CHAPTER 5

Law & Justice

INTRODUCTION TO LEGAL THEORIES
(LAW034)

PREPARED BY
MADAM NAMIRAH AKAHSAH
 LEARNING OUTCOMES
At the end of the lecture, student must be able to:
1- Describe basic knowledge of the general idea behind principle of
justice.
2- Apply the basic knowledge of general idea behind social and natural
justice.
3- Apply academic and critical thinking pertaining to characteristics,
ideas, purposes and division of justice;
4- Demonstrate basic relationship between law and justice;
5- Apply issues and problem pertaining justice in society.
 STRUCTURE OF THE
LECTURE
1. Definition of Justice
2. Purposes and aim justice
3. Relationship between law and justice
4. Classification of justice: Roscoe Pound &
Aristotle
5. Natural Justice: Nemo judex in causa sua & Audi
alteram partem.
WHAT IS JUSTICE?
HOW YOU
EVALUATE JUSTICE?
IS IT JUSTICE?
 1.
WHAT IS JUSTICE?
1.
DEFINITION BY JURIST
 “
concept of moral rightness based on principle of ethics, rationality, law, natural law, religion, equity of fairness, as well as the
administration of the law, taking into account the inalienable and inborn rights of all people and individuals to equal protection
before law of their civil rights, without discrimination on the basis of race, gender, sexual orientation, gender identity, national
origin, color, ethnicity, religion, disability, age, or other characteristics and is further regarded as being inclusive of social justice.
 By Jurist :
Hans Kelsen : John Rawls
▧It is impossible to answer the ▧Justice is the first virtue of
question of what justice is? It can social institutions, as truth is of
mean do good avoid evil, to each system of thought.
his own. Therefore, there has been
suggested that the best way to
understand the meaning or idea of
justice is by distinguishing the
different senses in which the word
justice is used.
 By Jurist :

Thomas H.L.A Hart :

Acquinas :
▧All acts of virtue can pertain to
justice, in so far as it directs man
to the common good.
▧Justice as a shared concept
i.e. everybody wants justice
seen and done.
 By Jurist :
Ulpian :
▧The basic principles of the law is
“honeste vivere alterum non laedere,
suum cuique tribuere” which means
law should cause one to live
honestly, not to harm another and
to give to each person his or her
due.
▧The maxim reflects the need for the
law to be moral and just, rendering
each man his rights and due.
Aristotle:
▧Justice as giving one what is
due to him and giving one what
is his own.
▧The act refraining from
pleonexia (gain something for
advantage for oneself, deny
other rights and property).
 Others:

Curzon: Ross : Hammurabi :

▧Justice is the impartial ▧ Justice is the correct ▧Code of Hammurabi
resolution of disputes application of law, as declares that justice is to
arising from conflicting apposed to arbitrariness appear in the land, by
claims by not favoring by making decision based destroying the evil and
one from another, not on rule and law of the wicked so that the
discriminating, bias or evidence and trial, not by strong might not opress
prejudice. mere suspicion or the weak.
opinion.
JUSTICE IN ISLAM

‘Adl’ - Place
something in its rightful place,
equal treatment to others.

Supreme virtue as it stands

next in order of priority to
belief in the oneness of god
and truth of Prophet
Mohammad.
 Harvard University,
the highest ranking
university in the world and
certainly the top for law, has
acknowledged that a verse
of the Holy Qur'an is one of
the most greatest
expressions of justice in
history.
PURPOSE & AIM OF
JUSTICE
1. JUSTICE AS EQUALITY
2. JUSTICE AS DESERTS
3. JUSTICE AS MORAL/NATURAL
ENTITLEMENT
 1. JUSTICE AS EQUALITY
Justice as equality means that all people should be
treated equally unless there is some significant
differences between their cases.
Thus, justice and equality require rules to set out how
classes of people should be treated.
E.g:-
1.All murderers will be hung
2.All citizens should be given right to vote.
3.All children should be given proper education.
4.Insane adult can plead the defence of unsoundness of
mind in criminal case.
5.A contract entered by minor is void.
• To ensure equality, the doctrine of stare decisis
(judicial precedent) is followed in the courtroom.
i.e. similar cases will apply similar legal principles to
ensure consistency and equality in decisions.

