The Extent to Which the Law Achieves Justice (OCR A-Level Law): Revision Notes
The Extent to Which the Law Achieves Justice
Introduction
Whether the law successfully achieves justice is a deeply contested question in legal philosophy. Philosophers have debated the meaning of justice since ancient times, and even modern judges disagree about the proper role of law in delivering fair outcomes. In legal disputes, one party typically believes justice has been served while the other does not, highlighting the subjective nature of justice. This note examines different theories of justice, explores how procedural and substantive law attempt to achieve justice, and identifies cases where the legal system has both succeeded and failed in this aim.
The subjective nature of justice means that what appears just to one person or group may appear unjust to another. This fundamental challenge runs throughout legal philosophy and practice, making it essential to understand different theoretical perspectives on what justice means.
Theories of justice
Philosophical thinking about justice has evolved over centuries, with various theorists offering different perspectives on what justice means and how it should be achieved. Understanding these theories helps evaluate whether particular legal rules or decisions achieve just outcomes.
Aristotle
Aristotle's conception of justice centred on distribution and proportionality. He believed that justice required fair distribution of resources and that outcomes should be proportionate to circumstances. This theory remains influential in contemporary thinking about social justice and underpins many human rights principles.
Proportionality is particularly important in human rights law, requiring that any claim or counterclaim must be proportionate and seek to achieve a legitimate human rights aim. This principle was applied in Lindsay v Commissioners of Customs and Excise (2002), where customs officials' practice of confiscating cars as well as smuggled goods was held to be disproportionate and therefore unjust.
Worked Example: Applying Proportionality
In Lindsay v Commissioners of Customs and Excise (2002):
- Situation: Customs officials confiscated both smuggled goods and the vehicles used to transport them
- Application of proportionality: The court assessed whether the confiscation was proportionate to the offence
- Outcome: The practice was held to be disproportionate—the punishment exceeded what was necessary to achieve the legitimate aim of preventing smuggling
- Conclusion: This demonstrates Aristotelian proportionality in modern human rights law
Aquinas
As a natural law thinker, Aquinas developed the concept of justice as fairness. His ideas influenced later theorists including Fuller and Rawls, who built upon the notion that justice involves treating people fairly according to moral principles that transcend human-made law.
Jeremy Bentham
Bentham founded the theory of utilitarianism, later developed by John Stuart Mill. This approach holds that law should aim to achieve the greatest happiness for the greatest number of people. While this creates an overall balance in society, it accepts that individual good may sometimes be sacrificed for the collective benefit.
This utilitarian approach is evident in policy decisions such as R v Brown (1993), where the court prioritised protecting society from corruption over the individuals' right to consent to their chosen activities. The judgment reflected the view that preventing potential harm to the wider community outweighed the defendants' personal autonomy.
Utilitarianism raises concerns about whether it is just to sacrifice individual rights for the majority's benefit. Critics argue this approach can lead to oppression of minorities or vulnerable individuals—a key weakness when evaluating whether utilitarian-inspired laws truly achieve justice.
Karl Marx
Marx took a fundamentally different view, arguing that in capitalist societies all laws are inherently unjust because they perpetuate economic inequality. He believed justice could only be achieved through redistribution of wealth and the transformation of economic structures. This radical perspective influenced later theories about social contracts and distributive justice, including Rawls' work on fairness.
Robert Nozick
Nozick's entitlement theory presents a contrasting view to Marx. He argued that society is just if everyone is entitled to the holdings they possess through legitimate means. However, Nozick acknowledged that this breaks down when people steal, defraud, enslave others, or forcibly prevent fair competition in exchanges. His theory emphasises individual property rights rather than redistribution, placing it in sharp opposition to Marxist thinking.
Evaluation of justice theories
Different theories of justice lead to different conclusions about whether particular legal outcomes are just. Utilitarian thinking prioritises society's interests over the individual, which may be considered unjust when applied to specific cases. Natural law theories emphasise universal moral principles, while entitlement theories focus on individual rights. The period in which these theorists lived provides important context for understanding their arguments—for example, Marx wrote during the Industrial Revolution when economic inequality was stark and visible.
