Introduction
Most people would
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 regimes in Iraq
under Saddam and Russia under Stalin, where the law was simply a means of
repression, not a means of doing justice.
What does
“Justice” mean?
Justice is firmly
embedded in the English Legal System and in the minds of UK subjects.
We see “Justice” in the language of the law, we talk of Royal Courts of
Justice, Lords and Lady Justices of Appeal and magistrates have been
referred to as Justices of the Peace since at least 1361
However, we never
talk of taking cases to justice, but to law, and to some people the courts
do not do justice. A group called “Justice for Fathers” claim that
family law is not just, and the courts deny them and paternal grandparents
justice.
We are driven
therefore to ask if a particular system is just, or if a particular law is
just, or if the outcome of a particular court proceeding is just.
A vexed issue in
criminal law is that by trying to ensure everyone receives a fair trial
some guilty people are acquitted, and some innocent people are convicted.
The law appears incapable of ensuring that this does not happen. This
should not be overstated; the number of miscarriages of justice is, in
fact, a very small percentage of those tried by the courts.
Some judges will
seek to do justice despite arbitrary rules; others see the legal rules as
paramount in order to justice by providing certainty in the law. Lord
Denning said, "My root belief is that the proper role of the judge is
to do justice between the parties before him. If there is any rule of law
which impairs the doing of justice, then it is the province of the judge
to do all he legitimately can to avoid the rule, even to change it, so as
to do justice in the instant case before him." (The Family Story"
(1981)). The primacy of legal rules was stated by Sir Robert
Megarry
VC, "The question is not whether the [claimants] ought to succeed as a
matter of fairness or ethics or morality. I have no jurisdiction to make
an award to the [claimants] just because I reach the conclusion ... that
they have had a raw deal. This is a Court of Law and Equity (using
"equity" in its technical sense), administering justice according to law
and equity, and my duty is to examine the [claimants'] claim on that
footing." (Tito v Waddell (No.2) [1977])
Definitions of Justice
Aristotle taught
that “fairness” is the basis of justice that we find in two forms:
Distributive Justice and Corrective Justice. However, this simply
replaces ‘what is just?’ with what is fair?’
Justice might be
apportioned according to merit; to worth, to need, to status, or according
to entitlement; but whichever criterion we use, subjective facts come into
play. This is the province of policy, which Dworkin concluded was the
role of Parliament to determine and not for the court.
The law is said to
be a means to an end and for substantive justice to exist not only
must the procedures by which the law is applied be seen to be fair but
also the content of the law that is, the social ends to be achieved. The
analysis of substantive justice brings us back to such questions as to
role of law in society and the relationship of law and morality.
Concrete
and substantive justice
Equity softens the
common law, but is rarely found to have application in the criminal law.
In
Central
London Property v High Trees House
[1956] KBD
Denning J would not allow a claimant to go back on his promise to reduce
tenants’ rent during the war, and he looked for a fair outcome,
substantive justice, rather than just following the letter of the law.
In criminal law,
judges use the word “policy”, not equity, and by appealing to “policy” can
do justice in the criminal law where the rules would dictate that another
course should be followed. In R v Wacker [2000]
CA Lord Justice Kay said
“Thus looked at
as a matter of pure public policy, we can see no justification for
concluding that the criminal law should decline to hold a person as
criminally responsible for the death of another simply because the two
were engaged in some joint unlawful activity…”
Perry Wacker had
been responsible for the deaths of 58 Chinese immigrants he carried in the
back of his lorry.
