The content of justice

Introduction

We will begin our consideration of the content of justice with the importance of respecting and protecting fundamental human rights. The difficulty is that, although this can reasonably be considered to be at least one aspect of justice, what it actually requires in any given case may be a great deal less clear.

For example, does it follow that a society which prohibits racial discrimination in the field of employment must prohibit the proprietors of Chinese restaurants from employing only Chinese waiting staff, where they think this form of racial discrimination is necessary in order to provide their establishments with the ambience which their customers enjoy?

Similarly, although admittedly by way of a more extreme example, most people would say that they support freedom of religion and worship. However, suppose a group of people chooses to revive the religious beliefs which formed the foundation of the Central American Aztec civilisation before the European conquest. These beliefs required the offering of human hearts and blood as nourishment for the sun god. Does a commitment to respecting and protecting freedom of religion mean that we must accept the right of this group to practise human sacrifice? When answering this question, is it relevant to ask whether the victims are themselves followers of the faith who are happy to die in the service of their god?

Even leaving aside questions involving fundamental human rights, it is not difficult to imagine situations where the requirements of justice are less than obvious. Suppose a thief (T) steals property from its owner (O) and sells it to a buyer (B), who genuinely and reasonably believes T to be its owner. If the property is traced to B, does justice require that B should be allowed to keep it, or that it should be returned to O? You may argue that the answer to this question is unimportant, because if B is allowed to keep the property, O will have the right to obtain compensation from T.

As you might expect, the law does, in fact, have answers to all these questions, but we will not pursue them here. What we will do instead is to pick up a methodological point and consider three different ways of identifying the content of justice in specific types of cases. Our first approach is based on economic considerations, our second on psychological considerations, and our third on a more general idea which is commonly labelled public policy, and which may appear in a variety of forms.

An economic approach to justice

An economic approach to justice may be illustrated by the problem that arises when a car crash occurs at a junction between a major road and a minor one, where the view of drivers emerging from the minor road is restricted by an overgrown roadside hedge. More particularly, if a car emerging from the minor road collides with a car on the major road, can the driver of the emerging car lay at least part of the blame on the local highway authority, which could have cut back the hedge in such a way as to improve visibility at the junction? Assuming there is no relevant case law or statute, and that the court must, therefore, approach this question at the level of principle, there are likely to be two opposing arguments.

On the one hand, it can be argued that a driver who encounters a particularly dangerous situation on the road should exercise a correspondingly high degree of care. Furthermore, any liability which the court imposes on the driver will, in reality, almost always fall on the driver’s insurance company rather than on the driver personally.

If you stop to think about these two arguments for a few moments, it becomes obvious that the problem may be seen in largely economic terms. More particularly, the cost of any liability which falls on the driver will be borne by the driver’s insurance company – or, more accurately, by the other policyholders and shareholders of the driver’s insurance company, who may suffer, respectively, from increased premiums and reduced dividends. The cost of any liability which falls on the local highway authority will ultimately be borne by the local community at large through the increases in council tax which will be necessary to enable the local authority to pay either insurance premiums or damages. Where insurance cover does exist, the reality of the matter is that the court has to decide how the losses should be allocated between two insurance companies (or, again more accurately, between their respective policyholders and shareholders).

On the basis of a purely economic analysis, therefore, the question requires the economic efficiency of both alternatives to be assessed so that an informed choice can be made between them. On this view, it follows that the interests of justice become the same as the interests of economic efficiency.

You may, of course, object that the judges who decide such cases lack the skills and knowledge which would equip them to undertake the relevant economic analysis with the same expertise that professional economists would bring to the task. While this is no doubt true, those who argue for the requirements of justice to be identified by reference to economic considerations may make two responses. First, expert evidence could be used here, as it is in many other cases involving technical matters. Secondly, and more fundamentally, most people would probably accept that the concept of justice is an ideal that we should strive to attain. This being so, it would be unfortunate if we were to limit our perception of the scope of the concept merely because of the inability of the legal system to attain the ideal in its fullest form.

Finally, if you wish to pursue the arguments in cases such as this, you could usefully read Stovin v Wise (Norfolk County Council, Third Party) [1996] AC 923, where the House of Lords, by a majority of three to two, reversed the decision of the Court of Appeal, reported at [1994] 1 WLR 1124.

A psychological approach to justice

Turning to the psychological approach to justice, and taking a single example, before the Coroners and Justice Act 2009, the defence of provocation reduced murder to manslaughter. (The practical significance of this was that murder carried, and still does carry, a mandatory sentence of life imprisonment, while manslaughter carried, and still does carry, only a maximum sentence of life imprisonment, but no minimum whatsoever.)

The essence of provocation was a sudden and temporary loss of self-control caused by the victim’s conduct. A court which was considering a plea of provocation had to ask itself whether the defendant’s response to the victim’s conduct had been reasonable. This raised a particular difficulty where a woman who had been subjected to domestic violence over a period of time finally lost her self-control in response to something which was, when viewed in isolation, relatively trivial.

Finally, if you wish to pursue the way in which the courts came to accept the psychological realities of domestic violence, you could usefully read the decisions of the Court of Appeal in R v Thornton [1992] 1 All ER 306 and R v Ahluwalia [1992] 4 All ER 889, although you will have to bear in mind that the court was dealing with the old law of provocation in both cases.

A public policy approach to justice

For an example of a situation in which some people would think about the requirements of justice in terms of public policy, suppose A is injured and becomes unfit for work as the result of an accident for which B is responsible. Also suppose that A belongs to an occupational pension scheme which pays out ill-health benefits. A’s loss of income will be the difference between the earnings which he or she would have received but for the accident, and the pension which he or she does actually receive as a result of the accident. In other words, to allow A to receive damages based on the total loss of earnings, as well as receiving the pension, would result in over-compensation.

On the other hand, if the damages are reduced to take account of the pension, B has to pay less than he or she would have paid if A had not invested in a pension scheme which included ill-health benefits. This would mean that B has become the true beneficiary of A’s investment in the pension scheme. While this solution avoids over-compensation, the fact that A receives no benefit from his or her pension contributions is not only intrinsically unfair, but is also contrary to that aspect of public policy which encourages people to take responsibility for their own future needs.

In fact, the law prefers the element of over-compensation and does not, therefore, require the damages to be reduced on account of the pension.

Finally, if you wish to pursue the arguments which arise in cases such as this, you could usefully read Parry v Cleaver [1970] AC 1, where the House of Lords, by a majority of three to two, reversed the decision of the Court of Appeal, which is reported at [1968] 1 QB 195.