LAW AND JUSTICEINTRODUCTION TO LAW 1 (LAW 012)

WHAT IS JUSTICE TO YOU????HOW YO EVALUATE JUSTICE????

WHAT IS JUSTICE??PLATO• Microcosm of the just man is a reflection of the pattern of the just society.• Justice to him is by depicting what a just society.• Every person is inherently adapted to some specific function and if he departs from that function he is guilty for injustice.• Justice discounted by pain and dishonour is more advantageous than injustice supplemented by the rewards of justice.ARISTOTLE• The act refraining from pleonexia (gain something for advantage for oneself, deny other rights and property).

HAMMURABI • Declares that justice is to appear in the land by destroying the evil and the wicked so that the strong might not oppress the weak.BENTHAM• Maximum happiness of maximum number of people.H.L.A. HART • Justice as a shared concept i.e. everybody wants justice seen and done.

CURZON • Treats justice as an impartial resolution of disputes arising from conflicting claims by not favoring one from another, not discriminating, bias and prejudice.ROSS• Justice is the correct application of a law as opposed to arbitrariness; by making decision based on rule and law of evidence and trial, not by mere personal suspicion or opinion.

DENNIS LLOYD (1964)• Justice being linked with equality of treatment and it is undoubtedly owes much to the association of justice with legal proceeding.• Law supposed to be applied equally in all situation and to all person without fear or favour - application of law without discrimination – best embodiment of justice.• BUT justice cannot simply mean that we can treat everyone alike regardless of individual differences.

JUSTICE IN ISLAM• Place something in right place, equal treatment.• ‘To render justice ranks as most noble acts of devotion next to belief in Allah; it is the greatest of all duties entrusted to the Prophets..’ (Al-Saraksi)• We sent our Messengers with clear signs and sent down with them the Book and the measure in order to establish justice among people (Al-Hadid 57:25)• Allah demands judges to do justice to their friend and foes alike- (4:41-35)• To man in general, He spoke to his messenger in these terms:“O my servants, I have forbidden injustice on Myself and forbade it also to you. So avoid being unjust to one another.”

PRINCIPLE OF JUSTICE• According to John Rawls there are 5 principles of justice namely:– Generality – belong to all– Universality – gazetted – Publicity – make it known to the public– Adjudicatory – decide competing interest– Finality – court must decided the cases• Eg. In deciding a case, the judge must apply the similar legal principle for similar cases, irregardless of place and time. (universal). The decision has to be made public i.e. no secrecy and finalized (consistent and no unwanted changes).

CLASSIFICATION OF JUSTICE

CLASSIFICATION OF JUSTICEa) Roscoe Pound had divided justice into two categories:(i) substantive justice(ii) procedural justiceSubstantive Justice• The aim is to ensure that the law has been, and will be made justly. • The legislator will ensure that laws promulgated uphold the idea of justice.• Thus, it is concerned with the body of law and its content (substance). People’s legitimate claims and expectations will be reflected through substantive justice.

• The law that will be made must have these expectations before it can be regarded as a just law:(a) Security of person from intentional aggression(b) Security of possession of property under the existing social order (c) Good faith in transactions(d) Due care not to cause unreasonable risk of injury upon others(e) Control of dangerous things(f) Employment security(g) The absorption by society of risk of misfortune to individual(h) Safety of the state(i) Social welfare and equality(j) In line with tradition, morality and convenient.

• Pound suggested that every society has certain basic assumption upon which its ordering rests, through for most of the time they may be implicit rather than expressly formulated. • This assumption may be called as jural postulates of the legal system of that society. • Pound has mentioned five jural postulates as follows:a)civilised society men must be able to assume that others will commit no intentional aggression upon them.b)civilised society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use

c) civilised society men must be able to assume that those with whom they deal as a member of the society will act in good faithd) civilised society men must be able to assume that those who engage in some course of conduct will act with due care not to cast an unreasonable risk of injury upon others.e) civilised society men must be able to assume that others who maintain things or employ agencies, harmless in the sphere of their use but harmful in their normal action elsewhere.