• Justice and equality require rules, setting out how

categories or classes of people should be treated.
• Article 8 Federal Constitution :
“All are equal before the law and entitled to equal
protection. No discrimination against citizen on the
grounds of race, religion, gender, place of birth etc.”

• Hart – principle of equality is an underlying essence

of justice. He emphasizes on the central element of
treating like cases alike and different cases
differently.
 2. JUSTICE AS DESERTS
 It means people ought to get what they justly
deserved, positively or negatively.
 A person is said to obtain justice if he gets whatever it
is, he is entitled to under the law or suffers whatever
penalty the law provides for him.

 Mill states that every person must obtain that which

he deserves and must not be given anything including
punishment which a person does not deserve.
 Spencer – each individual ought to receive benefits
and evil of his own nature and consequent conduct.
 The Principles of Justice as deserts is lex tortiloris or law
retaliates. Islam and Christianity recognised some extent the
principle of retribution.
 It is the right of heirs of the murder victim to demand for the
execution of the murderer.
 Surah Al-Baqarah:178 … “free for free, slave for slave..”
 Bible Exodus, Chapter 24 “an eye for an eye, a tooth for a
tooth”.

 Other principle justice as deserts is treating like for like,

good for good, and evil for evil – principle of jus talionis – to
inflict a just and proportionate degree of retribution.
 Eg: Principle of Qisas in Islam.
 3. JUSTICE AS MORAL
ENTITLEMENT
•The theory of justice as moral or natural entitlement was
introduced by Aristotle. – goods should be distributed to
individuals on the basis of their relative claims.
•A just system of law is one which distribute ‘good things’ so
that good things are in the hands of those who:
(i) are entitled to receive;
(ii) have the best claim; or
(iii) have rights over the good things
Eg. The rich giving out to the poor.

Thus, it concerns with everything that is morally right and

good.

•Goods – describe by Aristotle to be at which all things aim

•Rawls lists down goods which he considers primary goods:-
oBasic rights
oFreedom of speech and assembly
oFreedom of the press
oFreedom of religion
oFreedom from arbitrary arrest

•Question ? How to distribute these goods justly ? On what

grounds ?
•Finnis sets out the criterions in order of importance as
follows :-
i.Need
ii.Function
iii.Capacity
iv.Desert and contribution
v.Risk taking
THE RELATIONSHIP BETWEEN
LAW AND JUSTICE

LAW & LAW MAY BE JUSTICE

JUSTICE ARE JUST OR ACC TO
SYNONYMO UNJUST LAW
US

Law may discriminate

people, unjust
distribution
 (1) LAW AND JUSTICE ARE
SYNONYMOUS

▧Aristotle – ‘Justice exists only between men whose

mutual relations are governed by law and law exists for
men between whom there is injustice.
▧Justice without law can result in total lawlessness and
arbitrariness.
▧Law and justice using interchangeably.

▧Eg: Court of law equals to administration of

justice/court of justice.
 Continued ..
▧ Why we used the idea of justice as synonymous with law?
▧ Answer : the central concerned of justice is that of ensuring that
people receive what they are entitled to and what they deserved
and its appears to be the CENTRAL CONCERN OF THE COURT

▧ even law is not only source of justice, law is treated best vehicle
to uphold justice.

▧ BUT, Law – designed as tool of justice whereas equity

functions as the eyes of law.
 (2) LAW MAY BE JUST OR UNJUST
▧HLA Hart – ‘we think and talk of justice according to law and
yet also of justice and injustice of laws’ (The Concept of Law) ;
Human law are either just and unjust law.
▧ John Stuart Mill - There are some law that is unjust -
Discriminatory law – regarded as unjust on the ground that
human beings should be treated alike.
▧Hart – all claims must be considered even two competing
alternatives, law may defend which is public good or common
good.
▧Aquinas – explains that human laws were just when they
served the common good, distributed burdens fairly, promoted
religion.
▧Aquinas – law may be unjust in 2 ways:
1. contrary to human good
2. opposed to divine goods as we ought to obey god
rather than men.

▧Finnis – 4 types of injustice :

1.Improperly used of authority
2.Ultra-vires act / decision
3.Authority not perform according to law
4.Unjust distribution
 (3) JUSTICE ACCORDING THE LAW
▧Justice achieved by following the rules & procedures involved.
▧Though we cannot apply the same judgment in every cases because
of its different facts, but we must treat every case in the same way
using the same rules and procedures of hearing and taking evidence.
▧Hart – conformity law, though an important aspect of justice, is
not conclusive of the question of justice because e law itself may be
unjust.
- question of justice involve 2 levels:
1.All the level of law itself when we question its justness – is the law
just?
2.At the level of its application, whether law properly applied or not?
▧ Justice according to law is justice which is done as a
result of the application of law. - legal justice.

