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.

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Transcript: Video 2 Discussion of justice by Professor Simon Lee

INSTRUCTOR

Justice is obviously central to our understanding of law, and justice in two senses, fair procedure - before we judge anybody, we should be open minded, not prejudiced, but also we should hear what they have to say. And then justice as to the substance of whatever the issue is in society. What is fair as to who has this, who has that.

And if I can give some examples of justice in studying. I was always really impressed by the great Scottish Legal Philosopher Neil McCormick, and subsequently he was a member of the European Parliament for the Scottish Nationalists. Now, in his book on practical reasoning in law and morality, he gives as an example, a case - famous case, Donoghue and Stevenson, 1932, a case which revolved around an alleged incident in which a woman in a cafe poured some ginger beer over an ice cream and a decomposed snail allegedly comes out and the - she's horrified and ill. And the issue is, can she sue the manufacturer alleged to be responsible for this.

Now, fairly enough, this very morning I looked on Twitter. The first thing I saw on Twitter was a young woman barrister saying that she'd been talking about Donoghue and Stevenson with her teammate in chambers. In fact, it's her son who's presumed during school holidays sitting by her. And she said, he knows all about Donoghue and Stevenson.

Now, that is amazing. This little incident in a cafe in Paisley - actually it was in 1928, but the case was in 1932. It reverberates around the world everywhere as to what's fair to do in those circumstances. And, in fact, we never really found out what did happen because people died in the case, and they were actually arguing about if those facts were true, what would the law say.

And ultimately the House of Lords decided by a 3-2 split decision that the manufacturer could have been responsible in law, because it could have been reasonably foreseeable if the manufacturer were negligent. And, in fact, the manufacturer said, well, I didn't even make that ginger beer. Somebody else was using my bottle. But anyway, that's the kind of case in which judges make decisions about what's fair.

Now, another great Scottish judge, Lord McCluskey giving the Reith Lectures for the BBC in the 1980s, he said, it's all very well having statutes, having regulations, having previous cases. They are black letters on a white page. That's the black letter law. But you have to bring it to life.

And he's a great pianist, an accomplished musician. And he said, the piano doesn't play itself. The musical score doesn't play itself. You need somebody to bring it to life. And that's the judge. And no two pianists will play the same notes in quite the same way.

And so I think in lawmaking, we've got to be interested in what makes a judge decide in a certain way, and we've got to work out why is it that one person thinks it's fair that we divide a cake equally and another person says, wait a minute, I made the cake. It's mine. Or as we hear the British government say, we should have our cake and eat it when we're arguing with our European state former partners.

So where do our ideas on justice come from? Who has really thought about this? Who can help us? One of the greatest Scottish thinkers on any subject ever was Adam Smith. We think of him as an economist, the idea of the invisible hand in the free market. But he actually gave lectures on jurisprudence, my subject, the philosophy of law. I've got one of his lectures here.

He begins in 1763, jurisprudence is the theory of the general principles of law and government. The four great objects of law are justice, police, revenue, and arms. That's the kind of thing he lectured on. And I want to give just one example of what he thought was fair.

He said actually, by the way, universities aren't often fair. Universities are set up, he said, for the benefit of the masters, the teachers, but he himself didn't like this, and he didn't like the system in which even then - we're talking about the 18th century - even then students had to pay fees. They paid them directly to the lecturer. And so when he decided to leave the employment of the University of Glasgow, he insisted on giving the money back for the rest of that term to the students, and they resisted. But in the end, he said he wouldn't be at peace unless he'd given back.

And so that very issue of fees for students where there is a difference between the law and practise in Scotland and in England was one which the greatest legal and economic thinker that we can imagine, Adam Smith, had a view, and not just a view but he was determined to act justly. So for me, we can learn from our predecessors as to not just what they said but what they did, what is fair, what is just.

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Video 2 Discussion of justice by Professor Simon Lee

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