When evaluating legal outcomes, consider which theory of justice best explains or critiques the result. A utilitarian might support a decision that benefits the majority, while a natural law theorist might criticise the same decision for violating fundamental moral principles. Understanding these different perspectives strengthens your analysis.
The extent to which the law achieves justice
Whether legal rules achieve justice is a subjective concept that depends on one's perspective. In most legal disputes, one party will consider that justice has been done while the other wholeheartedly disagrees. Even judges themselves disagree about the scope of their role in achieving justice.
Judicial perspectives on achieving justice
Judges have taken contrasting approaches to their role in delivering justice, revealing fundamental disagreements about the judicial function in a constitutional system.
Lord Denning's activist approach: In his autobiography, The Family Story, Lord Denning expressed the view that:
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.
This perspective suggests judges should actively work to achieve just outcomes, even if this means departing from or developing existing legal rules.
Sir Robert Megarry's legalistic approach: In Tito v Waddell (No. 2) (1977), Sir Robert Megarry VC took an opposing view:
The question is not whether the plaintiffs ought to succeed as a matter of fairness or ethics or morality. I have no jurisdiction to make an award to the plaintiffs 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 plaintiffs' claim on that footing.
This approach emphasises that judges must apply established legal principles rather than making decisions based on personal views of fairness. It reflects a more conservative judicial philosophy that respects the separation of powers and the role of Parliament in making law.
These contrasting judicial philosophies demonstrate fundamental disagreement about whether justice is best achieved through strict application of legal rules or through flexible judicial decision-making. This debate continues to shape modern legal practice and raises questions about the proper limits of judicial power in a democratic society.
Procedural law
Procedural law establishes systems and frameworks designed to ensure justice by guaranteeing that everyone is equal before the law and can receive fair treatment. It creates the mechanisms through which substantive law operates fairly.
Key features of procedural justice
Access to courts: Everyone is entitled to put their case in court. This fundamental principle ensures that all individuals, regardless of status or resources, can seek legal redress.
Financial assistance: Legal aid and other forms of financial support should exist to help people access lawyers and the courts. However, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly restricted legal aid availability, raising questions about whether the law remains genuinely open to all. This demonstrates an ongoing tension between the ideal of equal access and practical resource constraints.
The restriction of legal aid under LASPO 2012 has created what some call a "justice gap"—people who cannot afford lawyers but earn too much to qualify for legal aid. This challenges the principle that everyone should have equal access to justice, regardless of financial means.
Rules of evidence: These rules ensure that material presented in court is reliable and fairly obtained. For example, confession evidence from a defendant intimidated by police will not be admissible.
Worked Example: Oppressive Police Interviews
In R v Miller (1992):
- Facts: Police questioned the suspect 300 times during the interview
- Issue: Was the interview conducted fairly?
- Court's reasoning: The volume and persistence of questioning was held to be oppressive
- Outcome: The confession evidence was inadmissible
- Principle: This demonstrates how procedural rules protect defendants from oppressive police tactics, ensuring confessions are voluntary and reliable
Similarly, in R v Mason (1987), a confession obtained by deceit was wrongly admitted, and the appeal was allowed because confessions obtained through deceit should be rejected.
Evidence must also be obtained through lawful means. In R v B (A-G Ref. No. 3 of 1999) (2000), DNA profile evidence that should have been destroyed under s 64(3B)(b) of the Police and Criminal Evidence Act 1984 could not be admitted in evidence, even though it was relevant to the case.
Even highly probative evidence cannot be admitted if it was obtained unlawfully or unfairly. This principle recognises that the integrity of the justice system depends not just on reaching accurate verdicts, but on ensuring that evidence is gathered in accordance with the rule of law.
Trial by jury: The right to jury trial can ensure justice in individual cases by allowing community representatives to reach verdicts based on fairness rather than strict policy considerations.
Worked Example: Jury Delivering Justice Beyond Strict Law
In R v Ponting (1985):
- Background: A Ministry of Defence civil servant leaked documents showing the government had lied about the sinking of the General Belgrano during the Falklands War
- Charge: Official Secrets Act offence
- Evidence: Strong evidence of the leak
- Legal position: Under strict legal rules, Ponting appeared guilty
- Jury decision: Acquittal
- Significance: This demonstrates how juries can deliver outcomes that reflect broader notions of justice beyond narrow legal rules, recognising that sometimes the public interest in truth outweighs secrecy concerns
Impartiality and absence of bias: Judges, magistrates and juries must not be biased or appear to be biased. This principle is fundamental to natural justice and is expressed in the Latin maxim nemo judex in res sua (no one should be a judge in their own cause).