▧ Kelsen – justice conformity to positive law, in

particular conformity with statute.
▧ Mill – it is unjust to deprive person liberty, property
or other thing belongs to him by law, right under law
must be respected, violation injustice.
▧RH Hickling – it’s really naive to consider law must
always be : just, efficient, infallible.
 CLASSIFICATIO
N/
DIVISION OF
JUSTICE
ARISTOTL ROSCOE
E POUND
 DIVISION OF
JUSTICE
ARISTOTLE
I. LEGAL JUSTICE AND EQUITY
II. DISTRIBUTIVE AND CORRECTIVE JUSTICE
III. SOCIAL & POLITICAL JUSTICE & NON
POLITICAL JUSTICE
IV. NATURAL & CONVENTIONAL JUSTICE
 LEGAL JUSTICE
• Impartial application of general
legal rules.
• Applies through the courts using
the due process of law.
• Strict compliance with rule of law.
DISTRIBUTIVE JUSTICE
• There has to be equal distribution
of goods among equals in society.
• Concern with allocation of rights,
duties, burdens among the society.
• It inclines the representative of
public authority to distribute
honours, employment and official
positions according to the merits.
EQUITY
• Supplement to the law as a method
restoring the balance of justice.
• Attempts to remedy some of the
defects in common law or statute.
CORRECTIVE JUSTICE
• To restore equality when this has
been disturbed.
• Known as remedial justice.
• Administered by court or other
organ invested with judicial/quasi
power
 SOCIAL / POLITICAL JUSTICE NON-POLITICAL JUSTICE
• Its relationship which exists • Non political justice exist between
between citizen and a free state citizens, characterised by equality.
(govt).
• It characterised by equality, to
balance the power of the
government and citizen.

NATURAL JUSTICE CONVENTIONAL JUSTICE

• Introduces the principle of audi • Different from one state to another
alteram partem and rule against state according to ideology of
bias. particular state.
• Regulates administrative action,
quasi judicial proceedings and
sentencing procedures.
DIVISION OF
JUSTICE
ROSCOE POUND
 SUBSTANTIVE JUSTICE
▧It refers to the substance of the matter involved in a dispute.
▧It concerns the rights, privileges, duties, powers , liabilities etc
of the parties to a dispute. ----- become substantive law and justice.

▧The substantive law that will be made must have jural

postulates to becomes just law.
▧Roscoe Pound – each society must have its own basic
assumptions which serves as foundation of the society. These basic
assumptions from the jural postulates of the society. Its implied
rather than expressed.
▧This assumption may be called as jural postulates (basic
assumption and legitimate expectation) of the legal system of that
society.

▧Roscoe Pound has mentioned 5 examples jural postulates as

follows:
 PROCEDURAL JUSTICE
▧ It refers to formal procedures and formality used to make
decisions. Its formality to be followed under a legal system.

▧It is a psychological concept i.e. people’s perception of the idea

of fairness of procedures used in making decisions.

▧No one should be above the law and those who administer the
law should do so without prejudice.

▧Procedural justice is the technical part of the law which provides

rules, principles, guidelines on how to apply the substantive law.
▧It concerns the people who enforce the law on how to carry out the law.

▧ Its main aims are on the need to be accurate in carrying out the law and
to avoid abuse of power because procedures come in a set of standard.

▧The Judiciary and Enforcers will ensure that laws are carried out in
accordance with fair and proper procedures.

▧ Eg. Criminal Procedure Code, Rules of High Court, Subordinate

Courts Rules.

