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How is justice marginalised by the increasing dominance of economic considerations in modern western law?

By George Lake 460153

The whole world is in a state of globalisation. With cultures counter influencing each other, and new technology crossing boundaries once thought impossible to exceed, what is left of traditional values? Indeed with such a rapid pace of development that the western world is experiencing it could be wondered whether some ideas are becoming obsolete in favour of new or more efficient ones. The rapid advance and saturation of capitalism which Western Europe has and is continuing to experience has been said by some socialist commentators to erode away many traditional values and beliefs1. But are all values withering under an economically induced moral drought? Particularly, as this essay shall attempt to deal with, is the ideal of justice losing ground to the implacable advance of economic considerations? This is a question that this essay alone is not concerned with. The idea of justice within a state’s legal system is taken for granted in western democracies. Yet quite often the population of a country will be made aware of an unjust action somewhere within the machinery of the legal process. These unjust actions are often committed in the name of the public good, as this essay shall investigate. However, despite perhaps compromising traditional justice in order to save the tax payer money, many Western European states do indeed care that traditional justice remains the basis of its legal system. Indeed specifically, twenty eight countries within the Council of Europe care strongly about this 2. These twenty eight countries carry out annual surveys on their own public in order to discern the extent which the population is satisfied with the legal system of their own country and to what extent they perceive it to be an instrument of justice. Justice is obviously a high priority in these countries consciousness, otherwise they would not waste the resources to conduct the surveys upon thousands of people and publish them yearly. Between 1981 and 1999 the trust that citizens in many European countries had that justice was being carried out became significantly lower, in the UK going from 66% to 50%, Belgium 58% to 34% and the

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Karl Marx et al, The Communist Manifesto, Bury St. Edmonds 2002 p. 222 European commision for the efficiency of justice, European judicial systems, Edition 2008, efficiency and quality of justice. 2008. P. 69-70

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Netherlands 65% to 49%3. In all countries in the European Union, the public’s trust that justice is being carried out is in a steady decline4. There have been many suggestions as to why the trust in the legal systems of Europe is in steady decline, ranging from the better education and slowly growing prosperity of Europe’s citizens5 to scandals or events that have been unresolved by Europe’s governments, both social and economic6. This would suggest that although economic considerations are not the only factors marginalising justice, it is one aspect which is playing a part in diminishing justice’s standing within Europe. It would be worthwhile to examine how the processes of the legal systems in Western Europe are still based in justice, in the face of the increasing importance of economic considerations and how these economic considerations are diminishing justice’s traditional position in the Western world. The fact that the aforementioned surveys were carried out suggest that the states which commission them, believe that their citizens do not view their legal system as entirely just. Or perhaps the states in question are anxious to show the outside world just how well founded in justice their legal system is by publishing these reports, indeed the language of the reports attempted to downplay the significance in almost universal drop in trust in the justice systems of Europe. Either way, these reports are just one indicator which illuminates the importance attached to justice in the West. When the importance of justice is coupled with perhaps antipathetic concepts within the justice system, such as plea bargaining and state approved toleration of not enforcing laws, a queer, almost oxymoronic picture is painted of Western perception of justice. This is because there is an ideal of justice, but concepts that go totally against the idea of justice are part of everyday legal practice. This imagined conflict encourages me to attempt to uncover how economic consideration are eroding the remaining relevance of justice in modern Western law. Indeed, because the average European citizen’s faith in the justice that is being out is in the decline, it is important to discover the role that economic considerations play in this decline, as well as the extent to which these consideration cause it. There have been some events that have occurred after the creation of the treaty of Maastricht, which are indeed dubious when it comes to justice, which shall be dealt with

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Vertrouw in de rechtspraak,Theoretische en empirische verkenningen voor een monitor, werkdocument 102, P. Dekker, et al. P. 49 Vertrouw in de rechtspraak,Theoretische en empirische verkenningen voor een monitor, werkdocument 102, P. Dekker, et al P. 49 5 Explaining attitudes towards the justice system in the UK and Europe. S. Van de Walle et al. University of Birmingham, Birmingham, 2008 P. 32 66 Vertrouw in de rechtspraak,Theoretische en empirische verkenningen voor een monitor, werkdocument 102, P. Dekker et al P. 50

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later in this essay. A good example is the Dutch fraud case involving a group of building companies who set prices illegally for the building of the Schipholtunnel7, where instead of a trial for those guilty of fraud, only a fine was given. This essay shall not be alone in believing that events such as this cause the faith in justice to decline, as other reports collaborate with this essay’s opinion, believing such scandal to have a negative influence on the trust in justice. It is imperative to realise that European citizens trust in one of the institutions which is supposed to uphold their freedom is dwindling. It is therefore important to discuss how every aspect which is causing this loss of faith gnaws away at this trust. This essay is more limited in scope, focusing on how economic considerations cause justice to be marginalised. Of course, undertaking an essay on this topic, one would naturally be a little sceptical that traditional justice is the prime concern of modern Western legal systems. This is of course a subject which this essay alone is not concerned with. There is already debate on both sides of the argument, considering that justice is vastly compromised by economic considerations, and others that believe that justice is strengthened by them. A good example of this debate revolves around the issue of plea bargaining. Whilst this is an accepted form of legal practice in many common law countries, such as the United Kingdom, some civil law countries still find it a dubious concept because of its sapping effect on justice8. Here the English argument of the potential benefits to society, such as speedier trials and a higher success rate of conviction, are countered by a view perhaps more influenced by a Kantian form of justice which Germany uses, which seem to criticise the moral roots of the plea bargaining theory9. Plea Bargaining shall be discussed later in this essay in more detail. Another area where this debate is already raging is in the Netherlands, where the principle of “gedogen” or legalised tolerance, is a topic of discussion. An example of gedogen could be related to the allowance of people using and possessing small quantities of soft drugs, despite it being illegal according to the opium law of 192810, where it clearly states in article 3 that selling soft drugs contravenes the law. However, because of an agreement by the public prosecutor, selling of small amounts of soft drugs is tolerated11. This leads to discussion as to whether this arrangement is unjust. On the one hand, the government and
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28 244, enquete bouwnijverheid, EINDRAPPORT PARLEMENTAIRE ENQUÊTECOMMISSIE BOUWNIJVERHEID Den Haag 2002, M. Boll, Plea Bargaining and Agreement in the Criminal Process. A Comparison between Australia, England and Germany, Druck Diplomica Verlag GmbH, Hamburg 2009. P. 50 9 M. Boll, Plea Bargaining and Agreement in the Criminal Process. A Comparison between Australia, England and Germany, Hamburg 2009. P. 50 10 Opiumwet 1928 11 D. Van de Gouwe, Het Drugsbelied in Nederland, Trimbos insituut 2009. P. 5

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After this essay has taken its course however. Specific examples which are perhaps ambiguous in regards to justice shall be examined. 22 4 . before a provisional conclusion will be formulated in order to briefly answer the subordinate research questions. The fact that it costs society less to deal with such minor misdemeanours is seen as in itself a benefit. This essay’s main research question shall therefore be: “How is justice marginalised by the increasing dominance of economic considerations in modern western law?” This alone is a vast topic. based on the evidence presented earlier. However. the arguments surrounding the extent which justice should and is playing in European societies against the extent that economic considerations are growing in strength at justice’s expense. according to another Dutch scholars. so in order to more adequately deal with this question. 2010. The three stages being the legislative process. than push a partisan view formulated before the issue can truly be seen in full light. Gedogen door bestuursorganen. of this matter. These three questions shall regard the three stages of the legal system as is common in Western Europe.the public prosecutor of the Netherlands try to emphasise the pragmatic nature of such an understanding with the soft drugs users. this essay shall not attempt to form a conclusion throughout this study. As can be seen by dipping our toes into this maelstrom of disagreement. so far as possible. Each of these cases shall be at first evaluated in the light of traditional justice.R. be explored and recounted as unbiased as possible. the criminal procedure and the subsequent sentencing should any laws be broken. it is seen as eroding legal certainty and indeed equality of treatment under the law12. each of which shall help the main question to be answered. Therefore within each of these sub questions various cases shall be studied. These cases will be actual events or policy which have taken place within the legal system of the country in question. Kluwer bv Deventer. This topic shall also be discussed in greater detail later in this essay. This essay shall attempt to argue for justice and economic considerations with equal vigour. a conclusion shall be made. p. and then according to this essay’s definition of economic considerations. which shall explain how economic considerations are such an important factor in marginalising justice in the modern western world. However. is a heated and contemporary topic. three subsequent questions shall be asked. 12 F. as far as truth can exist. and the research will. Vermeer. as it is more important to uncover the truth.