Procedural Justice• Formal procedures and formality used to make decisions.• It is a psychological concept i.e. people’s perception of the idea of fairness of procedures used in making decisions. • No one should be above the law and those who administer the law should do so without prejudice.• Procedural justice is the technical part of the law which provides rules, principles, guidelines on how to apply the substantive law.

• The Judiciary and Enforcers will ensure that laws are carried out in accordance with fair and proper procedures.• Its main aims are on the need to be accurate in carrying out the law and to avoid abuse of power because procedures come in a set of standard. Eg. Criminal Procedure Code, Rules of High Court, Subordinate Courts Rules.

CLASSIFICATION OF JUSTICE

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b) Aristotle had divided justice into two categories:(i) Distributive justice(ii) Corrective justiceDistributive justice• It is the duty of the State to distribute resources among its people.• One of the justice theory that which emphasize on the fairness of outcome allocation (income, wealth, job, opportunities, welfare).• Perceived fairness of how rewards and costs are shared by (distributed across) group members

• In modern societies, the application of distributive theory can be expanded into the business organisation , employment benefit, policy position etc. • Distributive justice can occur whether on economic or social exchanges (Social norms) – if you help someone in need, they should reciprocate in some way by acknowledging your help and helping you when you are in need - the fairness of interpersonal treatment.

Corrective Justice• It is the duty of the Court to maintain fairness in the distribution process and provide remedies for the injured party/victim.

Eg. Restitution, reparation : sentencing the guilty party to prison for their wrongdoing.

AIM OF JUSTICE

JUSTICE AND EQUALITY Justice as equality means that all people should be treated equally unless there is some significant differences between their cases.Thus, justice and equality require rules to set out how classes of people should be treated. E.g:-1. All murderers will be hung2. All citizens should be given right to vote.3. All children should be given proper education.4. Insane adult can plead the defence of unsoundness of mind in criminal case.5. A contract entered by minor is void.

• To ensure equality, the doctrine of stare decisis (judicial precedent) is followed in the courtroom.i.e. similar cases will apply similar legal principles to ensure consistency and equality in decisions.• Justice and equality require rules, setting out how categories or classes of people should be treated.• Article 8 Federal Constitution :“All are equal before the law and entitled to equal protection. No discrimination against citizen on the grounds of race, religion, gender, place of birth etc.”

JUSTICE AS DESERT It means people ought to get what they justly deserved, positively or negatively.Mill states that every person must obtain that which he deserves and must not be given anything including punishment which a person does not deserve.E.g. :The principle of retaliation (Qisas) in Islam.It is the right of heirs of the murder victim to demand for the execution of the murderer. Surah Al-Baqarah:178 … “free for free, slave for slave..”Bible Exodus, Chapter 24 “an eye for an eye, a tooth for a tooth”.

JUSTICE AS MORAL ENTITLEMENT • The theory of justice as moral or natural entitlement was introduced by Aristotle.• A just system of law is one which distribute ‘good things’ so that good things are in the hands of those who:(i) are entitled to receive;(ii) have the best claim; or(iii) have rights over the good thingsEg. The rich giving out to the poor.• Thus, it concerns with everything that is morally right and good.

LAW AND JUSTICE

Law & Justice Synonymous• Aristotle – ‘Justice exists only between men whose mutual relations are governed by law and law exists for men between whom there is injustice.• Court of law equals to administration of justice• Using law to uphold justice – courts• Law is considered as the best vehicle to uphold justice.• However, law and justice are not the same.

