Law And Justice: Jurisprudence

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Law And Justice: Jurisprudence

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Law And Justice: Jurisprudence

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Question:
Discuss about the Law and Justice for Jurisprudence.

Answer:
Introduction

Law has been described as “a body of principles that are recognized and applied by the State while administering justice”. However, much debate has been going on as to what makes a particular rule the law. According to the natural law theorists, it has been claimed that a law can be considered as valid only if it conforms to a high moral basis. On the other hand, positivists like Hart are of the opinion that if a law has been made properly, it is always valid and therefore it should be obeyed by the people regardless of its content. On the other hand, as a concept, justice can be defined simply as equality of treatment and fairness. Although it appears to be relatively simple, it is worth mentioning that the meaning of justice is significantly subjective. Therefore, what is justice for one person can be considered as total injustice by the other person.[1] Therefore, a number of theorists have tried to define the term “justice” and in this regard they have also expressed their views about justice can best be achieved.[2]

In the present essay, the relationship that exists between the law and justice has been explored. Distributive justice is the term that is related with the allocation of wealth, rights and responsibilities in the society. It has been suggested by Aristotle that these amenities need to be distributed on the grounds of merit. Therefore, those who have contributed the most are also the worthiest and as a result, they should receive the most. In this way, according to Aristotle, justice is proportionality.[3] On the other hand, if the resources are allocated on the basis of need, it would be unjust. The reason is that in such a case even the laziest person will also receive the same benefits as would be received by the hard-working people. An example of this can be given in the form of the present state pension scheme. This is in tune with the theory of distributive justice of Aristotle. Therefore, the persons who have contributed for 30 years receive a pension from the State.[4]
This can be described as a reward that is commensurate with the contribution made by them. On the other hand, the persons who have worked for a shorter period, for example for 20 years, are provided a smaller amount due to the reason that their contribution was also smaller. Therefore, the persons who prescribed to the theory of Aristotle would consider that the pension scheme was just and the people were receiving their about that is commensurate with their contribution. However, the significant issue present, in case of Aristotle’s theory is that the theory fails to account for the persons who cannot contribute as a result of their inability to work, for example, the disabled people. The government faced this issue when it introduced the personal independence payments, which replaced the disability allowance and were provided to only those persons who could not work instead of the persons who were too lazy to work. This would be considered as just by Aristotle, because the persons who are getting better off working should contribute to the society.[5]
But as compared to Aristotle, it was the belief of Karl Marx that wealth, rights and responsibilities need to be designated on the basis of the needy instead of merit. He was of the opinion that amenities need to be allocated on the basis of the maxim, “from each according to his ability, to each according to his need”. In this way, this maxim refers to the idea that each person should receive what he or she needs, regardless of the contribution made by such a person. For example, in case of NHS, the application of this theory can be seen. In this case, the persons who are need of treatment are provided the same, irrespective of the fact how much they have contributed or paid for it. However, this is in conflict with the fury of Aristotle. The reason is that in this case, the persons who made the least contribution to society would be divided and this cannot be considered as justice.[6] In the same way, another issue that is present in case of the theory of Marx is that in such a case, there will be no incentive to work left for the people. Therefore, if everyone is going to receive the same rewards, regardless of the contribution made by them, then what is the need for a person to work hard?
In this way the overall criticism raised by distributive justice is related with the lack of agreement that exists between these two theories. It is not possible to define what is just distribution when these theories don’t agree with each other regarding who should receive how much reward?

On the other hand, corrective justice depends on the principle that wrongs need to be corrected by using fair remedy or punishment. Under English law, this has been achieved by the use of sanctions in criminal law and providing remedies under the civil law.[7] For example, in case of civil law, a fair remedy that can be granted in case of nuisance would be an injunction. This ensures that the wrongdoing is stopped and in this way it is a just remedy.[8] However, issues are also present with corrective justice due to the reason that it can be restrictive, and trying to provide retribution. For example, in case of the life sentence provided for murder, it relies on biological principle of corrective justice according to which “a life or the life”. But it does not allow for differentiation between the motives of compassion and evil.[9]
Another alternative theory of justice is that of Utilitarianism. The purpose behind this theory is to increase human happiness by increasing pleasure and at the same time, diminishing pain. For the Utilitarians, justice is related with the promotion of the “greatest happiness for the greatest number of people.” In this case, the sum of human happiness is examined by numerical means and the happiness of each person is equal in value. However, Kant did not agree with the Utilitarian ideal.[10] According to him, an act is more significant than the consequences. Therefore, he states that if the act is wrong, then it is not significant how much happiness has been produced as a result of such an act. An example of the conflict that exists between the reasoning of Utilitarians and Kant is related with torture. Therefore, according to the Utilitarians, culture can be considered as acceptable if it is for the benefit of the majority. On the other hand, according to Kantians, torture can never be permitted.
Social justice is also another type of justice. The hypothetical theory of social justice was created by Rawls. He stated that “a veil of ignorance” was off the significance. According to Rawls, if nobody was aware of their place in the society, then they may want a set of inalienable rights, as well as the implementation of universal freedoms. These freedoms would include the freedom to speech and the right to assembly. According to Rawls, theory, it was stated that people may be looking for a less rigid social structure. Therefore every person will have the same opportunities and as a result, the success of each person will rely on the marriage alone instead of the socio-economic status of the person. However the main criticism the theory propounded by Rawls is that it is purely hypothetical.[11] As it will be impossible to start a society from zero, therefore it is just impossible to implement the theory of justice propounded by Rawls. There are many experts who do not agree with Rawls theory. According to these opponents, we need to work with the society that is already present and similarly the state should not be allowed to interfere in the redistribution of wealth that has been legitimately acquired by the persons. These experts have also argued that the state should not be allowed to interfere in the private lives of the people unless they had done something wrong.[12] Therefore, according to this idea of having a minimal state, the fact can be disregarded that there are certain persons who need the intervention of the society. An example in this regard can be given of the persons who are surviving on disability benefits.[13] Therefore, if the state fails to assist these people, they will not be in a position to support themselves. However, this is contrary to the theory of justice propounded by Karl Marx as in such a case the people will not be receiving what is needed by them.
All the theories that have been discussed above need to be applied to the issues presented in procedural and substantive law. In this context, procedure law can be described as the law denoting the procedures and methods that are used for the purpose of enforcing rights and duties.

