Law and Justice

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Law and Justice

The law is a set of standardised procedures and mechanisms used in the enforcement of basic rights and the regulation of society. Sir John Salmond defined law ‘the principles used in the administration of justice’

Justice is more difficult to define than law. Basically, it can be viewed as ‘the principle of fairness’, but this then leads to a discussion of what ‘fairness’ means. This has led to many differing definitions of justice being put forward. There are two main ideas of justice – procedural and substantive.

Procedural justice views something as just if the correct procedures are followed, even if the procedures are not fair to begin with. Supporters of procedural justice say that for there to be justice it is important that everyone is treated in the same way and has the same rights. However, it is sometimes the case that it is not ‘fair’ for everyone to have the same rights. For example, the right to represent yourself is an important right, but is it appropriate in rape cases for the defendant to be able to cross-examine his alleged victim? This example shows that law sometimes has to modify procedural justice in order to achieve real justice.

Another example of a difficulty arising in practice is the case of Dianne Pretty who was in the final stages of motor neurone disease and wanted her husband to help her die to avoid a distressing and undignified death. The European Court of Human Rights found against her and accepted the view that the ban on assisted suicides was just, and that to make an exception for Mrs Pretty would open the floodgates to other cases. Phillip Havers is an articles in The Times argued against the decision of the court on the basis that ‘the ban on assisted suicides in England is indiscriminate, it catches everyone, not only the weak and vulnerable, who it is intended to protect, but also those like Mrs Pretty who neither need nor wish for the law’s protection’. Furthermore, he argues that it is neither necessary nor proportionate to impose a blanket ban. In contract John Keown, arguing in favour of following consistent principles, quotes Dr Johnson who said that ‘laws are made for specific cases, but for men in general’.

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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 ...

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