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Procedural justice and substantive justice 4 Flipbook PDF
Procedural justice and substantive justice 4
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Procedural justice and substantive justice
Substantive justice Common law: Rely on statutes (codes) enacted by the legislature, to express substantive law. The Supreme Court is the final arbiter. Socialist law: Codes reflect imprecision over specificity Civil law: Every crime and every penalty must be embodied in a statute enacted by the legislature. Islamic law: Codes reflect 3 categories, 1. Crimes against God (Hudud) 2. Crimes which require retaliation b the victim or family. 3. Acts condemned by the Sharia or Sunna.
Procedural Law: Deals with methods of enforcing legal rights and duties, specify how and when police cab make arrests and what methods can be used in trial and determine equitable remedies. Substantive Law: Defines your rights and duties. All rules of conduct for citizens. Defines offences like murder, theft, vehicular homicide, breach of contract and negligence. Procedural justice is very important aspect of justice. It requires that there should be a set of procedural rules to be applied uniformly to all. This implies rule of law and is based on the cardinal principle of nondiscrimination. On the contrary, there will be injustice to those who are subjected to tough procedure. It also requires that the principles of natural justice have to be strictly adhered to. For example, no one will be judge in his own case. Procedural justice also requires that the ‘due process’ rule must be followed. The due process rule requires that the person arrested will have to be produced before the court of the competent jurisdiction within the shortest possible time which is generally 24 hours. The person must have right to attorney and the case will be disposed of faster. It is deadly against detaining someone without any reasonable cause.
Lon Fuller’s eight inner moral principles (they are better known as procedural natural law): 1) Sufficiently general 2) Publicly promulgated 3)Prospective (applicable only to future) 4) Minimally clear and intelligible 5)Free of contradictions 6)Relatively constant, so that they don’t continuously change from day to day. 7) Possible to obey, and 8)Law made and law applied should be the same. It means that there should not be arbitrariness. Decision should be made based on the law
Substantive justice refers to the basis on which the society will be designed; the form of the government that we need; and the form of political institution that we really want. Substantive justice is in fact policy determination. For example, in a procedurally just society injustice can be perpetrated like apartheid was practiced in South Africa (there former official policy) and untouchability was practiced in India, but they were substantively unjust. Justice demanded that in the society all should have equal opportunity of human relations and human behavior. If this cannot be ensured, the society might be procedurally just but there will not be substantive justice.
Bentham: Bentham was a utilitarian. As a utilitarian he wanted to achieve ‘ the greatest happiness of the greatest number’. Towards achieving this, he suggested for three things to be practices -Subsistence i,e., all must get subsistence so that they could survive. -Subsistence should be in abundance. It means people should have enough so that they do not face any kind of scarcity. -There should be protection. So that what a person got is guaranteed that it will remain with him.
In the absence of the third one, the first two will not have any meaning or they cannot be ensured. Bentham’s utilitarian theories suffers from some inherent deficiencies. They might result in injustice. For example if in a society there are two classes rich and poor. The rich class is in majority. If something is taken from the poor class and given to the rich class, Bentham has no problem, because the majority is still happy. (Rawls criticized by saying that this is unfair) According to him utilitarian's ignored the distinctness of persons. If something is taken from the poor class and given to the rich class that is in majority utilitarians will have no problem as the majority is still happy. But this will be an unfair situation. Justice demands that the poor class must get things, rather than anything is taken from them. The emphasis of utilitarianism is on welfare of the majority rather than fairness. Also utilitarianism seeks to define the right in terms of good. For them, anything that is right brings about good to the people. They do not dispute unjustly obtained happiness. It can be noted here that for utilitarians good precedes justice. Rawls opposes this notion.