be followed whether or not it conflicts with morality. Kelsen believed that law and morality are entirely different concepts. He believed justice was an expression of individual preferences and values and that it was just not scientifically possible to define justice.
Utilitarians assess the justice of rules by looking at their consequences. The philosophy was developed during the nineteenth century, mostly from the writings of Bentham and Mill. They believe that just rules are those which have a positive result, for the majority of the people. The obvious defect is that the greatest good migh not always reflect what is in everybody’s interest, and it sacrifices the interests of the individual for the benefit of the majority.
Economic analysts look at the effects of laws or policies on people in economical terms. Some will believe in the greatest good for the greatest number, e.g. if an NHS doctor has a patient requiring a life saving operation costing £100,000, and there are ten patients requiring minor operations costing £10,000 each, then it is in the best interests of the greatest number to spend that money on 10 people rather than one. Others may see it as being fairer to consider the economic and property rights of the individual more carefully. Karl Marx believed that capitalism was unjust, arguing that the cost of protecting the individual was the social interests of the many. Robert Nozick believed that the state should have the minimum possible right to interfere in the affairs of individuals, and they ought to be more concerned with basic needs.
When one wants to consider the extent to which justice is achieved in the application of rules, it is important to look at formal justice and substantial justice separately.
In terms of formal justice, looking at equal access to the law, even a person in a persistant vegetative state had his interests represented by an official solicitor in Bland.
But in civil law, the law can often favour the wealthier party, as they are able to drag out proceedings for a long time.
When considering the rules of natural justice and the rules of evidence, it must be ensured that trials are entirely fair, and that both parties have had equal opportunities to put their cases forward, using relevant evidence which has been obtained fairly.
In terms of substantial justice, mistakes have been rectified by the introduction of such things as the practice statement. It is important that the law is allowed to change its mind, to a certain extent, as the opinion of society develops and some ideas go from right to wrong. The practice statement has also given judges in the House of Lords to avoid awkward precedents, as in Merritt v Merritt where the court avoid the precedent from Balfour v Balfour.
One of the most important factors is the conscience of the jury. Sometimes the decision of the jury will almost go against the evidence given in order to reach a decision which they consider to be just.
It is important for judges to remember that no two crimes are alike in the proportionality of sentencing. They must find the right punishment to fit the crime and the person who committed it.
The judge must also try to balance conflicting interests as best they can.
