Law and Order
Hello fellas! After discussing justice in week 7, let us discuss more how justice is implemented furthermore, thank you!
Why do we need Courts or Judiciary?
1. Locke's problem in the state of Nature
2. Necessity for an arbitrary standard of justice
3. Creation of Courts
The degree of legal influence
Civil vs Common Law System
A. Common Law
1. Derived from Anglo-Saxon (UK) practices of law in the 9th century
2.Sourced from case law (judicial opinions) instead of a fixed code of laws.
1. The role of judges
a. Judges function as law-shapers.
b. Previous functions as made by a judge can be used as a basis for future decisions (case jurisprudence).
c. Judges can also decide what kind of evidence can be admissible in court.
2. The role of lawyers
a. Lawyers act as legal counsel and legal representation.
b. They defend the interest of their clients by arguing in court and preparing legal documents.
c. Only certified lawyers are allowed to handle case documents
B. Civil Law
a. Derived from the Corpus Juris Civils written by Emperor Justnian I in the 4th-century
b. Laws are sourced from legal codices or written legal documents.
1. The Role of the judges
a. Judges function as investigators and adjudicators.
b. Judges investigate cases, question witnesses, and decide the proper reparations.
c. Through case jurisprudence may be used, it is less powerful than the legal code.
2. The Role of Lawyer
a. Lawyers act as legal counsel and legal representation, though less influential than in common law
b. They represent their clients's interest and provide legal advice
c. Preparation of legal documents may be done by quasi-official law offices
The judiciary in Politics
Judicial Neutrality
1. The main function of the judiciary is to interpret laws and uphold justice
2. Ideally, the judiciary should be clean from political bias and influence
3. Reason for long justice tenures - to maintain neutrality and demotivate from politicization.
To punish or Restore?
1. In carrying out justice, the judiciary often has to deal with the tough decision of whether to punish or restore offenders?
2. Note that these approaches are not exclusive; they can sometimes complement one another.
Retributive Justice
1. A theory of justice that believes in punishment than rehabilitation.
2. The main view: Offenders of the law deserve punishment for their offenses.
3. It intuitively makes sense, has some moral appeal ("eye for an eye"), and may also defer future offenses.
Restorative/rehabilitative justice
1. A theory of justice that believes in "restoring" or rehabilitating offenders rather than punishing them.
2. The main law: Offenders can learn from their mistakes and repair the damage done.
3. Less morally appealing, however, it is an alternative theory that shows positive progress in reducing recidivism.
Designing A Mechanism for Justice
The aim of criminal justice
1. Punishment of offenders
2. Protection of society from further harm
3. Deterference against future acts
4. Rehabilitation/restoration of the offender
Harsh to lenient punishment?
Remember: You cannot rehabilitate a dead guy!
Restore Terrorist
1. May not resonate well as conservative. Takes more effort and resources.
2. Not effective against hardened ideologues like Osama bin Laden
3. Terrorist can be restored and used as a countermeasure
4. Rehabilitated terrorist (less likely to re-engage in terrorism)
Punish Terrorist
1. Provides a feeling of security for the people. The government is taking strong action.
2. Favourable with conservative
3. Dead/jailed terrorists make very good martyrs. They can also radicalize people in prison!
4. You cannot kill an ideology
A country may be more inclined towards either restorative or rehabilitative justice. Remember that there is no single country that practices extremes.
Conclusion
1. The judiciary serves to uphold law and order alongside law enforcement agencies.
2. The judiciary may be politicized and lose judicial neutrality. The important question of today is how can we make sure judicial neutrality is upheld.
3. In designing a system of justice, we need to understand when to restore and when to punish.
supported by: canva & pinterst
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