of course will have to first of all be defined. economic considerations are contriving to marginalise justice. This essay will use Immanuel Kant’s opinion as the champion of traditional justice pitting these ideas against the utilitarianism of John Stuart Mill. Here the research question shall attempt to be answered via the subordinate research questions which are the focus of the core chapters. The core. it would be quite impossible to cover its expanses in the limited space available. meaning many different things to many different people. Of course the field of study will be reduced to several countries in particular with several more being used to support the cases drawn. However. This essay shall supplement these two philosophies with subsequent commentaries or other complementary philosophy. whilst remaining critical. which shall help to answer the main research question of this paper. in order to properly apply the main idea to more specific legal concepts. which shall represent the economic considerations that are being taken into account. The conclusion will also include my own opinion on the matter. explain how behind this case. that being chapters two. three and four shall focus specifically on their own sub question. Justice. there shall be an attempt at a conclusion. To finish this essay. all definitions and theories will be explained in more depth later within this essay. according to what this essay has revealed. The first shall outline definitions by which this essay shall measure the subsequent core of the essay.This essay shall progress over four chapters. Each of these chapters will first focus on a related case study and then. This is because Western Europe is so large. 5 .

so as to better be able to analyse them later. Western. As well as the main research question. The treaty of Maastricht is a significant point in time. these being the United Kingdom. for the purpose of this essay. whilst working together from after the second world war onwards. However. 13 Treaty of Maastricht 6 . shall be defined for the purpose of this essay as those countries that share a particular amount of similar history and culture. Canada. the Netherlands and one or two others. These questions must first of all be stated and then every variable within them defined. The main research question. as already stated is “How is Justice Marginalised by the Increasing Dominance of Economic Considerations in Modern Western Law?”. and the first step towards creating common ground for many national legal systems. shall be defined as 1993.Chapter 1 Definition of terms The first factor to consider when beginning this essay is the research question. Modern. In order to answer this question the three sub questions shall be. there are three subordinate questions which will be asked in order to answer more fully the main question. This would then include the whole of the European Union. as it is with this treaty that a common European court was created. only several of these countries will be looked at in detail. “How are the Prosecution and the Related Prosecution Strategies Influenced and Marginalised by Economic Considerations in Modern Western Law?” and lastly “ How is Sentencing in Modern Western Law Influenced by Economic Considerations?”. “How are Legislative Processes Marginalised by Economic Considerations in Modern Western Law?”. as well as the United States. in the terms of this essay. with the signing of the Treaty of Maastricht up until present day. The first common feature of each of the questions is the notion of “modern western law”.13 This gives a fairly large number of years which are still in living memory and are equally affected by the changing political climate in a large part of the geographical West such as the founding and expansion of the European Union as well as alliances during the Cold War. Australia and New Zealand amongst others.

p. 129 7 . a standard and more concrete definition must be laid down. this being. “Because of every person’s inborn personality. most specifically in his work. when someone is found guilty of breaking the law.g. e. as well as its importance. where laws are formed by the government. in some common law countries. when the legal procedure of deciding the outcome of an alleged transgression of the law. no matter the mitigating circumstances”15 This definition may seem overly complicated. more informally by the judges and in other countries by the public prosecutors. as well as the relevant legitimate strategies that can be undertaken by various parties during and before this procedure. many of which have similar veins and overlap somewhat. and thus the idea of justice that this essay shall be concerned with. Kant was certainly a defender of his version of moral justice. and the natural rights this confers. the definition shall be. no law should be made to promote a good within society. The last two aspects to be defined in order to answer the research question as well as the subordinate questions. The Science of Right. His thoughts. The second area of law shall be the prosecution and strategies employed herein. sheds a good light upon what he truly believed justice to be. London. believing that there should be 14 15 Oxford English dictionary. Likewise. but in order to properly analyse whether justice is indeed being marginalised in the face of economic considerations. are more philosophical. For the purpose of this essay then. Immanuel Kant. which potentially damages these innate rights. The definition of justice this essay will confine itself to therefore will be based upon that which was formulated by the Prussian philosopher Immanuel Kant. The Science of Right. despite the good society can gain from the law. what form their punishment they are subjected to shall take. 2010. namely the legislative process. no one should be punished or shown judicial leniency purely or in part to promote a civil good. focus on three specific areas with the law. and be no more nor less than that. but the last sentence captures the essence of Kant’s thoughts. There are many definitions of justice.Law shall be defined for the purpose of this essay as the “the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties”14 This essay will however. The punishment for committing a crime should fit the crime. The last aspect of law that will be examined shall be the sentencing.

and so the extent that justice is being marginalised in the face of economic considerations will be more clear. economic considerations will be based on the concept of utilitarianism. 236 18 John Stuart Mill. The other main reason that Kant’s idea of justice was chosen as the definition of justice for the purpose of this essay. Likewise. Therefore the definition this essay will be concerned with to represent economic considerations will therefore be. “An action or consideration which increases the economically measurable general welfare of society or does not decrease the economically measurable general welfare of society. is that it is distinctly at odds with economic considerations. it will be more starkly apparent when the analysis of the questions take place. or the money saved in not prosecuting. 81-82 8 . with Mill believing it acceptable to punish someone to set an example to others or forcing someone to make a sacrifice in order to benefit society as a whole18. The last factor to be defined is economic considerations. The Science of Right. Mark D. This essay will concern itself with the definition of utilitarianism to represent the economic considerations as defined by John Stuart Mill in his book Utilitarianism. 2010. so as Kant would see it. This theory is much more morally ambiguous than Kant’s theory of justice. for example looking to see which option will mean more to society as a whole. For the purpose of this essay. London. even if the divergence could lead to immense leaps forward in medical knowledge or the salvation of a civilization. is not being observed. Here it could be seen that the greater good of society is being taken into consideration.absolutely no deviation from this justice. Kant is of course one of the seminal creators of such notions of justice we still hold today and this is part of Europe’s shared cultural history. An ideal which is still to some degree17. p. then human life would no longer have any value in this world16. the acquittal of criminals instead of the costs of a lengthy and uncertain criminal trial. 18 p. as economic considerations cannot be accommodated within this definition. the punishment of certain criminals. He states that should justice perish.” 16 17 Immanuel Kant. 129 White. 1863 p. Utilitarianism was developed by Jeremy Bentham and John Stuart Mill. Review of Political Economy. Because of this quality. This can clearly be linked to more modern day practices involving economic considerations. (2006) ‘A Kantian critique of neoclassical law and economics’. and justice. I have chosen this definition because I believe that it captures to a large extent the traditional idea of justice. Utilitarianism. latent in the Western European psyche.

”19 Therefore the question could now be put as “Is Kantian Justice being marginalised in the face of utilitarian considerations in Modern Western law?” 19 John Stuart Mill. which could be described as. “An action or consideration is right in so far as it increases the general measureable welfare of society and wrong if it likewise decreases the measurable welfare of society. London.This is based on John Stuart Mill’s utilitarianism principle. Utilitarianism. 1863 p. 9-10 9 .

