The right to fair trial is very helpful to explore in numerous declarations which represent customary international law, such as the Universal Declaration of Human Rights (UDHR). Though the UDHR enshrines some fair trial rights, such as the presumption of innocence until the accused is proven guilty, in Articles 6, 7, 8 and 11, the key provision is Article 10 which states that:
Everyone is entitled in full equality to a fair and public hearing by
an independent and impartial tribunal, in the determination of his
rights and obligations and of any criminal charge against him.
Some years after the UDHR was adopted, the right to a fair trial was defined in more detail in the International Covenant on Civil and Political Rights
(ICCPR). The right to a fair trial is protected in Articles 14 and 16
of the ICCPR which is binding in international law on those states that
are party to it. Article 14(1) establishes the basic right to a fair trial, article 14(2) provides for the presumption of innocence,
and article 14(3) sets out a list of minimum fair trial rights in
criminal proceedings. Article 14(5) establishes the right of a convicted
person to have a higher court review the conviction or sentence, and
article 14(7) prohibits double jeopardy. Article 14(1) states that:
All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal
established by law. The press and the public may be excluded from all or
part of a trial for reasons of morals, public order or national
security in a democratic society, or when the interest of the private
lives of the parties so requires, or to the extent strictly necessary in
the opinion of the court in special circumstances where publicity would
prejudice the interests of justice; but any judgement rendered in a
criminal case or in a suit at law shall be made public except where the
interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children.
Geneva Conventions
The Geneva Conventions (GC) and their Additional Protocols (APs) require that any prisoners of war facing a judicial proceeding receive a fair trial. For example, Articles 102–108 of the 1949 Third Geneva Convention detail requirements for the fairness of trials against prisoners of war.
Other provisions require a "fair and regular trial"; "safeguards of
proper trial and defence"; an "impartial and regularly constituted court
respecting the generally recognized principles of regular judicial
procedure"; a "regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples";
and "court offering the essential guarantees of independence and
impartiality".
The right to a fair trial is also enshrined in articles 5, 6 and 7 of the European Convention on Human Rights and articles 2 to 4 of the 7th Protocol to the convention.
Speedy justice tends to correlate with quality and fairness of justice. Right to speedy trial and Right to a fair trial can be difficult to combine.
Fair trial rights
The right to a fair trial has been defined in numerous regional and international human rights instruments.
It is one of the most extensive human rights and all international
human rights instruments enshrine it in more than one article.
The right to a fair trial is one of the most litigated human rights and
substantial case law that has been established on the interpretation of
this human right.
Despite variations in wording and placement of the various fair trial
rights, international human rights instrument define the right to a fair
trial in broadly the same terms.
The aim of the right is to ensure the proper administration of justice.
As a minimum the right to fair trial includes the following fair trial
rights in civil and criminal proceedings:
the right to be heard by a competent, independent and impartial tribunal
States may limit the right to a fair trial or derogate from the fair
trial rights only under circumstances specified in the human rights
instruments.
In civil and criminal proceedings
The European Court of Human Rights and the Inter-American Court of Human Rights have clarified that the right to a fair trial applies to all types of judicial proceedings, whether civil or criminal. According to the European Court of Human Rights, Article 6 of the European Convention on Human Rights
and the fair trial rights apply to all civil rights and obligations
created under domestic law and therefore to all civil proceedings (see Apeh Uldozotteinek Szovetsege and Others v. Hungary 2000).
In administrative proceedings
Both the European Court of Human Rights and the Inter-American Court of Human Rights
have clarified that the right to a fair trial applies not only to
judicial proceedings, but also administrative proceedings. If an
individual's right under the law is at stake, the dispute must be
determined through a fair process.
In special proceedings
In Europe special proceeding may also be subject to Article 6 of the European Convention on Human Rights. In Mills v. the United Kingdom 2001 the European Court of Human Rights held that a court-martial
was subject to Article 6 because of the defendants had been accused of
what the court considered to be serious crime, assault with a weapon and
wounding.
The African Commission on Human and Peoples' Rights (ACHPR) frequently deals with instances where civilians are tried by military tribunals
for serious crimes. The ACHPR has held that on the face of it military
courts to do not satisfy civilians' right to a fair trial (see Constitutional Rights Project v. Nigeria). In this respect the ACHPR has reaffirmed the right to counsel
as essential in guaranteeing a fair trial. The ACHPR held that
individuals have the right to choose their own counsel and that giving
the military tribunal the right to veto a counsel violates the right to a
fair trial.
In the United Kingdom
Right to a fair trial in the United Kingdom is guaranteed by the Article 6 of the Human Rights Act 1998.
