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What makes the legal system just?

Updated Wednesday 22nd October 2008

If a legal system is to dispense justice, it must be just. How do you create that in the courts?

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Copyright The Open University


Copyright The Open University


Jane Goodey: A very difficult question, that, because everybody has a different understanding of the word just or justice, and I think equally difficult because the legal system is actually worked in, run, controlled and managed by human beings which means that I don’t think it would ever be, could be deemed to be entirely just from everybody’s point of view. But looking at it more rationally possibly, I think the system is just in two ways. If it’s deemed by those using it to be procedurally just, so that the way the justice is administered is seen to be just by people, and also the outcome in terms for example of a sentence is deemed to be just. So administratively, procedurally just and just in terms of the outcome.

Gary Slapper: Justice varies according to a particular setting, so what would be a just referee’s decision in one sport, to do with there’s a hand ball or not, would be different in football than it would in basketball where, you know, it goes... So justice depends on a fair outcome according to the rules of whatever it is that you’re looking at. There are questions beyond that to do with what is, what people might sometimes call, you know, ultimate forms of justice to do with overarching ideas of religion or morality with which people can look at the laws of a legal system and judge whether those are good or bad laws or should be obeyed or not be obeyed. And leaving aside those big questions for the moment, I think it’s important to look at what justice is within the context of the legal system, and justice within the context of the legal system means a fair and proper outcome of any dispute according to the existing rules of that legal system and the evidence that’s presented in a particular case. That’s what is meant by justice in an ordinary clinical way.

Lynn Tayton: Well no legal system is perfect because any legal system is run by people and therefore is necessarily going to be flawed in some respects. But in my view, one of the most important factors in a just legal system is a judiciary that is independent from the government. In addition to that I think I would say that a good test of whether a legal system is just is to look at how it treats the pariahs in society, the paedophiles, the terrorists. If they are dealt with according to fair rules that’s a good indicator that the legal system is a mature legal system that is just to all levels of society. And that guarantees fairness for all citizens.

Abigail Bright: Principles of natural justice pertain across the board so whether in criminal proceedings or other proceedings, civil, and principles of natural justice include that proceedings should be transparent, that a judge should show no bias and should have no vested interest in the end outcome, and also that there should be parity drawn between the parties. And by parity I just mean that equal treatment should be shown to both, so in criminal proceedings there should be equality of arms between defence and prosecution, and there’s a very important principle of natural justice that each side should have their say, should have an opportunity to voice their concerns, their interests, and that’s the principle of audi alterum partum. So that should pertain.

Mr Justice Calvert Smith: I think the key element of the just legal system must be an independent judiciary. Judges who are free to make decisions according to what the law requires without pressure being put to bear on them by, for instance, the government, by financial constraints, by pressure from the media or as it might be. I think we have an honourable tradition which is almost weekly exemplified by particular reports, particular cases of judges who just do exactly that, so that even if they sometimes get it wrong they don’t get it wrong because of some improper motive, they make decisions based on their own independent assessment of the law against the facts that have been proved in a particular case.

That is a result, I believe, of the fact that the feeding area as it were, the seed bed for judges has been the independent bar and its culture of independence and independent advice. Of course now, and it’s very welcome, there are judges coming from the solicitors' profession and I suspect in future there may be judges who come from government departments like the CPS, but I do believe that the culture of independence that is certainly alive and well in my experience as a judge, and indeed before that as a barrister, can survive even those changes. So the first essential independent judiciary.

The second element I think of our system in this country which we should maintain at all costs if we can is lay public participation in the administration of their, the public’s, justice system. Either by the use of members of the public on juries, a system which has almost everything to commend it and almost nothing in my view to its disadvantage, and lay magistrates to do justice in what are in fact more than 90% of all criminal cases, so that members of the public drawn from as wide a section of the public as possible are actually administering the public’s own justice system. I think that’s good for the public confidence and I think it’s good for public education so that more people actually know what goes on in court than perhaps is known in other jurisdiction where lay magistrates don’t exist and there is no jury system.

Gary Slapper: The answers to some of those bigger questions about morality and religion and higher ideas is that if there is perceived by any person or group of people to be an injustice as a result of the legal machine working properly and smoothly in a particular way and producing a particular result that someone or the group doesn’t like, the answer is in a constitutional democracy like the one in the UK to change the law in accordance with what are the higher beliefs by which something is judged to be unjust. Justice must always be within the context of a democracy the proper outcome according to the law and evidence. In order for that to happen a number of things need to be established.

First of all there needs to be a sufficient number of places where justice can be done, in some ways these are obvious but they need to be, these points need to be immediately obvious to people in a society that there are enough law courts and that they’re properly staffed and that if you have a dispute or if you, the state wants to prosecute someone or you’re the person that you need to be defending, that this is something which is part of established system of law courts. If you take an extreme, if there were too few law courts or justice wasn’t properly funded no justice in general could prevail.

Abigail Bright: A special issue arises in criminal trials and that’s how to accommodate victims and witnesses who very often can be the same group of people. How to accommodate them but also preserve intact rights for defendants, and that’s important simply to achieve a fair trial. So that’s a very particular issue and a lot of debate has been had on that. My view is that witnesses and victims should have rights to information and rights of access to information, so they should be kept up to date by the prosecution as the progress of the trial, the end result of the trial, when they’ll be required, when trial proceedings are taking place, but I don’t think that that involves giving witnesses or victims procedural rights, which is one way in which their incorporation has been argued.

Mr Justice Calvert Smith: Obviously a fair and independent appeal system is essential because we’re all human and mistakes do get made, and an ability of the system itself to be able to say sorry, we got this wrong, we’ll put it right so far as we can is vital. If the system ever got to the stage where in order to protect itself it did not allow appeals in order not to seem fallible, then again the system would be failing. I see no sign of that. The Court of Appeal, whether in civil jurisdiction or criminal jurisdiction, and certainly the House of Lords or the new Supreme Court as recent decisions have indicated are entirely independent and prepared sometimes to be highly critical of the decisions made by people who are sometimes colleagues and even friends of theirs.

Gary Slapper: So society has always and will always argue about the content of particular laws, whether that should be classified as murder, whether you can get a divorce in this way, whether if this sale is marred by that particular misrepresentation there’s a contract or not. The content of laws is constantly changing and there are always social and political arguments about what those should be. However they’re resolved, whatever the law is at any given moment in history, certain other things around the law are required in order for justice to be something which can be regularly delivered and properly relied upon by the society.

Those things include a properly working doctrine of precedence. That’s a phrase that lawyers use to mean that things will be decided in their case, in citizens’ cases in accordance with the way that similar things have been decided before, so it’s a very sensible rule against allowing law courts or judges to unpredictably, capriciously say that the outcome in this case is going to be X whereas in an almost identical case it was Y. And adoption of precedent operating properly is a very important precondition of justice according to the law being delivered to citizens.

Mr Justice Calvert Smith: Another key element of course is access to justice. We can’t write a blank cheque. You can’t write a blank cheque for health, you can’t therefore, for education, you certainly can’t write one for justice. But within the constraints of public funding it is essential that the person charged with a serious criminal offence has, as he or she now has, access to the best lawyers to defend them paid for by the public, and in civil cases too or family cases, it is essential it seems to me for the system to operate justly, and to be seen to be operating justly, that all sides have access to proper legal advice so that they don’t feel at the end of some hearing that they were outgunned by an unfair distribution of legal resources.

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