Both these examples illustrate the connection between law and justice and the difficulty the law has with following procedural justice.
Substantive justice is the idea that something is just if it is inherently ‘fair’. Attempts to define ‘fair’ have led to many differing definitions of justice. Natural law theorists believe that there is a higher order of law and if this is followed, laws are just. If not, then not only is the law not just, but it cannot be considered a law at all and need not be obeyed. St Thomas Aquinas, for example, argued that law is God-given and therefore, if the laws based on Christian teaching are followed, the result will be justice. An unjust law might be contrary to human good or against the higher law derived from God. A law which went against this God-derived law would always be ‘unjust’ and should not be obeyed.
The Human Rights Act would suggest that there is a close connection between the law and the natural law theorists’ concepts of justice, because it incorporates into English law and the European Convention on Human Rights which sets out ‘fundamental’ rights, such as freedom of expression and freedom from torture. Natural law theorists would support the decision in Dianne Pretty’s case because it upholds the sanctity of human life.
An alternative theory is that of utilitarianism, argued by Jeremy Bentham, which measures the justice of a law on the basis of its consequences – if it benefits the majority, then it is just. This means that a law may create social inequalities, and benefit some of the expense of others, but if the gain to the majority exceeds the loss to the minority, then it is just.
Professor Rawls, in a view known as ‘the original position’, developed the idea of a just society being one which a group of rational but mutually disinterested people would unanimously choose to belong to if such a choice were available. He rejected the argument of utilitarianism and argued that inequality can only be just if that inequality is of benefit to all, not merely to the greatest number. He also argued that liberty must be respected and cannot be limited to promote greater happiness.
Utilitarians, and perhaps Professor Rawls, might argue that the law was applied unjustly in Mrs Pretty’s case because she was disadvantaged and yet no one else benefited. Supporters of natural law, on the other hand, would argue that the sanctity of life is a fundamental principle, which cannot be compromised. It cannot be just to go against the ‘higher law’ and therefore the decision in Mrs Pretty’s case was just.
The whole issue of euthanasia illustrates the problem of defining clearly the connection between law and justice. The law has somehow to find a path which represents a consensus, but this is difficult when there are different ideas about what is just in a particular situation. Is it just to uphold a fundamental principle like the sanctity of life or is it just to allow someone to choose death if they want to?
The connection between law and justice can be further examined by looking at the law of intoxication. In applying this defence the law makes a distinction between specific and basic level offences. This seems illogical because surely if you are too intoxicated to be capable of intention, then you are also incapable of subjective recklessness. Is it just to insist that for a person to be convicted of an offence, they must have mens rea, and yet to allow a person to be convicted when they are so intoxicated that they cannot form any means rea? However, it would arguably not be just to allow this defence for all offences as this would mean that people who committed acts of violence when drunk would be perceived to be getting away with something for which a sober person would be convicted. There is also the issue of whether the victim would feel that justice had been done. One solution might be to deal with each case on its own merits and leave it to the common sense of the jury. But this in turn might raise the issue that defendants are not being treated equally, which would be against procedural justice.
In conclusion, it is clear that although some laws do not appear to be connected with ideas of justice, e.g. which side of the road we drive on, the law in general is closely connected with justice. Laws may become unenforceable if they go against prevailing views I what is just and it must be a fundamental principle of a democratic society that laws are based on ideas of justice. At the same time it is clear that what may seem just to utilitarians might not appear just to supporters of natural law.