The case in question regards fifty of the UK’s top fee paying secondary schools. actually prohibits an organisation from conducting activities which do not infringe the rights of anyone. also known as “private” or “public” schools.uk/media/pressrel/Documents1/ofgem4-190109. unlike most conventional laws. Indeed it is more often used as a threat to bring into line organisations which seem to be moving in the direction of infringing its conditions. Indeed competition law restricts the movements of organisations according to what the legislators believe is a socially desirable outcome.ofgem. due to economic considerations through the medium of a case study. intentionally or not. we must first consider the first of the sub questions. That is “How are Legislative Processes Marginalised by Economic Considerations in Modern Western Law?” This section shall discuss how legislation is used as a tool to marginalise justice. shared information with each other regarding how much they charged and were going to charge students per term for attending their institutions. rather than actually being used to prosecute an organisation.gov. twenty of these institutions raised their 20 21 http://www.Chapter 2 How are Legislative Processes Marginalised by Economic Considerations in Modern Western Law? In order to begin gauging how justice is being marginalised by economic considerations in modern western Europe.uk/ukpga/1998/41/section/18 10 . This means that because the legislators want to influence society so as to protect consumers from high prices of organisations which are in a dominant position in the market.legislation. These schools. the case which this essay shall concern itself with is a case investigated by the British Office of fair trading in November 2006. there have been very few cases which have revolved around it.gov. Competition law is a morally ambiguous type of law. which are also registered as charities. as has been the case with Scottish power and Scottish and Southern Energy in 200920. The area this essay will chose to focus on to illustrate how legislation made in the modern Western world is influenced by economic considerations will be the issue of Competition laws in the UK and Europe. which. thereby being covered by the Competition Act 199821.pdf Competition Act 1998. Because of this. UK government http://www. To compound this. Since the British Competition Act was only introduced in 1998. due to some advantage they enjoy. the organisation is penalised so as to achieve this.

129 25 Competition Act 1998. This information was made secret and certainly not published to those who it would effect. in the pursuit of a social good. The Office for Fair trading subsequently imposed a 10. attracting more custom. after sharing the information. The fact that they shared information did not violate anyone’s rights in particular.oft.legislation. the company or business is restricted by this law. they also bore a risk. 2010. UK government http://www. we are concerned with the legislation itself. it was simply the organisations utilising a natural advantage which they enjoyed of being able to communicate with each other.com/2005/12/articles/article/leading-uk-private-schools-accused-of-anticompetitive-behavior/ http://www.000 pound fine on each of the participating schools and the schools all immediately stopped their illegal actions. it can be seen that the schools did not infringe the Kantian rights of anyone. In fact. these monopolies should not be made an example of justice because they are in a position to cause hardship to people24. monopolies are frowned upon. Indeed.uk/OFTwork/cartels-and-competition/ca98/decisions/schools 24 Immanuel Kant.prices accordingly22. thus effectively forming these fifty schools into a cartel 23.uk/ukpga/1998/41/section/18 11 . According to Kant. it seems that this law was created with a social good in mind. in the UK as in other parts of the world. that of protecting consumers interests. a social good in the form of economic considerations of the consumer took precedence over any will to not restrict organisations in their actions which do not necessarily violate the property rights of anyone when this legislation was formulated. in this part of the essay. The Office for Fair Trading investigated this. The Science of Right. However.gov. so that it cannot do what it likes with its own resources. However. it states that a company or business cannot “directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions”25. In section 18. could have defaulted on their agreement and set their prices to their advantage. If this case is looked at closely however. p. rather than compliance with the law. is not necessarily against the inviolable rights of others.antitrustlawblog. the government of the UK introduced the Competition Act of 1998. and with the cooperation of several of the participating schools found all of them guilty of infringing chapter 1 of the Competition Act. as any of the schools.gov. Since. To manoeuvre yourself and your business into a monopoly position.2a of the Competition Act of 1998. Indeed it is likely because of your own hard work and ingenuity. This is because of the damage they could do to the consumer. However. If the definition of justice that this essay concerns itself with is applied to this statement. the emphasis is rather on the law than that the company 22 23 http://www.

It can therefore be seen clearly that competition law is an area of legislation where justice is being marginalised in the face of economic considerations. A Kantian Critique of Antitrust: on Morality and Microsoft. Volume xxii. usually understood as higher prices. indeed it is not even certain what the results of these possible actions are. White would lend credence to this essays opinion. cannot be seen as being made with justice in mind according to this essay’s working definition of justice. It is not only this essay’s opinion that this law cannot be seen as being made with justice in mind. or. spring 2007. Firstly. White states in his “A Kantian Critique of Antitrust: On Morality and Microsoft” that the Justification normally given for the prohibition (antitrust or competitive dominance as it is called in Europe) is minimizing the negative consequences that may result. volume 2. Mark D. companies are penalised and restricted for acting in their own interests. But are any rights violated by these actions. in other words. p. White. it is quite apparent that the Competition Act. Secondly. with a social good in mind. The organisations are not violating anyone’s rights. From these conclusions it is clear that this law was not created with Kantian justice in mind. special issue. The well known scholar of Kantian issues. But what is the extent that economic considerations have marginalised justice? If we refer back to the definition of economic considerations made earlier in this essay. The legislators foresaw the results which White describes. which may lead to making products they sell expensive for the consumer.should be punished should it break it. However. This law. 168 12 . by restricting monopolies and opening competition is measurably increasing the general economic welfare of the consumers of society. or lower social welfare/efficiency. lower consumer surplus. The business or company would be punished purely for acting if it is considered by the government to be unfair. Specifically this law places consumer’s economic welfare above the economic welfare of the companies. the companies should not be punished for exercising their innate rights to pursue self interest. and in the vague interests of fairness. according to the definition of justice being used. This law puts the consumer’s rights above that of companies. the Competition Act of 1998 is clearly promoting a social good at the expense of another entities well being. the legislators created this law. The British government created this piece of legislation with the intention of pursuing a social goal. and believed that it was better to restrict organisations 26 Mark D. Journal of Private Enterprise. do firms have any duty not to engage in these practices?26 This is precisely the moral problem involved with the creation of competition laws.

special issue. The legislation clearly worked. Volume xxii. White. the legislation clearly was created to perpetuate a social good. The rises are not even necessarily bad for the consumer as other organisations may lower their prices accordingly to gain a competitive advantage28. Although this cannot be said for all legislation defiantly. 169 13 . A Kantian Critique of Antitrust: on Morality and Microsoft. White points out in his article that there is no restriction on firms from raising their prices. firms do not have to give reasons for their price rises. This is exactly what happened to the Public schools in England. p. as two fifths of the schools involved raised their fees accordingly after they had shared information. it can be said that some pieces of legislation certainly take economic considerations into account and places their relevance over justice. in order to keep the prices down. However. the legislation is certainly contrary to the definition of justice made at the start of this essay. p. volume 2. which do not directly harm anyone’s rights. 168 28 Mark D. Likewise. A Kantian Critique of Antitrust: on Morality and Microsoft. The example of 27 Mark D. spring 2007. as has been illustrated by the example of the UK. For these very reasons is competition legislation enacted in Europe. depending on their strength within the market. the fact that some organisations are punished by law. as two organisations could be treated completely differently. As Mark White accurately points out. Journal of Private Enterprise. as no organisation usually has a duty to not engage in practices to maximise its wealth. economic considerations are a reason why justice is marginalised in legislation in Europe. and that this is in fact something expected within the market. Volume xxii. White. In the example given of the Public schools. In this way. Thus. This is clearly unjust. the legislation protected the current and potential students (or their parents) from paying higher fees. special issue. if they are in a strong market position. However. volume 2. in the US antitrust legislation is enacted in order to keep prices down and raise consumer surplus27. as it directly punishes an organisation for not promoting a social good. Indeed this legislation was also created with economic considerations is mind. Journal of Private Enterprise. spring 2007. This seems contrary to basic capitalist principles. who had no moral duty to their consumers not to share information. whilst other firms are not effected and may raise or lower their prices without penalisation. and thus makes the consumer happier. This is a good example of how legislation enacted because of economic considerations can and does marginalise justice in Europe.freedom in order to protect the purchasing power of consumers. yet the legislation restricts their actions.

