JUSTICE

1. JUSTICE

2. DEFINITIONS • According to Justinian; Justice is the virtue which results in each person receiving his due, by producing excellent, definite and good result. • For Curzon; Justice is the impartial resolution of disputes arising from conflicting claims by not favoring one from another, not discriminating, bias or prejudice. • For Ross; Justice is the correct application of law, as opposed to arbitrariness by making decision based on rule and law of evidence and trial, not by mere personal suspicion or opinion. • Hammurabi through his Code of Hammurabi; Justice is to appear in the land, by destroying the evil so that the strong might not oppress the weak.

3. PRINCIPLES OF JUSTICE John Rawls outlines 5 formal conditions, of which the principles of justice could be founded.

4. Concept of justice • Plato Justice consists in a harmonious relation between the various parts of the social organism (society) • Aristotle Justice consists in a sort of equality and demands that the things of this world would be distributed and that such distribution be maintained by law

5. Relationship Between Law & Justice • H.L.A Hart, The Concept of Law page 158 • Justice without law is total lawlessness & arbitrariness • The connection of justice with law begins to emerge if one observes that most of the criticisms made in terms of law • The word of ‘law’ and ‘justice’ may often be used interchangeably. e.g. calling the ‘court of law’ as the ‘court of justice’ • The idea of justice as synonymous with law is that the central concerned of justice is that ensuring that people receive what they are entitled to and what they deserved and this appears to be the central concern of the court • Law is not the only source of justice, but law is always treated as the best vehicle to uphold justice.

6. Substantive Justice The content of rule and measures it against a ‘higher’ or more fundamental set of principles such as: Fairness Justice Morality

7. Fairness • Meaning : Behaviour that is fair and reasonable. • It centers on how people are treated by other. • E.g : under Federal Constitution : >Article 8 (1)

8. Article 8 (1) • All person are equal before the law and entitled to the equal protection of the law. • Clause (1) does not proclaim that all persons must be treated alike, but that persons in like circumstances must be treated alike.

9. Justice • The purpose of the law and justice is supposed to be supreme end. • E.g: under Federal Constitution : >Article 7(2)

10. Article 7 (2) • Protection against retrospective criminal laws and repeated trial. • Clause (2) -A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.

11. Morality • Meaning: A set of values, beliefs or tenets which govern a person’s or group’s behaviour. • E.g : under Federal Constitution: >Article 11 (2)

12. Article 11 (2) • Freedom of religion. • Clause (2) – No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.

13. Procedural justice -it is a fair procedure. -The focus is on the processes of arriving at a certain decision. -The example of procedural justice is the rules governing the fairness of trials. -People will differ over the fairness or correctness of the legal or political decisions, but they can agree on the fairness of the process. -In many cases, defendants in criminal trials or losers in democratic elections may be disappointed in the outcomes but accept them nonetheless because also they see that there was fairness in the process. - So, if people believe that a fair process was used in deciding what it to be distributed, then they may well accept an imbalance in what they receive in comparison to others in whatever decision

14. NATURAL JUSTICE

15. Natural justice or procedural • Natural justice or procedural fairness is a legal philosophy used in some jurisdictions in the determination of just, or fair processes in legal proceedings.

16. Fairness • justice, is a form of fairness: an impartial distribution of goods. We don’t know who in particular we are, and therefore can’t bias the decision in our own favour. So, the decision-in-ignorance models fairness, because it excludes selfish bias. • Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

17. Example of Natural Justice • Natural justice includes the notion of procedural fairness and may incorporate the following guidelines: • A Right to Advanced Warning. Contractual obligations depriving individuals of their Rights cannot be imposed retrospectively. • A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).

18. A person making a decision should declare any personal interest they may have in the proceedings. A person who makes a decision should be unbiased and act in good faith. He or she therefore cannot be one of the parties in the case, or have an interest in the outcome. This is expressed in the Latin maxim, nemoiudex in causasua: "no man is permitted to be judge in his own cause". Proceedings should be conducted so they are fair to all the parties - expressed in the Latin maxim audialterampartem: "let the other side be heard".

19. Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party. A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations. Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.[4

20. Distributive Justice Distributive Justice is also referred as Social Justice Distributive Justice attempts to share out the‘good’ and ‘bad’ things amongst members of society as equally as possible Example of ‘good’ things are : Wealth, Power andFreedom Example of ‘Bad’ things are : Burdens and Duties such as Taxes and to be subjected to restrictions over one’s property Distributive Justice recognizes that all members of a society do not have the same advantages mentally, physically and socially. Therefore, there has to be redistribution of resources to achieve fair shares among all members of a society.

21. DISTRIBUTIVE JUSTICE The division of benefits will often be subjective and depend on valued judgments. The divisible assets of the community may be distributed among its members in equal or unequal shares. Equal must be treated equally and unequal unequally. Distribution of benefits is according to merit, status and need Professor Dworkin concluded that the Parliament and not the courts are responsible for the distribution of goods among the members of the society. Example of distributive justice : Honour , Wealth and Freedom