Eg. Botak has been charged with murdering his girlfriend under s.302 of Penal Code. Prosecution managed to submit the following evidences:-i. Botak thumbprint was found on the murder weapon ; i.e. the knife used to stab her girlfriend.ii.CCTV showing he was rushing out from the crime scene on the day of the murder.iii.Bloodstain found in his car and proved to be the victim’s blood.There was also motive because Botak was rejected by the victim.30

Law Maybe Just Or Unjust• HLA Hart – ‘we think and talk of justice according to law and yet also of justice and injustice of laws’ (The Concept of Law)• Discriminatory law – separate man and woman, detention without trial.• Hart – all claims must be considered even two competing alternatives, law may defend which is public good or common good• Aquinas – 2 ways of unjust lawContrary to human goodOpposed divine rules

• Finnis – 4 types of injusticeImproperly used of authorityUltra-vires act / decisionAuthority not perform according to lawUnjust distributionDoes it deals with morality??

Justice according to law• Hart – question of justice involve 2 levels:– All the level of law itself when we question its justness – is the law just?– At the level of its application, whether law properly applied or not?• Kelsen – justice conformity to positive law• Mill – right under law must be respected, violation unjustice• RH Hickling – it’s really naive to consider law as just, efficient, infallible

• Justice is achieved by following the rules and the procedures involved.• Though we cannot apply the same judgment in every cases because of its different facts, but we must treat every case in the same way using the same rules and procedures of hearing and taking evidence.

ACHIEVING JUSTICE

PRINCIPLE OF NATURAL JUSTICE• Natural justice is procedural safeguard against improper exercise of power by a public authority. In the modern era of welfare states the administration plays a pervasive role and enjoys drastic powers to interfere with the rights of the person and property of individuals.• NJ has two main components:(i) the rule of hearing or audi alteram partem, i.e. the rule that no one is to be condemned unheard; and(ii) the rule against bias i.e. nemo judex in causa sua, meaning that no one may be a judge in his own cause.

AUDI ALTERAM PARTEMThe rule requiring fair hearing ( audi alteram partem) has two important components:(a) Notice •before initiating adjudication proceedings, the party concerned should be given notice of the case against him to enable him to defend himself•Notice is regarded as sine qua non (condition precedent) of the right of hearing

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(b) Hearing • Article 135(2) of the Federal Constitution lays down that no public servant shall be dismissed or reduced in rank without being given “a reasonable opportunity of being heard”• Reasonable opportunity of being heard includes the following elements:(i) the adjudicating authority should disclose all information, evidence or material which the authority wishes to use against the individual concern in arriving at its decision;(ii) the authority should receive the evidence and all relevant material which the party concerned may wish to produce before in its defence;

(iii) the authority should give to the individual concerned an opportunity to rebut the material against him;(iv) the adjudicator must hear both sides. He must not hear only one side and in the absence of the other side.

NEMO JUDEX IN CAUSA SUA• The adjudicator should be impartial and neutral and be in a position to apply his mind objectively to the issue he has to decide• The principle that bias disqualifies an individual from acting as an adjudicator flows from two fundamental maxims: a man should not be a judge in his own cause justice must not only be done but be seen to be done.

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Rule of Law• Mean in achieving justice.Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." • The concept of the rule of law may refers to as the government of law, not men.• No one is above the law.• To make a rule of law as reality we have developed institutions and procedures. These institutions and procedures have contributed to the definition of what makes up the rule of law and what is necessary to achieve it.

• Common criteria include: a) a formally independent and impartial judiciary; b) laws that are public; c) the absence of laws that apply only to particular individuals or classes;d) the absence of retroactive laws; e) provisions for judicial review of government action f) access to legal remedy.• It is the foundation for the development of peaceful, equitable and prosperous societies.

Problem access justice (Zander)Use of lawyersLegal aid schemeFinancial assistance to get lawyersAlternative legal service – use of Alternative dispute resolutions (ADR) – arbitration, mediationDefect in getting justice (Fox & Bell)• Remedial defects• Locations of lawyers• Psychological barriers• Ignore of rights• Background of lawyers• Community issues• Control of legal service