Liberationist philosophers such as Robert Nozik amongst others would state how this violation of property rights to promote a social good is unjust. council services etc. Despite this essay not delving deeply into more aspects of utilitarian motivated legislation than competition law. it is according to this essay’s definition. and affect everyone within it. it must be clear that this is not the only piece of legislation that demonstrates economic considerations marginalising justice in Western law. and it can be seen that competition law.competition law however is the epitome of legislation being used as a tool of economic considerations to marginalise justice. The most common example of course is tax legislation. Therefore Kant’s definition of justice would be broken. Many pieces of legislation can be seen as a losing battle between the ideals of justice and utilitarianism. rather harms organisations by prohibiting them from undertaking actions in order to uphold or create a social good. even if the organisations did nothing to contravene anyone’s rights in the first place. this is not the case however. by seemingly giving justice to the consumer. without spending too much time on an appropriate analysis. and this is does quite effectively. the fact that we all must pay taxes should easily demonstrate that these laws created with the social welfare in mind. and since Kant believed laws should not be created purely to promote a social good. 14 . in the form of lower prices. as the law of Death duties was. health care. When viewed in the light of Kantian justice. Indeed according to this essay’s definition of justice. permeate the whole of every Western legal system. as taxes are used to raise the overall social good by paying for services such as police and fire brigade. Other examples of unjust but social wealth maximising legislation could include death duties. but Mill’s utilitarian definition of economic considerations would be satisfied. Indeed. laying roads. competition law is not the only example of legislation being marginalised by economic considerations. not just huge businesses. Indeed these pieces of legislation are to push a social good. However. it seems that people who pay tax are being punished purely to satisfy a social good and not because they committed a crime. unjust. In both cases the actors are punished economically and a social good is championed to the detriment of individual liberty.

uk/news/uknews/1535860/Police-paperwork-costs-hit-625m. which is bogging the active police force down and hindering them from dealing with new criminal matters30.php 31 Opiumwet 1928 32 http://partydrugs.dutchnews. just like every other country in the world. This chapter shall look at how economic factors are indeed at least partially behind this change in policy. due to the excessive amount of paperwork and time it takes not being worth the effort to properly apprehend those guilty of committing “minor crimes”. within the Netherlands. In the UK. the possession and use of small amounts of soft drugs are not seen as a criminal issue but rather a health issue32. this essay shall proceed by studying another main feature of all Western law.co. such as Amsterdam. tolerance of soft drugs were codified. and petty crimes cost society more than it is worth to deal with.webklik. it is more worthwhile for police forces to concentrate on stopping supposedly more damaging crime than tackling petty crimes. there has been a public call up for volunteers to take up some of the burden of police paperwork. the Netherlands viewed the possession and use of soft drugs as a criminal offence. In large cities in the Netherlands.telegraph. that of the execution of the law created and prosecution strategies. as unlike other countries. Since 1976.nl/news/archives/2006/12/police_volunteers_to_takeover. as from 1928 until 1976. It would be naive to believe that it is purely for purposes of perception of drugs that this tolerance of drugs. This was not the first Dutch initiative to free the police force sufficiently so that they could deal more with serious crimes. police paperwork costs more than a third of a billion pounds a year29.nl/page/gedoogbeleidnederland 15 .Chapter 3 How are the Prosecution and the Related Prosecution Strategies Influenced and Marginalised by Economic Considerations in Modern Western Law? To continue evaluating how justice is marginalised by economic consideration in the Western world. domestically do not always do their best at executing the will of the law against minor crimes. when the Opium act of 192831 was changed so as to differentiate between “soft” and “hard” drugs. as they are worse for society. That is to say. There is often some feeling that the police forces of Europe. which is now official and how this erodes justice. or “gedogen” was created.html http://www. 29 30 http://www. that seen in a purely utilitarian light.

it would cost a lot of money.nl/page/gedoogbeleidnederland 16 . The many coffee shops which can be found in every city in the country are testament to the way this law is apparently flouted. 63 35 Opiumwet 1928 36 Immanuel Kant. But just because the Opium Act is not actively enforced. which buy the cannabis and smoke it. it is not worth the states while to spend the money justly enforcing the law totally.The official policy of gedogen or gedoogbeleid is a curious issue. This is not only unjust because the law is not being followed correctly. sometimes on the premises. E de Bie. that if the Dutch attempted to prosecute the users of soft drugs. If our definition of justice is applied to this scenario. Although in the eyes of the law. even though it is a crime.. it is officially discussed by the councils. this being the punishment as set out in the Opium act35 . than just accepting the fact of widespread soft drugs use. government and public prosecutor as to what extent they will allow the law to be broken34. that all forms of soft and hard drugs are illegal (alcohol and tobacco not being included as an outlawed drug) it is clearly allowed for this law to be broken. they should be punished according to their crime. Bieleman. R. it seems obvious that both the coffee shops and its customers are criminals. as it is so popular. therefore economic considerations are playing a part in marginalising justice. Indeed. A Beelen. the view of soft drugs changed so that it seemed less bad than the more rare hard drugs37. The Science of Right. It is clear however. p. Coffee shops in Nederland 2007. A situation arises where two groups of people are clearly in the sight of the authorities. it does not necessarily mean that economic considerations are eroding what justice there is in the matter. pg 129 37 http://partydrugs. Because it is now viewed as a health issue instead of a crime. should justice be followed. The policy of gedogen clearly contravenes Kant’s idea that “No one should be. and. it is technically punishable. the non enforcement certainly does entail less police time. shown judicial leniency purely or in part to promote a civil good”36. 2010. because soft drugs were more widely and openly used in the 1970’s than hard drugs.. Despite it being stated in the Opium act of 192833. the coffee shops which buy and sell quantities of cannabis and their customers. and indeed. However. 33 34 Opiumwet 1928 B. The general view changed so much that it became official policy to tolerate the use of soft drugs and see it not as a crime to use and possess them. but also it persecutes those whose drug of choice doesn’t happen to fall on the list which is tolerated.webklik. Nijkamp. just because the official extent of non enforcement is discussed by official bodies. and instead see it as a health issue. Intraval Groningen 2007. and therefore money is spent on the dealing of soft drugs by police.