In R v Bingham JJ ex parte Jowitt (1974), the defendant was convicted for speeding after the chairman of the magistrates chose to believe police evidence over contradictory evidence from the defendant. The Divisional Court quashed the conviction because of bias.
Similarly, in Re Pinochet (1998), Chilean dictator Augusto Pinochet attempted to evade extradition to Spain. One of the House of Lords judges was associated with a charity that had campaigned to bring Pinochet to justice. This created an appearance of bias, compromising the procedural fairness of the proceedings.
The principle of natural justice requires not just actual impartiality, but also the appearance of impartiality. Justice must not only be done, but must be seen to be done. Even if a judge is genuinely impartial, any appearance of bias undermines public confidence in the justice system.
Opportunity to test evidence: Parties must be given reasonable opportunity to test the evidence against them.
In Glynn v Keele University (1971), a student was fined £10 and suspended for nude sunbathing without being given a hearing. This violated procedural justice because he should have been given the opportunity to test the evidence.
In R v Thames Magistrates' Court ex parte Polemis (1974), a Greek sea captain was not given adequate time to prepare his defence to an allegation of polluting docks with oil. He received his summons at 10:30 a.m. and the case was heard at 4 p.m., denying him reasonable opportunity to prepare his case.
The opportunity to test evidence and prepare a defence is not merely a technical requirement—it is essential to ensuring fair outcomes. Without adequate time and information, defendants cannot meaningfully challenge the case against them, fundamentally undermining the fairness of the process.
Corrective justice and appeals: The system provides mechanisms for correcting injustice through appeals, judicial review and the Criminal Cases Review Commission (CCRC). This "right to a second opinion" ensures that errors can be identified and remedied. The CCRC specifically investigates potential miscarriages of justice and refers cases back to the Court of Appeal where appropriate.
Application of substantive law: Within this procedural framework, disputes are resolved by applying substantive legal rules to produce the most just results possible.
Substantive justice
Substantive justice is achieved through the application of legal rules themselves, rather than through procedural mechanisms. The content of legal rules can promote or hinder justice depending on how they are designed and applied.
Examples of substantive justice in criminal law
Defences: Criminal law provides defences that can justify or excuse a defendant's actions, ensuring they are not held liable for conduct that should not be punished. Partial defences to murder ensure defendants shoulder some responsibility while recognising mitigating circumstances that make the full offence inappropriate.
In R v Wilson (1996), the court allowed the defence and distinguished the case from precedent, demonstrating how defences contribute to substantive justice by recognising individual circumstances.
Defences in criminal law reflect important principles of justice: that people should not be punished for involuntary actions, for conduct undertaken in legitimate self-defence, or where special circumstances significantly reduce their culpability. Without these defences, the law would produce manifestly unjust outcomes.
Sentencing: The accused should be treated consistently with their level of fault. Sentencing principles aim to ensure proportionate punishment that reflects both the seriousness of the offence and the offender's culpability.
Examples of substantive justice in civil law
Standards of care: In negligence law, concepts such as the heightened standard of care owed by professionals (compared to ordinary people) help achieve justice by reflecting the different levels of skill and responsibility involved. This ensures that those with special expertise are held to appropriately high standards.
Balancing competing interests: In Miller v Jackson (1977), Lord Justice Cumming-Bruce stated that the court had to "strike a fair balance" between the parties' interests. Damages were awarded instead of an injunction, demonstrating how substantive legal remedies can be tailored to achieve fairness.
Worked Example: Balancing Competing Interests
In Miller v Jackson (1977):
- Situation: Cricket club's activities caused nuisance to neighbouring homeowners
- Competing interests:
- Claimant's right to enjoy property without interference
- Cricket club's right to continue long-established sporting activities
- Court's approach: Rather than granting an injunction (which would have stopped cricket), the court awarded damages
- Reasoning: This struck a fair balance—the homeowners received compensation, but the wider community retained access to cricket facilities
- Principle: Substantive remedies can be tailored to achieve justice by balancing legitimate but conflicting interests
Where rules have failed to achieve justice
Despite efforts to design just legal rules, some aspects of substantive law have been criticised for failing to deliver justice. These failures highlight the ongoing challenge of creating legal rules that achieve justice in all circumstances.
