What characterizes a just law?
A just law has a number of widely recognized characteristics. A just law is characterized by the following:
-->treats all people equally
The notion of equality is an important aspect of the law. Although a just law may be providing equality it doesn’t always occur that way. For example, a wealthy person may be able to afford legal representation, but those people who can’t afford legal representation will be disadvantaged and will not have an equal opportunity before the law.
-->is based on generally held religious or ethical precepts
The common law legal system is the product of various historical influences, many of which were the religious and moral viewpoints of different times. In today’s society, ethics and how they coincide with the law are being replaced by the need for the law to protect society as a whole and consider economic interests.
-->is utilitarian
Utilitarianism is the theory which suggests the law aims to ensure the greatest possible happiness for the greatest possible number of people.
-->stresses consensus and social cohesion above all
Democracy helps create legal consensus. Democratic processes provide all citizens within the state with the opportunity to develop or create the law. Democratic processes will generally require a majority or consensus to bring a law into being. Democratic processes are designed to endure the survival and well being of the community through stressing consensus.
-->allows for general principles to be mitigated in individual cases
Mitigation allows for fairness. The law attempts to treat everyone equally; that everyone in similar situations is taxed the same, everyone who commits the same crime is given the same penalty. However the courts have discretion to reduce the penalty according to the circumstances.
--> aims to redress inequalities
--> It leaves people free
To the extent that people do not break the law, a just law will leave people free.
--> It takes into account of limitations in material resources.
-->It can be invoked without undue delay.
A just law should deal with a legal problem or dispute as soon as practicable after that problem or dispute arises. This is because people’s memories fade and so their evidence becomes less reliable as time passes.
But this is not always the case, as currently the Australian legal system has lengthy delays and cases take long periods of time to reach the courts.
Formal Equality – theory side of the actual practice. Here in theory everyone in Australia is treated equally and given the same opportunities
Institutionalized equality- this is the practical side to it. Although it seems everyone in Australia is equal there are people in sub groups in society who are part of a minority and aren’t able to benefit from the opportunities.
E.g. of formal equality:
Everyone has to right to access the law.
Everyone has the right to vote
EQUALITY OF OPPORTUNITY-Equal treatment of people in access to employment and services. …………..So everyone has the right to apply for a job. They have equal rights to a safe working environment. (work cover). Everyone has the equal opportunity to access the minimum wage.
EQUALITY BEFORE THE LAW-Everyone is treated equally in their dealings with the law. E.g. The rule of law. ……………So everyone has the implied right to legal representation. All Australian citizens are allowed to contest evidence put forward during court (natural justice – cross examination).
EQUALITY OF OUTCOMES-A practice whereby the law, policy or precedent aims to ensure that, regardless of educational or socioeconomic background, or inequality of opportunity, the result of certain exercises will be equality…………..so legal aid, if people aren’t able to afford legal representation they are given the opportunity to apply for legal aid.
Does formal equality before the law hides institutionalized inequality?
This relates most to EQUALITY OF OUTCOMES because this area is where the law has its most flaws. Although everyone might have the same opportunity not everyone is able to understand that system. For example unskilled migrants who come to Australia looking for a better life think Australia has equal everything…true but its not equal if you don’t understand it and aren’t familiar with it. For example: if you come from a non – English speaking background to Australia and get into trouble with the law or are being framed or a victim of fraud and exploitation how are you going to access the law and legal representation if you cant speak the language and don’t understand the system. Therefore not an equal opportunity.
GOOD LUCK