Between 1971 and 1975, the right to a fair trial was suspended in Northern Ireland.
Suspects were simply imprisoned without trial, and interrogated by the
British army for information. This power was mostly used against the
Catholic minority. The British government supplied deliberately
misleading evidence to the European Court of Human Rights when it
investigated this issue in 1978. The Irish government and human rights group Amnesty International requested that the ECHR reconsider the case in December 2014.
Three court cases related to the Northern Ireland conflict that took
place in mainland Britain in 1975 and 1976 have been accused of being
unfair, resulting in the imprisonment of the Birmingham Six, Guildford Four and Maguire Seven.
These convictions were later overturned, though an investigation into
allegations that police officers perverted the course of justice failed
to convict anyone of wrongdoing.
The United Kingdom created an act – the Special Immigration
Appeals Act of 1997 – which led to the creation of the Special
Immigration Appeals Commission (SIAC).
It allowed for secret evidence to be stated in court and provided
provisions for the anonymity of the sources and information itself. The
judge has the power to clear the courtroom of the public and press, and
the appellant if need be, if sensitive information must be relayed. The
appellant is provided with a Special Advocate, who is appointed in order
to represent their interests; no contact can be made with the appellant
after seeing the secret evidence. SIAC is mostly used for deportation
cases and other cases of public interest.
Secret evidence has seen increased use in UK courts. Some argue
that this undermines the British criminal justice system, as this
evidence may not come under proper democratic scrutiny. Secret evidence
can now be used in wide range of cases including deportations hearings,
control orders proceedings, parole board cases, asset-freezing
applications, pre-charge detention hearings in terrorism cases,
employment tribunals and planning tribunals.
In England and Wales, the origin of Right To Fair Trial & Right To Be Heard can be traced back in the Magna Carta Act, 1215. Art. 39 of the Act speaks about fair trial and punishment by a competent court after the trial.
Juries and a fair trial
The rationale for a jury was that it offers a check against state power.
Under Article 6 of the ECHR,
the right to a fair trial implies that accused and public must be able
to understand the verdict. Trials decided by jury, as they do not
provide reasons for their decision, therefore do not allow for this. In Taxquet v Belgium
a violation of article 6(1) was found. The court also implied a right
to a reasoned verdict, irrespective of whether that was given by a judge
or a jury.
Under ECHR case law, jury decisions can also be problematic in
circumstances where juries draw adverse inferences from trial judges'
directions in contravention of Article 6(3) (b) and (c).
Moriarty is a criminal mastermind who uses his intelligence and
resources to provide criminals with crime strategies and sometimes
protection from the law, all in exchange for a fee or a cut of profit.
Holmes likens Moriarty to a spider at the centre of a web and calls him
the "Napoleon of crime", a phrase Doyle lifted from a Scotland Yard inspector referring to Adam Worth,
a real-life criminal mastermind and one of the individuals upon whom
the character of Moriarty was based. Despite appearing only twice in
Doyle's original stories, later adaptations and pastiches have given
Moriarty greater prominence, often using him as the main antagonist, and
treated him as Sherlock Holmes' archenemy.
Appearances in works
Professor Moriarty's first appearance occurred in the 1893 short story "The Adventure of the Final Problem" (set in 1891). The story features consulting detective Sherlock Holmes revealing to his friend and biographer Doctor Watson
that for years now he has suspected many seemingly isolated crimes to
actually all be the machinations of a single, vast, and subtle criminal
organisation. After investigation, he has uncovered Professor Moriarty
as a mastermind who provides strategy and protection to criminals in
exchange for obedience and a share in their profits. Moriarty realizes
Holmes is aware of his operation and confronts him in person,
threatening death if Holmes interferes any further.
Holmes describes Moriarty's physical appearance to Watson, saying
the professor is extremely tall and thin, clean-shaven, pale, and
ascetic-looking. He has a forehead that "domes out in a white curve",
deeply sunken eyes, and shoulders that are "rounded from much study".
His face protrudes forward and is always slowly oscillating from side to
side "in a curiously reptilian fashion".
Holmes mentions that during their meeting, Moriarty remarked in
surprise, "You have less frontal development than I should have
expected," indicating the criminal believes in phrenology.
Holmes ignores the threat and delivers appropriate evidence to
the police so Moriarty and those who operate his network will face
justice in a few days. Knowing the mastermind and his trusted
lieutenants intend to kill him before they hide or are arrested, Holmes
flees to Switzerland, and Watson joins him. The mastermind follows, his
pursuit ending when he confronts Holmes at the top of the Reichenbach Falls.
