Law as an instrument of justice

What is law?

•The word "law" has several meanings, but one of the most basic ideas behind it is that of a rule, or a system of rules, that applies to everyone, or at least to everyone within a certain category. Traffic signals, for instance, normally must be obeyed by all drivers

•We can define law as series of rules and tell the difference between right and wrong .But such definitions might be largely insufficient .

•we need to learn to distinguish between conduct enjoyed by law and conduct that is compelled by force .

•Interrelationship between law and morality needs to be discovered

•Nature of law

•Law as a dictate of  reason .theory of natural law

•Theory of right reason .for instance “all justification can be reasonable but not all reasons can be justified”

•Nature has formed the basis of natural law theories such as :law by reason and common sense.

•Morality and” what law ought to be” that is the principle of justice constitute the natural law.

•Purpose of law: justice

•law is  the command of sovereign .that is formal aspects of legal rules and legal system. but law is also an instrument of the society. That is law is not only made to govern the society but it is the society uses law as an instrument to rule over them. What law should achieve ?and what purpose does it have?

•One of the answer is “justice”. justice is the goal or objective of law.

•Aquinas “an unjust law is no law”. synonyms with morality and dwells upon “what law should be?”

•Salmond “law is those principles applied by the state in the administration of justice”.

 

Justice

•Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity, along with the punishment of the breach of said ethics

•Justice is interpreted by law as “what ought to be?”

•Fair and independent investigation can secure justice as it ought to be.

•Justice operates in two different level

•Distributive justice-it works to enforce fair division of social benefits and burdens among the members of the community .thus working to create and equilibrium among the members of the society.

•Right to vote is the most important democratic right and  its fair  distribution is needed for distributive justice. “each should count for one and no one for more than one”

•Thus the concept of adult franchise was developed in order to ensure this very distributive justice.

•Burden of a society must be shared by all fairness. eg taxation.

  •Corrective justice: when the balance is upset corrective measures helps to ensure justice. If x deprives y of his right to vote then the balance is upset because y is deprived of  a right that is enjoyed by all.

•Then y has to be compensated in order to deliver justice. this can be penalty sanctioning, fine, punishment.

•Justice always comes with the negative notion-injustice or unjust.

•Giving punishment to some  so that the rest can enjoy their liberty is  actually justice .

•Law as an instrument

•To deliver justice to the society by techniques of social engineering, social control and progress.

•To create security, peace and order, harmony in the society by distribution of justice to all.

•To create a welfare state of morality and ethics.

•Social engineering.

•Social and economic inequalities are to be arranged so that they are both to the greatest benefit of the least advantaged, consistent with the  principle of justice and attached to offices and positions open to all under conditions of fair equality of opportunity.

•Law as a species of social engineering, whose function it is to maximize the fulfillment of the interests of the community and its members and to promote the smooth running of the machinery of the society.

•But what interests there are in a society and which of these are wrongs and which should be, the subject of legal recognition  are questions partly for sociology, partly for law and partly for ethics.

•These interests then have to be  guided by ethics and governed by law in order to deliver justice to the many.

 

Social control

•Social mechanisms that regulate individual and group behavior to follow a certain rules of a given society or a social group.

•Law seeks to secure justice, to resolve social conflicts, protect interests , control social relations and smoothen the means of social exchange.

•Law also seeks to integrate people by various techniques.

•Social control can be achieved by penalty, sanctions, ADR. 

 

Civil justice and criminal justice 

•Civil wrong are private wrong

•Crime is public wrong

•Civil wrong are violation of private rights belonging to a person

•Crimes are violations of public duties which affect the whole community

•Both are categorically administered by the courts with different sets of rule

•Both are followed by sanctions, penalty and compensation

•This helps to ensure restorative, reparative and natural justice, social justice.

 

Social justice

•Legal right of every individual must be equal.

•All are equal before the law

•Judges should meet out justice without any fear and distinction between high and low, rich and poor etc

•Distribution of advantages and disadvantages in a society.

•Fair sharing of resources available and protection of the interests of an individual or a society will help to ensure social justice

 

Economic justice 

•Principles of participation, distribution, harmony are the three pillars of economic justice

•A balance needs to be struck to achieve social justice that encompasses economic justice.

•Its purpose is to free each person to engage creatively to pursue their  interests

•It achieves social order and forms set of moral principles.

 

Notion of law

•It represents basic conflict between two different needs, the need for uniformity and the need for flexibility

–Uniformity: by which rules are fixed and generalized to all. This helps to ensure certainty, stability and security in the society.

–Flexibility :one rule cannot be applied in every possible case. A certain discretion is needed. It enables law to adapt itself for social change.

–Society alters, so do the needs and the interest. So does the law. Law is capable of adaptation whether by legislation or judicial development allowing for the peaceful change

•Institutionalized  law enforcement is needed for  administration of justice.

•In a just system of law, on one hand we find rules aiming to procure an equality of distribution ,whereas  the other hand we find specific rules relating to corrective justice.

•All the three organs of government, legislative, executive, judiciary have a common purpose to serve and promote justice to the society at large.

•This reconciliation of stability and flexibility in order to deliver justice is permanent  problem for any legal systems.

•Thus law should always be able to fulfill its main objective that is to deliver justice in its right virtue.