aspx 17 . this coffee shop was raided by police. and perhaps another hundred or so grams are held by the drugs retailer. He stated that he needed the large amount of stock to stay in business. it is a terrible criminal offence which deserves license revocation and prosecution. If the cost of enforcement per problematic drug user is looked at. In December 2010. If this line is crossed. the hard drug user. where only hard drugs and possessors of large amounts of soft drugs are 38 39 http://www. this was and is legal. is the justness of punishing those who are in possession of apparently too much of a totally illegal substance. the Netherlands. and it is also clear. that economic considerations. De Highlander was carrying 3800 grams of soft drugs. there is a line. However. thus if the owner stuck with the tolerated amount of stock. he would only be able to make one hundred sales before needing to re fill his stock39. a not unlikely claim considering that customers buy their drugs in packets of 5 grams. Another moral problem. the soft drugs user is left alone in the Netherlands. It is not officially tolerated for large amounts of soft drugs to be possessed. although prohibited by the Opium Act. This is clearly unjust according to this essay’s definition.omroepbrabant. are the motivation for this policy. someone committing an equal crime according to the Opium Act. that being the monetary cost to society of prosecuting the numerous soft drug users. that the possession of a drug retailer of 500 grams of soft drugs is acceptable. in the case in question. will be punished.omroepbrabant. However. are only tolerated if they have a licence and only 500 grams of soft drugs are tolerated to be on the premises.Just as the firm which has less market dominance is left alone when it raises its prices. A suitable and recent case to illustrate this is the case of “De Highlander” coffee shop in Eindhoven. However. semi legal retailers of soft drugs.nl/?news/147175992/Te+veel+softdrugs+in+coffeeshop+Eindhoven. it can be seen that in the Netherlands. is not seen as a terrible thing.nl/?news/147175992/Te+veel+softdrugs+in+coffeeshop+Eindhoven.aspx http://www. other than the apparent differentiation with no legal basis between not punishing those who possess or use soft drugs whilst punishing those who do use hard drugs. Of course the owner of this coffee shop knowingly had more stock of drugs than would be tolerated by the police. and so those in possession of large amounts are prosecuted. The reason for the raid was not because it sold soft drugs. However. coffee shops. that is 3300 grams more than is tolerated in the policy of gedogen38. It seems that the social good derived from not prosecuting “minor offenders” in terms of revenue is more than the cost of expenditure for prosecuting those who infringe the tolerance policy. which has no Kantian justification. and the possession of these drugs.

the subsequent police investigation and the trial and judgement. soft drug users were also not tolerated but prosecuted. it costs on average 55. as well as the time of the police. A van Gageldonk. this would incur even larger costs to the Dutch state. p. it can be seen that on average 17. Of course there are no statistics as to how many people are breaking the Opium Act.considered problematic.000 euro’s per prosecution. It has been argued by some scholars that up to 850 million euro’s a year are saved due to the policy of tolerance. It could be deduced from this. which can vary in price from a hundred or so Euros to around one thousand43. In Sweden and the USA. school of Public Policy. the cost to society is almost proportionally the same40. M van Ooyen-Houben. T Ketelaars. Coffee shops in Nederland 2009. it has been measured that 22. Nijkamp. where all drugs usages and possession are considered problematic. all of which are allowed and do sell cannabis to a portion of their customers everyday they are open44. However. Therefore this overlooking of the minor infringements certainly saves the state a significant amount of money for every person it chooses not to take to court for breaking the law. An Economic Perspective on the Legislation Debate: The Dutch Case. Estimating government drug policy expenditures. in a minor way. University of Maryland and RAND corporation. E Croes. it is clear that the non enforcement of the Opium Act in its entirety is a socially good thing.rechtspraak. report on the Drug situation 2006. as in all other countries in Europe. R. p.000 and 8. As this is the case. What Durgs policies cost. 9 42 Martijn Adriaan Boermans. R Meijer.6% of the population of the Netherlands are users of soft drugs which prevails their whole lives. Although it would be foolish to believe that these coffee shops would be in existence in their current form if this law was fully enforced. pg 1 18 . and more could be saved if soft drugs were properly legalised42. Amsterdam Law Forum.000 euro’s respectively is spent per problematic drugs user. MD USA. Utrecht 2007 p. Trimbos Instituut. small amounts of cannabis would still be used by small sections of the population. Indeed the official sources do not state exactly how much money the tolerance policy saves. infringes the Opium act. G Cruts. But does this mean that justice and legislative processes are marginalised in the face of economic considerations? It seems that even if not only a monetary public good is being 40 Peter Reuter. Intraval Groningen 2007. like in Sweden and the USA. but there are 666 coffee shops in the Netherlands. it would be amazingly expensive should almost a quarter of the population be prosecuted for their activities.nl/Naar+de+rechter/Kosten+van+een+procedure/Griffierechten/ 44 Bieleman. with statistics indicating that this is slightly increasing41. the amount of police paperwork of the arrest of someone who. therefore it is much cheaper to tolerate these actions. 320 41 M van Laar. that if. Because of economic considerations. If it is taken into consideration. Indeed. 43 43 http://www.

for example the controlled doses of heroin for some of the people who are most addicted. and an official policy of not carrying out the law has been adopted. and indeed. is later being used up elsewhere in the Dutch drugs policy. It could be seen that the money saved by the non prosecution of people who break the Opium act. which persuade them to tolerate the breaking of their law. It is much cheaper and quicker to offer one criminal freedom in return for their damning testimonies about a larger group or more important criminals. However. Whether the main reason for tolerance is the cost to society that it would incur.achieved by the policy of gedogen. or whether the costs saved by society because of an enlightened policy is not entirely clear. it can be assumed that economic considerations 19 . because the huge amount of money saved. that of gaining more evidence in order to prosecute more criminals. than for extensive police work to be carried out which may be fruitless. To a certain extent it is because of this reason. and by allowing the recipient of plea bargaining a diminished sentence and in some cases to go free. It is clear that economic considerations play a large role in the decision to tolerate. other social goods are put ahead of and partially at the expense of justice. it seems that justice is in fact marginalised. Therefore. According to the definitions laid down at the beginning of this essay. Plea bargaining is an economic tool. or not spent surely plays a large role in the fact that justice is not done. a law is not fully enacted. Perhaps it is the liberal image the Netherlands live with. the example of Dutch drugs policy is not a unique example of economic considerations marginalising an aspect of justice in modern western law. This again promotes a social good ahead of the law. at the expense of Kant’s wanting that a punishment should fit the crime. the Dutch drugs policy would be mightily expensive. Plea bargaining is a well known phenomenon. but it clearly promotes a social good. Again. but also prosecuting the larger number of people who use softer drugs as well. public good is being promoted in general over a hard line of sticking to the law. should it recommend not only giving controlled doses of heroin to its top addicts. Kant certainly would not find it acceptable that there is no punishment for those who commit the crime. rather than pay the price of enforcing the law. Again. This is clearly unjust according to Kant and this essay’s definition of justice. as those who break the law are clearly not punished in a fitting manner and not as equally as those who use hard drugs. it is certain that justice is marginalised and economic considerations do prosper in the face of this. the heroin addict likewise breaking the law by taking the heroin.

marginalise justice within the prosecution and punishments of modern Western law. 20 . and that the Dutch drug policy is not a standalone example.

Kant believed and stated. The process of settling is when the two parties involved in a legal action. and so can afford to settle whereas economically poorer parties do not have this option. that the punishment for committing a crime should fit the crime. the action of settling out of court does not allow true justice to be done. is that settling out of court is to the advantage of the parties with the most economic wealth. The plaintiff is then spared the risk losing the court case with a guaranteed win from the defendant. although sometimes the legal process is wasted because a case is disrupted half way through. and be no more nor less than that. Even worse for justice. as there would be a lot less expensive and time consuming trials using state revenue. Technically a settlement is provided for in law in the form of a contract. p. But settling out of court can snatch away justice from the situation. This contract says that the plaintiff will forgo its ability to sue or to carry on a claim in court as long as the 45 Immanuel Kant. The focus shall not so much be upon the actual sentences handed down by the judges. This is usually beneficial to both parties. decide either half way through a court action to withdraw from the process or to totally forgo the legal process in favour of one of the parties giving a concession to the other. the plaintiff usually receiving recognition or money from the defendant. However. 129 21 . as it could avoid punishing the guilty. but rather on how justice is evaded by “settling” out of court. The Science of Right. 2010. Obviously. and defiantly avoid a fair trial to determine whether a party is guilty or not. On the one hand this process is good for society as. and mean that the right punishment will not be delivered to those who deserve it if they can afford to settle. The defendant is spared the possible loss of much more money as well as negative publicity. it clearly costs society less if out of court settlements are allowed to be carried out. on the whole. no matter the mitigating circumstances45. as is clear by now.Chapter 4 How is Sentencing in Modern Western Law Influenced by Economic Considerations? This chapter of the essay will discuss sentencing in Modern Western Law and how economic considerations influence it. it is clearly unjust according to this essay’s definition of justice.

