Economic theories like Marx, Rawls and Nozick calculate the effect of a law of policy in terms of the law the greatest happiness of a greatest number.
Rawls said that the only way to achieve true justice is if we create an ‘original position’. His point being that the people who make the laws have their own agenda, so you can’t achieve true justice.
Robert Nozick thought that if you get wealthy legally and fairly then it should be yours to keep. However, those who do not have any wealth shouldn’t be helped. Its functions should be limited to the basic needs such as protecting the individual against force, theft and fraud. The problem with this theory is that some can not afford training for a good job.
Marx believed that the law is made to protect the middle class and their property from the working class. He thought everyone should be equal.
Utilitarian’s ( Jeremy Bentham and John Stuart Mill) is based on a principle of utility, approving every action that increases human happiness and this approving every action that diminishes it. A law is just if it results in a not gain in happiness even at the expense of minorities.
There are two types of justice. Formal or Procedural Justice which concerns the mechanism by which decisions are made.Concrete or Substantive Justice which is more concerned with the end result.
Strict applications of precedent may lead to an unjust result. FORD (follow, overrule, reverse and distinguish) insures that each case is treated on its own fact. Eg Meritt v Meritt where the court approved the precedent in Balfour v Balfour.
Equity softens the common law, but it is rarely found to have application in the Criminal Law. In High Trees Lord Denning would not allow a claimant to go back on his promise to reduce the tenant;s rent during the war, and he looked at a fair outcome (substantive justice) rather than just following the letter of the law. In Criminal Law judges use the work ‘policy’ not equity and by appealing to policy can do in the criminal law where the rules would dictate that another course should be followed this is seen in R v Wacker.
There are many miscarriages of justice which shows us that justice is hard to achieve and it is important that errors and miscarriages can be put right. For example Sally Clark whose babies died was finally acquitted of their murder as medical evidence had not been discovered and inappropriate conclusions had been drawn.
Many of the reasons for the miscarriages of justice pre-date the Police and Criminal Evidence Act (PACE). It widely recognised that ( PACE) provides safe guards during police questioning by strict Codes of Practice that is published in 38 languages.
Criminal Cases Review Commission was set up in 1995. When miscarriages like Birmingham Six and Guilford Four had raised doubts about the appeal system.
In my opinion, laws and justice will be up to debate and so many different views will clash with the law held. Many people will accept that justice should be the aim of any legal system. Nevertheless, some legal systems exist without any apparent notion of justice. One only has to think of the totalitarian regime in Iraq and Russia under Stalin where law was simply a means of repression not justice.