Mandatory life sentences for murder
The mandatory life term for murder allows no judicial flexibility to recognise different levels of seriousness within the offence. All murders, from mercy killings to brutal premeditated attacks, carry the same mandatory sentence.
In R v Canning (2002), the trial judge described his sentence as "a classic example of injustice", highlighting how inflexible sentencing rules can produce unfair outcomes. This demonstrates a fundamental tension between Parliamentary sovereignty (which mandates the sentence) and judicial discretion (which might achieve more nuanced justice in individual cases).
The case of R v Wallace (2018) provides further illustration of concerns about mandatory sentencing and its interaction with individual circumstances of cases.
Joint enterprise liability
The rules on joint enterprise previously exposed people to conviction for the most serious offences on weak legal foundations. In R v Jogee (2016), the Supreme Court corrected a historic legal mistake that had led to unjust convictions. This case demonstrates how substantive legal rules can create injustice even when applied correctly, requiring appellate courts to intervene and reform the law.
The R v Jogee (2016) case is particularly significant because it shows how the law can systematically produce unjust outcomes over many years before being corrected. It raises important questions about how many people may have been wrongly convicted under the previous interpretation of joint enterprise law.
Utilitarian prioritisation of collective over individual
R v Dudley and Stephens (1884) illustrates rejection of utilitarian reasoning in favour of individual justice. Despite the defendants' desperate circumstances, the court refused to allow necessity as a defence to murder. However, the sentence was commuted, reflecting recognition of the defendants' ordeal. This case shows tension between strict legal rules and compassionate outcomes.
Miscarriages of justice
A miscarriage of justice occurs where someone is convicted and punished by the courts for a crime they did not commit. Several notorious cases demonstrate failures in the criminal justice system:
Timothy Evans: Wrongly executed for murders actually committed by serial killer John Christie.
Alan Turing: Convicted of homosexual acts, which were then criminal offences, and subjected to chemical castration. He received a posthumous royal pardon in 2013.
The Birmingham Six: Six men wrongly convicted of pub bombings in Birmingham in 1974, spending 16 years in prison before their convictions were quashed in 1991.
The Guildford Four: Wrongly convicted of IRA pub bombings in Guildford in 1974, spending 15 years in prison before their convictions were overturned in 1989.
The murder of Stephen Lawrence: Initially failed investigation and prosecution, representing a miscarriage of justice for the victim and his family. The case exposed institutional racism in the Metropolitan Police and led to significant reforms.
These cases remain memorable precisely because they are unusual—they represent a tiny minority of the cases passing through the criminal and civil justice systems. Most of the system functions justly and achieves just results most of the time, which satisfies utilitarian perspectives that prioritise the greatest good for the greatest number.
However, these miscarriages remind us that the system is not infallible and that procedural and substantive safeguards remain essential. Each wrongful conviction represents a profound failure of justice for the individual concerned, regardless of how well the system works in other cases.