com/2010-11-15/news/27622134_1_vodafone-international-holdings-bv-indian-taxauthorities-mutual-agreement-procedure 22 . which acts as a contract that enables the legal process to be broken off on the request of the two parties. the Italian government settled to pay 2 million Euro to seven citizens who contracted diseases from blood given to them via transfusion via a state hospital in March 201148 and the Dutch government. which. is a form of contract which allows a settlement to be made in the midst of a trial. because of a tax claim in November 2010 49.mu/story/12897-la-sentinelle-vs-government-towards-an-out-of-court-settlement. Indeed the practice of many western governments of settling out of court when they themselves are involved in certain legal cases proves how accepted the act of settling is within western legal systems.org/2011/03/italy-to-pay-e2-million-in-blood-contamination-settlement/ 49 http://articles. should a potential case not even go to court and the two parties make an arrangement between themselves. those ensured with a great deal of creating fair legislation as well as being just in themselves. with perhaps the most extreme example being the consent order. it seems more common to settle out of court in the common law system than the civil law system. Indeed. a piece of legislation in English law.indiatimes. such as England.economictimes. In some legal jurisdictions. there is such a thing called a consent order. After all.co.html http://www. perhaps because of the perceived importance of contracts and their negotiations within the common law tradition compared to the civil law. It is clear that the act of settling out of court is deeply enshrined in the modern western legal culture. for example France in November 2010 concluded a settlement with La Sentinelle47.contactlaw.defendant gives some kind of certainty which is written into the settlement contract.lexpress.html 48 http://www. enshrined in law. on the request of the communications company Vodafone attempted to set up an out of court settlement with India. At first glance it seems that these governments. it is quite difficult to pin point the entrenched legality of an out of court settlement. how could any enforcing body become aware of this and thus somehow force justice which would be applied to everyone else in that society to these two parties? Indeed why should a legislator want to control out of court settlements? It is in their interest to allow them so as not to clog up the legal system with unnecessary trials and also would keep the cost to the state down.uk/negotiation-and-out-of-court-settlement. However. Many governments in the west offer out of court settlements themselves. thus ending the trial and putting the settlement first46.humanrightseurope. are content to overturn the true course of justice as would be the case should all cases which should or have come to court would by cutting them short and 46 47 http://www.

then justice is done. Only rich parties are able to settle out of court. but is this because of economic considerations? Indeed it is terribly difficult for a government to legislate against such agreements. especially small claims. there is a gross inequality between rich and poor. Coupled with the fact that the damaged party could have a compromise forced on them. If the Italian government therefore wished to set an example of allowing justice 23 . settlements might be satisfactory enough to the damaged party that they accept them. However. Likewise. then the damaging party would not be properly punished. Part of a punishment is the public recognition of a crime being committed. in the arrangement of settling out of court. but not necessarily just. they either need to accept the settlement because of fear of risk of losing the case or because of other economic reasons such as not being able to afford to keep the case going. it would be able to evade legislation designed to counter such acts. because as being less wealthy. as many of them may not even become publicly known. would not have to recognise that they did wrong in the official eyes of the law would mean that they would not be punished according to their crime. a Kantian response to this would be in that the crime is then not being publicly acknowledged as a crime. Justice is certainly being marginalised by the existence of out of court settlements. but cut short because of the out of court settlement. The example used here involves the government of Italy against seven of its citizens. This would be much easier to control as a case which has already entered the judicial process would be known to the authorities. Therefore. amongst others might say. and so as it would no longer be in anyone’s interest to publicise the settlement. This means that justice was almost about to be served. the fact being that the court cases was an appeal. However. whereas poorer parties do not have this option available to them. This essay shall concern itself with an example in which justice could have easier run its course. But can it not be said that if both parties agree to something then this is fine and a form of justice? The libertarian. if both parties come to an agreement and are not coerced into it. as the rich settling party can often take advantage of the economically weaker party in order to avoid justice in its entirety being done. Robert Nozik. thus denying justice be done.offering a settlement themselves. The fact that those parties who can pay for traditional justice to go away. and was in itself almost at the point of coming to a decision. legislation could be created to stop cases which are already in court from being dropped and settled outside of court.

4. The compensation was taken. which was refused by the state. whilst receiving the blood they required to survive at an Italian state run hospital. The applicants then took the Italian state to court in the European Court of Human Rights for violating Article 2 and 14 of the European Convention on Human Rights52 among other things.pdf 52 Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. seven applicants.N and others vs.N. Italy application no. they contract HIV.codexpolitics. ending in the Italian court of Cassation. First the applicants asked the Italian state to give them recompense for the damages that they incurred. However. as well as an almost four year trial which had several long periods of apparent inactivity within its boundaries. 15/03/2011 24 .nl/SIM/CaseLaw/hof.+Italy+15. before the court was able to reach a complete decision.XI.N and others vs.000 and 500. However.com/codex/contents.N and others vs. Italy50. it also could have refrained from cutting the case short. 15/03/2011 http://www. Italy application no.law. article 2. the Italian state went back on its original stance and offered compensation to the applicants of between around 300.nsf/vWebAccessDocuments/5D273CA946329F11C2257854005C5F65/$file/Chamber+Jud gment+%28Just_Satisfaction%29+G.2011.+and+Others+v.nsf/233813e697620022c1256864005232b7/656cf1f5916f3dc2c125767f00484c7e?OpenDocumen t 54 European Court of Human Rights. and 50 51 European Court of Human Rights. going through each of the allegations in turn first ruled out several supposed infringements which they believed were baseless. 1/06/2010 53 http://sim. the applicants were still no better off other than an order that non-pecuniary damages were to be paid to the applicants of negligible amounts (8. However.to occur. 43134/05.1950.000 Euros on the condition that the case was to be dropped and a promise of no further appeal be taken 54. The example this essay shall use to illustrate how economic considerations are plainly undermining justice in modern western law is the aforementioned case of G. The court. 43134/05. the court believed that article 2 and 14 were indeed broken by the Italian government53. 11 and No.000 Euros each)51. G. including one infringement of article 2 of the European Convention on Human Rights. G. Then after going through the national Italian courts.uu. Rome. this was brought up by the applicants because they were treated differently to haemophiliacs who had also suffered in a similar way and had received an out of court settlement which they were not entitled to because they were sufferers of thalassaemia. Article 2 regards the right to life and article 14 regards discriminatory treatment. 14.03. who either themselves or a later deceased family member suffered from an illness which required that they get regular blood transfusions or suffer dire consequences. because the Italian state purposely took unreasonably long times to provide a civil remedy. In this case. ranging up to ten years depending on the applicant.

