Dissertations on Justice - What is Justice ? Part 1

Dissertations on Justice

What is Justice?

Part I 

 If I were to stand at the centre of any busy landmark of a major city anywhere in the world and were to ask a randomly selected sample of 10 people each one individually to define his or her perception of Justice, I am sure I will get 10 different answers that may vary from one extreme to the other.  This is understandable and may indeed be universal.  However, if I were to ask the same question to 10 victims of crime or civil wrong (tort) again I will more likely than not get 10 different answers, but this time these answers will be qualified in accordance with the severity of the impact that civil wrong or crime had on the individual, his or her family, close friends, and his and her world at large especially financial well-being.

Where do we go to get justice?  In criminal law, strange as it may sound that justice is not given to the victim of the crime!  Neither is it given to his or her family.  By definition any crime is a crime against the State, the Country, or the reigning King or Queen (Regina) not the victim or victims of crime.  Notionally that justice is given to the governmental authorities of the State, Province of the Country in which the victim resides or where the crime is committed.  The act or acts committed by the offender constituting the crime (offence/s) are generally legislated by Parliaments and slotted into Consolidated Acts with accompanying Legislation, Schedules, Procedures and Rules which the Minister of Justice in the State, Province, or Country had introduced and after whatever amendments is voted and legislated.  These Acts are part and parcel of law school courses and form the tools of trade of legal practitioner practicing or specializing in criminal law.  
On the other hand if the wrong committed is civil the individual can sue in his or her own capacity as a plaintiff.  The wrong doer (tortfeasor) which could be individual, a company, or governmental entity is named the defendant.  In some rare cases the offence in question could fall into a category of strict liability which means that in order to succeed the plaintiff does not have to prove fault or negligence by the defendant.  More often than not torts falling into this category are legislated and likely to involve governmental or semi governmental institutions.

The burden of proof in criminal and civil wrongs varies considerably.  In civil wrongs that burden is said to be:  on the balance of probability.  Imagine for a minute the blindfolded Goddess Themes carrying the evenly balanced Scale of Justice in her right hand.  If you or I were to put 100 grams of gold on each side of the scale neither side tips the scale and the scale remains evenly balanced.  If you were a plaintiff you will succeed in your claim but you may not get the full monetary compensation you thought.  Why? The chances are in such situations you as a plaintiff carried significant share of the blame for the tort.  If the tort involved and relied upon is negligence by the defendant you the aggrieved plaintiff have probably not kept proper lookout to avoid that negligence whether it be car accident or slipping on oily surface or banana skin in a supermarket.  If one were to read books about award of compensation or specialized books on damages for torts the general guiding principles are based on the notion of putting the plaintiff back to the position as if that tort had not taken place.  Regardless of nobleness of this thought in this guiding principle and theory more often than not that nobleness fades in practice.  How does one put a monetary value on a loss of limb, sight, or bodily function?  Regardless of the monetary compensation the quality of life can never be the same.  In such cases a component of the monetary award will be to cover costs for provision of special help, be it machine, residential modifications such as for lift or wheelchair access or personal help.  
Regardless of the totality of the monetary award the quality of the aggrieved plaintiff’ life can never be the same.  I guess one aspect of relief that equates to Justice is knowledge of the fact that if that very same tort had happened to anyone in the society in which the plaintiff resides, but for the amount of monetary compensation the relief or justice is the same.  

Ask any aggrieved plaintiff after settling or winning his or her case whether the amount of monetary compensation awarded had put him or her in the same position as if the tort had not taken place significant number will say NO and most likely make other comments not befitting mention in this blog.  Needless to say the chances are that plaintiff had to wait years before he or she had their day in the Court.  Did the process involve revelation of the truth or is the truth the quantum sum of monetary compensated?  I guess what I am asking here, is: whether truth has any place in justice where money compensation is awarded.

How about a plaintiff who had lost his or her case and was ordered to pay the defendant’s legal costs?  What justice did this individual plaintiff received?  A legal stuff up or lack of resources to commence legal proceedings is tantamount to denial of legal justice for wronged or aggrieved plaintiff.  If that plaintiff was a passenger in a train and had strained his or her back muscles, torn ligaments and developed a permanent limb as a result of the train coming to a sudden stop in which he or she fell what does justice mean to this plaintiff who had lost his or her case against the railway and is left with permanent disability?  Facts and words that had been modified and slotted into legal jargons and uttered before listening and sympathetic ears tipped the scale in favour of the defendant.  Is such a case tantamount to denial of justice?  Clearly the railway is insured and clearly the insurance can afford to pay for the cream de le cream of the legal profession to use their élan, golden jargons and art of persuasion. 

What chance does the impecunious plaintiff who cannot afford legal representation has?   Buckley’s at best.  Is justice denied in this situation?  All plaintiffs in like situation will say a loud YES.  The defendant will have you believe that the plaintiff had his or her chance and fairly and squarely lost.  From the defendant’s point of view justice had been done!   Really, does aggrieved plaintiff who had flinched and swore delivered justice to the corporation or the governmental entity he or she had sued?

The burden of proof for criminal offences is much higher than that of civil wrongs.  Instead of ‘balance of probabilities’ it is ‘beyond reasonable doubt’.  What does that means and why?  In theory, and in practice, if the accused (defendant) can raise doubt he or she cannot be and should not be convicted. Why?   The well established notion, quotation and belief are: ‘better to have 100 felons walk free than have 1 innocent accused convicted’.  Is that so?  Think of a jury deciding the guilt or the innocence of the accused.   That jury of 12 is picked from a pool of potential jurors selected at random.  Think of that jury as being 6 men and 6 women.  The pool of knowledge and experience of 12 members of society in which the accused defendant lives presumably will level the playing field of prejudices.  But does it really or do we care if it does not?  Remember the victim of the crime is not the family of the person who is killed, maimed and deprived of any enjoyment of life or indeed permanently scared.  It is Regina, yes it is Queen Elizabeth, the richest woman in the world sitting in Buckingham Palace or it is the King or the Country that had suffered.  So the justice for the victim, if he or she is still alive, is the knowledge that the accused is convicted and will be slotted behind bars!

Appointments of Magistrates, Judges, Justices, and Chiefs to the highest Courts in the land are generally done by Parliament in consultation with Bodies having control of the legal profession in that land.   Those Bodies make recommendations that Parliament generally accepts.  The nominated candidate would have had years of experience practicing either for plaintiffs or defendant or if he or she had specialized in criminal law he or she would be either for defendant or prosecutor for Regina, yes Queen Elizabeth II.  The presiding Magistrate, Judge, or Justice is now supposed to be impartial.  He or she supposed to forget all his training and experience and art of persuasion the insurance company that had retained him or her as counsel or his or her fixed views about certain legal principles, precedents, case law, counter arguments etc … Does a jury removes the judges’ prejudice and brings the scale of blindfolded Goddess Themes to equilibrium?  I suggest NO! I will take up that argument in pursuit of justice in the next blog in this series.

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