When an offender is being sentenced by the judges, there are several factors that need to be taken into consideration. These factors include the purpose of sentencing, the crime and also the presence of any mitigating or aggravating factors. In view of these considerations, it is necessary that the sentence given needs to be just. In his theory, Aristotle has talked about the scales of justice. He had stated that the gains and losses of the parties need to be equaled out so that the offender does not benefit from the crime and the victim is not required to suffer a loss. In the process of sentencing, this should be clearly reflected. The result is that in case of less serious crimes, less serious punishment is given and vice versa.

The rights and duties are created, defined and regulated by the substantive law. Similarly, the sentencing practices that are adopted by the judges are generally regulated by the principle of proportionality. Therefore, the serious the crime, the harsher is the sanction imposed by the court. However, this is not true in case of all the crimes. For example, in case of murder, it is mandatory for the court to award life sentence. Irrespective of the motive, a life sentence is given to all the murderers. Therefore, by describing a minimum sentence, there is no scope for proportionality and as a result it may lead to harsh decisions.[14] While those believing in the theory of corrective justice may claim that this is fair, and the persons who have killed another person deserve to have their life taken from them.[15] However this sentence cannot be considered as just in case of mercy killers, for example. Therefore, it needs to be mentioned that the law for murder does not distinguish between the murder that has been committed for malevolent reasons and the murderers that were motivated by familial love. However, it still appears to be unjust that someone who was killed another person due to compassion will also be given the same sentence as is the case of serial killers. But in this case, it can be said that the act of murder is wrong, regardless of the motives and as a result, it should be punished accordingly.
Therefore, it can be concluded that the basic purpose of law is to promote justice. But there can be a number of cases in which it has been shown that this objective has not been effectively achieved. After exploring several different theories of justice, it becomes clear that the idea is subjective. Therefore, for one person, justice could be related with achieving individual freedoms, at the same time for another person, justice can be achieved if the majority is happy. As a result of this variation, it can be said that perhaps justice cannot be achieved consistently. It is natural for one party to feel that the outcome of the case is not just. However, the best that can be achieved by the law is that the people should feel that fair and impartial trial are within their reach.

Bibliography
Bayles D Michael (1992 ) Hart’s Legal Philosophy- An Examination, London, Dordrecht, Boston: Kluwer Academic Publishers
Bodenheimer, Edgar (1974) Jurisprudence – The Philosophy and the Method of Law, New Delhi: Universal Law Publishing Co Pvt Ltd
Bodenheimer, Edgar (1974) Jurisprudence – The Philosophy and the Method of Law, New Delhi: Universal Law Publishing Co Pvt Ltd
Carl, W., Frege’s Theory of Sense and Reference: Its Origins and Scope (New York: Cambridge University Press, 1994
Coffa, J. A., The Semantic Tradition From Kant to Carnap: To the Vienna Station (New York: Cambridge University Press, 1991
Dhyani, SN (2004) Fundamental of Jurisprudence, Allahabad: Central Law Agency
Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd
Dummett, M., ‘Platonism’, in Michael Dummett (ed.), Truth and Other Enigmas (London: Duckworth, 1978
Finch, John D (1974) Introduction to Legal Theory, (Second Ed – First Indian Reprint) New Delhi: Universal Law Publishing Co Pvt Ltd
Fuller, Lon L (1969) The Morality of Law, Second Ed, Indian Reprint 2004, New Delhi: Universal Law Publishing Co Pvt Ltd
Hart, H., The Concept of Law (2 ed.) (Oxford: Clarendon, 1994)
Hart, HLA (1961) Concept of Law Oxford: Clarendon Press
Hart, HLA (1963) Law Liberty and Morally Stanford: Stanford University Press
Hart, HLA (1968) Punishment and Responsibility: Essays in the Philosophy of Law, Oxford: Clarendon Press
Hart, HLA (1983) Essays in Jurisprudence and Philosophy

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