▧The purpose of procedural justice are to supply a uniform standard to

the people who enforced the law, all people are treated under the same
procedures, to avoid the abuse of power.
 DISCTINTION BETWEEN
SUBSTANTIVE & PROCEDURAL
JUSTICE
SUBSTANTIVE PROCEDURAL

It is the body of law that

Formality to be followed
DEFINITION consists the ‘Jural
under legal system
Postulates’

A guideline to apply
To determine/substantiate
AIM substantive law to avoid
one’s claim or guilt
abuse of power

Use and applied by the

Used and implement by
USAGE people who enact the law
enforcer or authorized body
(the legislature)

SOURCES From philosophers From morality

 ACHIEVING
JUSTICE
NATURAL
JUSTICE
 PRINCIPLE OF NATURAL
JUSTICE
▧ Natural justice is procedural safeguard against improper exercise
of power by a public authority. In the modern era of welfare states
the administration plays a pervasive role and enjoys drastic powers
to interfere with the rights of the person and property of individuals.

▧ NJ has two main components:

1.the rule of hearing or audi alteram partem, i.e. the rule that no
one is to be condemned unheard; and

2.the rule against bias i.e. nemo judex in causa sua, meaning that
no one may be a judge in his own cause.
 1. AUDI ALTERAM PARTEM
▧The rule requiring fair hearing (audi alteram partem) has two
important components – notice & hearing.

1. NOTICE

• before initiating adjudication proceedings, the party

concerned should be given notice of the case against him
to enable him to defend himself.
• Notice is regarded as sine qua non (condition precedent)
of the right of hearing
• Content of charges should be informed
• Sufficient time must be given to make defence
 2. HEARING

Article 135(2) of the Federal Constitution lays down that no

public servant shall be dismissed or reduced in rank without being
given “a reasonable opportunity of being heard”
Reasonable opportunity of being heard includes the following
elements:

i.the adjudicating authority should disclose all information, evidence or

material which the authority wishes to use against the individual concern in
arriving at its decision;
ii.the authority should receive the evidence and all relevant material which
the party concerned may wish to produce before in its defence;
iii.the authority should give to the individual concerned an opportunity to
rebut the material against him
iv.the adjudicator must hear both sides. He must not hear only one side
and in the absence of the other side.
 ▧Surinder Singh Kanda v The Government of the Federation of Malaya
(1962) 28 MLJ 16
▧Facts -
▧Officer Surinder Singh Kanda " was supplied with a report of the board of
inquiry. The question arose whether the hearing by adjudicating officer was vitiated
by Insp. Kanda not being given any opportunity of correcting or contradicting the
report.

▧Held –
▧If the right to be heard is to be a real right which is worth anything, it must carry
with it a right in the accused person to know the case which is made against him. He
must know what evidence has been given and what statements have been made
affecting him: and then he must be given a fair opportunity to correct or contradict
them
 2. NEMO JUDEX IN CAUSA SUA
▧ The adjudicator should be impartial and neutral and
be in a position to apply his mind objectively to the
issue he has to decide

▧ The principle that bias disqualifies an individual

from acting as an adjudicator flows from two
fundamental maxims:
1. a man should not be a judge in his own cause
2. justice must not only be done but be seen to be done.
 ▧ Dimes v. Grand Junction Canal
▧ Facts - A public limited company filed a case against a landowner in a
matter largely involving the interests of the company.

▧Held - The Lord Chancellor who was a shareholder in the company heard
the case and gave the desired relief to the company.
▧The decision was, however, quashed by the House of Lords because of the
Lord Chancellor's pecuniary interest in the company.
▧Lord Campbell in his opinion emphasized, "While no one could suppose
that the Lord Chancellor was in the remotest degree influenced in his
decision by his interest in the company, nevertheless, it was necessary that
the maxim no one is to be a judge in his own cause be held sacred."
SOCIALJUSTIC
E
•Social justice - the distribution of advantages and
disadvantages in society.
•Social justice is really the capacity to organize with others to
accomplish ends that benefit the whole community
•It emphasis on justice has shifted from the individual justice
to social justice.

•Many people believe that social justice is an aim which

society vigorously pursue through its law.
•Eg:
 Govt should intervene to ensure that fair prices are
changed for goods and services. Suppliers are not
entitled to make excessive profits.
•David Miller – social justice concerns with the distribution of
benefits and burdens throughout a society.
•Also known as distributive justice because the advantages,
disadvantages, wealth, honors are distributed among
members society.
•Social justice also deals with matters such regulations of
wages and profits, the allocation of housing, medicine,
welfare benefits etc.

Do we have the right to demand that

each and everyone should be equally
prosperous or equally educated?
Or
We could only demand that equal
opportunity is given to achieve our goal
or desire?
 Thanks!

Any questions?