Key cases regarding law and justice
The following cases illustrate different aspects of how law does or does not achieve justice:
| Case | Facts | Principle of justice |
|---|---|---|
| Lindsay v Commissioners of Customs and Excise (2002) | Customs officials' practice of confiscating cars as well as smuggled goods was held to be disproportionate | Aristotle's concept of proportionality |
| R v Miller (1992) | Police asked 300 questions of the suspect; interview held to be oppressive | Procedural justice – police powers must be exercised fairly |
| R v Ponting (1985) | MOD civil servant charged under Official Secrets Act for leaking documents showing government had lied about sinking of General Belgrano; jury acquitted him | Procedural justice – trial by jury ensures justice in individual cases |
| R v Bingham JJ ex parte Jowitt (1974) | Defendant convicted of speeding based on magistrate choosing to believe police officer over defendant; conviction quashed due to bias | Procedural justice – process must be free from bias |
| Glynn v Keele University (1971) | Student fined and suspended for nude sunbathing without a hearing | Procedural justice – reasonable opportunity to test evidence |
| R v Thames Magistrates' Court ex parte Polemis (1974) | Greek sea captain not given adequate time to prepare defence; summons received at 10:30 a.m., case heard at 4 p.m. | Procedural justice – reasonable opportunity to prepare defence |
| Re Pinochet (1998) | Chilean dictator Augusto Pinochet tried to evade extradition; one House of Lords judge associated with charity campaigning against Pinochet | Procedural justice; natural justice – no suggestion of bias (nemo judex in res sua) |
| R v B (A-G Ref. No. 3 of 1999) (2000) | DNA evidence that should have been destroyed under PACE 1984 could not be admitted | Procedural justice – evidence must be obtained fairly and lawfully |
| R v Mason (1987) | Confession obtained by deceit wrongly admitted; appeal allowed | Procedural justice – evidence must be obtained fairly |
| R v Wilson (1996) | Court allowed defences and distinguished precedents | Procedural justice – defences must be available and precedents can be distinguished |
| Miller v Jackson (1977) | Court had to "strike a fair balance"; damages awarded instead of injunction | Substantive justice – balancing competing interests |
| R v Dudley and Stephens (1884) | Necessity defence rejected but sentence commuted | Utilitarianism rejected; individual justice not sacrificed for majority, though sentence reflected defendants' ordeal |
Exam technique
Linking theory to practice
When answering questions about law and justice, it is essential to link theoretical concepts to practical application. Avoid simply describing theorists' views without demonstrating how they apply to real cases. Always include both theoretical analysis and case examples to support your arguments.
Structure for Strong Answers:
A well-structured answer should:
- Identify the relevant theory or principle of justice
- Explain what the theory means and who developed it
- Apply the theory to specific cases or scenarios
- Evaluate whether the theory successfully explains or critiques the legal outcome
- Consider alternative theoretical perspectives
Evaluating theories of justice
You will be rewarded for evaluating different ideas of justice. For example, you might critique the utilitarian concern for society rather than the individual, or contrast Marx's radical redistribution approach with Nozick's emphasis on entitlement. Consider the strengths and weaknesses of each theory and how they relate to contemporary legal issues.
Applying command words
Analyse: Break down how different elements of procedural or substantive law work together to achieve (or fail to achieve) justice.
Evaluate: Assess the extent to which the law achieves justice, considering different perspectives and providing balanced arguments.
Discuss: Examine different viewpoints on whether particular legal rules or outcomes achieve justice.
Apply: Use theoretical concepts to assess whether justice has been achieved in specific scenarios or cases.
Command Word Guidance:
Pay close attention to command words in exam questions. Each requires a different approach:
- "Analyse" requires you to break down and examine components
- "Evaluate" requires judgement and balanced assessment
- "Discuss" requires exploration of different viewpoints
- "Apply" requires practical application of principles to scenarios
Using the wrong approach for a command word will limit your marks, even if your knowledge is sound.
Remember!
Key Points to Remember:
- Justice is a subjective concept—different parties in legal disputes often disagree about whether justice has been achieved
- Procedural law creates frameworks ensuring equality before the law, including access to courts, fair evidence rules, trial by jury, absence of bias, and appeal mechanisms
- Substantive justice is achieved through the application of legal rules themselves, including defences, proportionate sentencing, and appropriate standards of care
- The law sometimes fails to achieve justice, as seen in inflexible mandatory sentences and historical miscarriages of justice
- While miscarriages of justice are notable, they represent a tiny minority of cases, suggesting the system generally achieves just results
Key Terms:
- Proportionality: Claims must be proportionate and seek to achieve legitimate aims
- Procedural law: Framework ensuring everyone is equal before the law
- Substantive justice: Justice achieved through application of legal rules
- Miscarriage of justice: Conviction and punishment for crimes not committed
- Utilitarianism: Greatest happiness for greatest number of people
- Natural justice: Fundamental fairness including absence of bias (nemo judex in res sua)
Critical Cases:
- Lindsay v Commissioners of Customs and Excise (2002) – proportionality
- R v Ponting (1985) – jury trial achieving justice
- R v Jogee (2016) – correcting historic injustice in joint enterprise law
- Re Pinochet (1998) – natural justice and bias