and likely less than the European Court of Human Rights could have demanded under article 4155 did economic considerations mean that justice was marginalised in this case. Only when it was unavoidable. even after it was proven that they were in the wrong. By settling it out of court means that Italy escaped official recognition of wrong doing in this case. it is not hard to draw that conclusion. by both paying only when it was unavoidable.so a chance of justice was snatched away before it could be dealt. settling out of court. by offering an out of court settlement when the writing was on the wall only. is based in economic considerations. Italy seemingly had no intention of serving justice. which they decided not to pay. they could be liable for not upholding more rights of the applicants. But is it certain that economic considerations are responsible for the marginalisation of justice? In this case. The Italian state then allowed three whole complete domestic trials go ahead without paying the compensation. and then on condition that the further parts of the case not be pursued. as already described. This case perfectly illustrates how economic considerations through the medium of out of court settlements undermine justice. thus safeguarding their future situation. In this way. This in itself is not an economic consideration. According to this essay’s definition of justice. the crime committed is not being punished fittingly. indeed. that being Italy giving compensation to the applicants. Indeed it may be asked why the Italian state didn’t just wait until the court made its final decision and then pay any compensation demanded. It cannot realistically be argued that the Italian government was not earlier aware of their wrong doings and on realising their mistake decided to pay up. It was not until eighteen years later. The Italian state was at first asked for compensation by the applicants. However. By offering this out of court settlement. Secondly. as it waited so long in giving the applicants what they deserved. it is a kind of opportunistic loss cutting strategy. being more a consideration of reputation or international and national standing. Italy didn’t wait for two reasons. apart from the negligible non-pecuniary damages.nl/verdrag-tot-bescherming-van-de-rechten-van-de-mens-en-de-fundamentele-vrijheden-rome-04-11-1950/artikel41 25 . Firstly. did Italy evade any actual guilt being placed upon itself. 55 http://lexius. as the fourth full trial was about to conclude against the government strongly. it is not being punished at all. did Italy pay. it is possible that as some of the case was still under discussion. Indeed the punishment in this case. that the Italian government decided to act and pay a more reasonable amount.

Here the punishment is not fitting the crime. Likewise is Kant’s criteria for justice that this essay is concerned with broken as Italy does not even accept guilt. as less money was lost in compensating the applicants.html 26 . because of overfull prisons. This is a clear example of economic considerations. or Italy would have just waited for the verdict to be reached and then paid after. 56 http://www. a utilitarian decision is made which marginalises the justness of the decision. as it does not let the court make its verdict. that being the economic welfare of the Italian state. as it paid less before a judgement could be made.was stalled for a social good.martinfrost. the criminals. according to this essay’s definitions of justice and economic considerations. Although the combined amount of just over two million Euros is a drop in the ocean for such a large economy. Therefore. namely the cost of building sufficient prisons to hold criminals against the much cheaper and indeed revenue making punishment of taking money from the criminal or forcing them to do work which will enhance social welfare such as cleaning streets and parks. Italy escapes being punished fittingly for the crime it committed and the Italian states general welfare is higher. should the prisons be less full. Settling out of court is not a unique phenomenon in the sentencing in modern Western law. and certainly Italy is not punished as much as it would be should the verdict be made. but because of the additional costs. many convicted criminals are not given the sentence that they deserve but rather fines or community service as a punishment56. it is still prudent for Italy not to have paid anything until absolutely necessary. It is often reported in the media of how. Indeed as Italy likely paid less than it should have done should the judgement have come to pass. would be imprisoned. the measurable economic welfare of Italy was eventually better off than if the court had made its eventual judgements and forced Italy to pay compensation for the full range of charges brought against it by the applicants.ws/htmlfiles/scotnews11/110126-soft.

is beset from all sides by considerations which would make justice second to themselves. Mills assertion taken earlier in the essay that “An action or consideration is 57 58 European commision for the efficiency of justice.. The utilitarian principles of John Stuart Mills which were earlier set out in this essay are certainly somewhere within the workings of the legal systems of the West. and. p. and in the parliament buildings across the Western World.Conclusion The citizens of the Western World are perhaps not mistaken when their faith in their states’ability to administer justice is dwindling so sharply in recent times. Being a reasonable consumer. 129 27 . they suffered the consequences. 2010. although being the symbol of justice universally throughout the Western World. Because however. they did it by exploiting their market position and sharing information. these other considerations often do take precedence. Perhaps it is not because of Kant’s idea that. “no law should be made to promote a good within society. Edition 2008. it is likely that they did not consider this to be unjust. as the case of the Public schools shows. despite the good society can gain from the law” 58 was broken when the UK and the EU decided to legislate against cartels and monopolies. namely economic considerations is playing its own part in marginalising justice in the modern Western World. Although justice is expected to be done in the court house when prosecution and sentencing are meant to be impartially carried out.. carrying her symbols to weigh the support and opposition of each case in one hand and the double edged sword of justice and reason in the other. The Public schools were punished for doing what capitalist society demands of its organisations. to maximise profit. efficiency and quality of justice. 2008. that they were indeed punished more than justice would demand of them. This essay is not extensive enough to discuss the plethora of reasons which could determine these believes. 69-70 Immanuel Kant. in reality. that those European citizens asked by the European Commission for the Efficiency of Justice in 2008. where just laws are supposed to be formed. European judicial systems. It seems that despite Justitia. but has made a convincing case for how one aspect. P.. as found in the European Commission for the Efficiency of Justice57. The Science of Right. is money. faith declined in justice in their countries. This essay has convincingly shown that one consideration which certainly plays its fair share in eroding justice. However the fact remains that a law was made to promote a civil good.

to pay for services which. As already stated. simply because they have earned more money. The fact that we must pay inheritance tax on the possessions of our relatives when they die. Therefore as the measurable welfare of the consumer would have decreased if the twenty schools who raised their prices after setting prices with their colleagues. p. The Dutch policy of gedogen is an extreme example in the West of economic considerations staying the long arm of the law. Kant would be dissatisfied with this outcome.right in so far as it increases the general measureable welfare of society and wrong if it likewise decreases the measurable welfare of society” 59 took precedence in the minds of the legislators when making the Competition Act. and be no more nor less than that. Of course not every piece of legislation made in the West is fundamentally flawed. and this is because of the massive saving the Dutch state is making. Amsterdam Law Forum. An Economic Perspective on the Legislation Debate: The Dutch Case. at most. London. Here economic considerations. However. and that the richer people in a state often have to pay more taxes than those less well off. 43 61 Immanuel Kant. but utilitarians such as Mill would believe the right decision was being made. However the issue explored in this essay is not an isolated case. simply because it is deemed unfair that this wealth should be concentrated fully. 9-10 Martijn Adriaan Boermans. However the prescribed punishments are not being administered. 129 28 . no matter the mitigating circumstances”61. the legislators taking greater heed to economic considerations than the justness of the law they are creating. With 850 million Euros a year being saved by not enforcing this law60. it may seem reasonable that the Opium act is not enforced. the fact remains that this law was created and now the criminal actors are not being punished and “The punishment for committing a crime should fit the crime. they use just as much as the less well off people. show that the social welfare of the majority is more of a priority than Kantian justice in modern Western states. p. Justice is thereby marginalised in this example by economic considerations. 2010. Despite the fact that this essay is restricted by space to explore more deeply other pieces of prosecution and punishment strategies in Western states which exhibit economic 59 60 John Stuart Mill. The Science of Right. utilitarianism triumphed in the face of Kantian justice. took precedence over justice and so economic considerations prevailed. 1863 p. Utilitarianism. namely the monetary welfare of the consumer. taxes are a glaring example of how utilitarianism and social goods triumph because of economic considerations in the face of Kantian justice. This is not an isolated example of course.

