4.2 Formal justice
This is concerned that the legal principles are applied in a way which is fair. This invariably involves treating people in a similar situation in the same way; like cases should be treated alike. It is important that judges are unbiased when they hear cases, and that the same rules of procedure are applied to everyone in the same way. It is also important that regulatory frameworks such as health and safety laws, planning laws and financial services laws operate and are applied in a way that is fair and consistent.
The promotion of justice is reflected in the concept of ‘the rule of law’. In the nineteenth century Professor A. V. Dicey (1835–1922) set out the three elements essential for the rule of law. Put simply, these are:
- The state’s power must be controlled by the law; the law sets limits on what the state can or cannot do.
- No person is above the law; every individual regardless of their position is subject to it. The law applies to everyone in the same way regardless of their social, economic or political status.
- No individual should be subjected to arbitrary arrest or punishment. People should only be arrested in accordance with the law for breaches of the law.
This concept has evolved and been developed over the last 150 years into something much more sophisticated and complex but at its core lies the role of law in the creation of a fair and just society.
You should now watch the following video clip in which Professor Simon Lee discusses the role of justice.
The next activity asks you to think about justice and its role in the Scottish legal system.
Activity 5 Thinking about the ambition of justice
Reflect on the statements in Box 2 below. These are all drawn from government or legal sources. What words and ambitions do these have in common?
The statements are drawn from the Scottish Government’s Justice Strategy, the website of the judiciary in Scotland (who are separate from and independent of government), the Law Society in Scotland and the Faculty of Advocates.
Although not necessary for your studies on this course, if you wish to explore any of these further you can visit their websites at:
The statements share a vision and ambition for the legal system in Scotland. This includes a ‘fairer and just society’ where ‘justice is not only seen to be done but that it operates in an open and transparent way’. Words such as justice, fairness, equality, rights, access, inclusive, upholding the law, varied, open and transparent were used. Were any of these words on your list for Activity 2? Has your reading of these statements influenced your views?
Having considered these visions you will now return to exploring ‘law’.