considerations marginalising justice. Other examples of prosecution strategies which may be easily recognised. there is yet too little information as to the social good incurred by the non enforcement. organisations and indeed states could avoid being sentenced by a court and indeed how the legal system made provisions for this evasion of justice in the form of out of court settlements. and bring in a bigger catch of major criminals. However. at least for the criminal receiving the plea bargain.omroepbrabant. However.aspx 29 . being the act of offering a criminal a reduced sentence if they work with the prosecution in order to bring in and prosecute more and perhaps more dangerous criminals. such as Tilburg of the smoking ban in cafés. and thus. the populations faith in the legal system of their state remains high. and thus they would still be active. Kant is right in pointing to the fact that the criminal who receives the plea bargain still goes free and does not receive their fair share of justice. although more justice would be done to those who it would perhaps be impossible or more difficult to prosecute. in a way.nl/?news/105094852/Tilburgse+kroegen+negeren+rookverbod. Plea bargaining. Because it is much cheaper to give this offer to a minor criminal. bars and clubs62. By bringing more cases to court. is that of plea bargaining. which although perhaps contributing to justice. and indeed many institutions ignore the ban. The last factor within Western law which this essay discussed in order to illustrate how justice is marginalised by economic considerations is that of sentencing. due to the recentness of the laws implementation. Indeed. it does contribute to justice. it could be considered that plea bargaining brings more justice to society. The population of a state need to see that justice is working. and more successfully prosecuting the bigger criminals with the evidence of those who accept a plea bargain. some Western countries go further and provide special legal 62 http://www. On the one hand. despite not being sufficiently examined. is still an example of economic considerations marginalising justice. Indeed. This is perhaps not carried out because of the costs it would incur on society. Here it was shown how individuals. it is an accepted practice. then this criminals would not be brought to court and prosecuted successfully. If justice was strictly interpreted as Kant said. should help complement the example in this essay and only prove that it is not a standalone case. and plea bargaining gives this illusion that justice is strong. another example of a similar case in the Netherlands is the non enforcement in certain cities.

many laws still have a basis in justice. the so called English Consent Order. Earlier it was briefly outlined how factors irrelevant to the criminal and the crime committed. and the tendency for this to translate into more community service work and fines. This is yet another example of the infiltration and subversion of Kantian justice in the face of economic considerations. this is not the only facet of sentencing within the Western legal systems which is affected by economic reasoning. it seeming more likely that competition law is much less questioned by a nations populace than plea bargaining and in turn this is much less questioned than the giving of fines to criminals for whom there is no space inside prison. However. as the European Commission for the Efficiency of justice is testament to. with so many economic considerations pushing justice into second place. to the citizens of the West as well as its leaders. Despite the tendency of this essay to illustrate how justice is being marginalised. such as the state of a prison and how full they are. This essay has. Again. Yet justice remains important. Whether this is in all cases viewed as unjust by the citizens of the Western states is questionable. Although it cannot be said that economic considerations alone have caused this faith in justice to evaporate. If looked at in terms of societies welfare. This essay did not set out to convince that the cause of justice is lost in the modern Western world. demonstrated that justice constantly faces the threat of other considerations. all the main examples of this essay do indeed maximise this very aspect.contracts in order to formally break off a court case on the request of the two parties concerned. this essay has shown how justice is marginalised by the increasing dominance of economic considerations. namely economic considerations and those of promoting a social good and social welfare. however. and thus can be used as a partial explanation for the dissatisfaction of so many Western citizens. many prosecutions are just and successful and indeed many sentences are determined before any outside interruption can be formed. are considered when sentencing a criminal. 30 . it is no wonder that many European citizens faith in justice is dwindling.

Edition 2008. A Beelen. March 2004 D.de Waal. Amsterdam Law Forum. European commision for the efficiency of justice. F. Forgotten Books. Utrecht 2007 Explaining attitudes towards the justice system in the UK and Europe. White. 14 September 2005 M van Laar. Nijkamp. University of Maryland and RAND corporation. 2010 Karl Marx and Friedrich Engels. werkdocument 102. The Science of Right. London. 2008 Oxford English dictionary. Van de Gouwe. Volume xxii. efficiency and quality of justice. EINDRAPPORT PARLEMENTAIRE ENQUÊTECOMMISSIE BOUWNIJVERHEID. Gedogen door bestuursorganen. A Kantian Critique of Antitrust: on Morality and Microsoft. Mark D. volume 2. T. An Economic Perspective on the Legislation Debate: The Dutch Case. S. White. C. Journal of Private Enterprise. Vermeer. What Durgs policies cost. Coffee shops in Nederland 2007. Trimbos insituut 2009. Plea Bargaining and Agreement in the Criminal Process. enquete bouwnijverheid. Birmingham university. Immanuel Kant.Bibliography B. Edmonds 2002 John Stuart Mill. Estimating government drug policy expenditures. spring 2007. A Comparison between Australia. A van Gageldonk. E Croes. 2008. Dekker. June 2008. Het Drugsbelied in Nederland. van der Meer. Intraval Groningen 2007 Martijn Adriaan Boermans. ‘A Kantian critique of neoclassical law and economics’. Tweede Kamer der Staten Generaal. T Ketelaars. 2001-2002 31 . Trimbos Instituut. Boll. Peter Reuter. Maas. Vertrouw in de rechtspraak. report on the Drug situation 2006. Bury St. Forgotten Books 1863 version. J W. Van de Walle. London.R. Utilitarianism. . Review of Political Economy.Theoretische en empirische verkenningen voor een monitor. 28 244. Bieleman. R. Ministry of Justice Research Series 9/08 Birmingham. M van Ooyen-Houben. P. MD USA. special issue. European judicial systems. R Meijer. Amsterdam 2004 M. The Communist Manifesto. Den Haag. Druck Diplomica Verlag GmbH Hamburg 2009. 18. E de Bie. Kluwer bv Deventer. 2006 Mark D. Den Haag. 2010. G Cruts. school of Public Policy. Raine. England and Germany.

03.aspx http://lexius.ws/htmlfiles/scotnews11/110126-soft.mu/story/12897-la-sentinelle-vs-government-towards-an-out-of-court-settlement.dutchnews.lexpress.org/2011/03/italy-to-pay-e2-million-in-blood-contamination-settlement/ http://articles.uu.rechtspraak.antitrustlawblog.N.contactlaw.gov.2011.telegraph.html http://sim.com/codex/contents.martinfrost.nl/verdrag-tot-bescherming-van-de-rechten-van-de-mens-en-de-fundamentele-vrijheden-rome04-11-1950/artikel41 http://www.gov.omroepbrabant.co.uk/negotiation-and-out-of-court-settlement.codexpolitics.+and+Others+v.law.nsf/233813e697620022c1256864005232b7/656cf1f5916f3dc2c125767f 00484c7e?OpenDocument http://www.uk/media/pressrel/Documents1/ofgem4-190109. 15/03/2011 http://www.webklik.omroepbrabant.uk/OFTwork/cartels-and-competition/ca98/decisions/schools http://www.oft.nl/news/archives/2006/12/police_volunteers_to_takeover.com/2005/12/articles/article/leading-uk-private-schools-accused-ofanticompetitive-behavior/ http://www.html http://www.aspx http://www.html http://www.+Italy+15. 43134/05.nsf/vWebAccessDocuments/5D273CA946329F11C2257854005 C5F65/$file/Chamber+Judgment+%28Just_Satisfaction%29+G.php http://partydrugs.nl/SIM/CaseLaw/hof.economictimes.nl/Naar+de+rechter/Kosten+van+een+procedure/Griffierechten/ European Court of Human Rights.humanrightseurope.co.http://www.nl/page/gedoogbeleidnederland http://www. G.N and others vs.nl/?news/147175992/Te+veel+softdrugs+in+coffeeshop+Eindhoven.com/2010-11-15/news/27622134_1_vodafone-internationalholdings-bv-indian-tax-authorities-mutual-agreement-procedure http://www.uk/news/uknews/1535860/Police-paperwork-costs-hit-625m.indiatimes.nl/?news/105094852/Tilburgse+kroegen+negeren+rookverbod.pdf 32 .pdf http://www.html http://www.ofgem. Italy application no.

1992 Conventions Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No.1950. 11 and No. UK government http://www.gov.uk/ukpga/1998/41/section/18 - Treaties Treaty of Maastricht. 1/06/2010 33 .XI.Laws Dutch Opiumwet 1928 UK Competition Act 1998.legislation. article 2. 4. 14. Rome.