Watson does not witness the confrontation but arrives later to find
signs of hand-to-hand combat occurring at the cliff edge near the
waterfall, indicating the battle ended with both men falling to their
deaths. Watson also finds a goodbye note left behind by Holmes that
Moriarty allowed him to write before their battle.
Moriarty plays a direct role in only one other Holmes story, The Valley of Fear (1914), set before "The Final Problem" but written afterwards. In The Valley of Fear,
Holmes attempts to prevent Moriarty's men from committing a murder. A
policeman who interviewed Moriarty tells Holmes that the professor has a
painting by Jean-Baptiste Greuze
hanging on his office wall. Learning this, Holmes mentions the great
value of another painting by the same artist, pointing out such works
could not have been purchased on a university professor's salary. The
work referred to is La jeune fille à l'agneau; which some commentators have described as a pun by Doyle on a famous Thomas Gainsborough painting, the Portrait of Georgiana, Duchess of Devonshire, which was taken from the Thomas Agnew and Sons art gallery. The gallery believed Adam Worth (the criminal who helped inspire Doyle to create Moriarty) was responsible, but was unable to prove the claim.
Doctor Watson,
even when narrating, never meets Moriarty (only getting distant
glimpses of him in "The Final Problem") and relies upon Holmes to relate
accounts of the detective's feud with the criminal. Doyle is
inconsistent on Watson's familiarity with Moriarty. In "The Final
Problem", Watson tells Holmes he has never heard of Moriarty, while in
"The Valley of Fear", set earlier on, Watson already knows of him as
"the famous scientific criminal."
In "The Empty House", Holmes says Moriarty commissioned a powerful air gun from a blind German mechanic surnamed von Herder, a weapon later used by the professor's employee/acolyte Colonel Moran.
It closely resembles a cane, allows easy concealment, is capable of
firing revolver bullets at long range, and makes very little noise when
fired, making it ideal for criminal sniping.
Moriarty also has a marked preference for organising lethal "accidents"
to befall his targets. His attempts to kill Holmes include falling
masonry and a speeding horse-drawn vehicle.
He is also responsible for stage-managing the death of Birdy Edwards,
making it appear the man was lost overboard while sailing to South
Africa.
Personality
Moriarty
is highly ruthless, shown by his steadfast vow to Sherlock Holmes that
"if you are clever enough to bring destruction upon me, rest assured
that I shall do as much to you".
Moriarty is categorised by Holmes as an extremely powerful criminal
mastermind adept at committing any atrocity to perfection without losing
any sleep over it. It is stated in "The Final Problem" that Moriarty
does not directly participate in the activities he plans, but only
orchestrates the events or provides the plans that will lead to a
successful crime. What makes Moriarty so dangerous is his extremely
cunning intellect:
He is a man of good birth and excellent education, endowed by nature
with a phenomenal mathematical faculty. [...] But the man had hereditary
tendencies of the most diabolical kind. A criminal strain ran in his
blood, which, instead of being modified, was increased and rendered
infinitely more dangerous by his extraordinary mental powers. [...] He
is the Napoleon of crime, Watson. He is the organiser of half that is
evil and of nearly all that is undetected in this great city...
— Holmes, "The Final Problem"
Holmes echoes and expounds this sentiment in The Valley of Fear, stating:
The greatest schemer of all time, the organizer of every devilry, the
controlling brain of the underworld, a brain which might have made or
marred the destiny of nations—that's the man! But so aloof is he from
general suspicion, so immune from criticism, so admirable in his
management and self-effacement, that for those very words that you have
uttered he could hale you to a court and emerge with your year's pension
as a solatium for his wounded character. [...] Foulmouthed doctor and
slandered professor—such would be your respective roles! That's genius,
Watson.
— Holmes, The Valley of Fear
Moriarty respects Holmes's intelligence, stating: "It has been an
intellectual treat for me to see the manner in which you [Holmes] have
grappled with this case." Nevertheless, he makes numerous attempts upon
Holmes's life through his agents. He shows a fiery disposition, becoming
enraged when his plans are thwarted, resulting in his being placed "in
positive danger of losing my liberty". While personally pursuing Holmes
at a train station, he furiously elbows aside passengers, heedless of
whether this draws attention to himself.
Doyle's original motive in creating Moriarty was evidently his intention to kill Holmes off.
"The Final Problem" was intended to be exactly what its title says;
Doyle sought to sweeten the pill by letting Holmes go in a blaze of
glory, having rid the world of a criminal so powerful and dangerous that
any further task would be trivial in comparison (as Holmes says in the
story itself). Eventually, however, public pressure and financial
troubles impelled Doyle to bring Holmes back. While Doyle conceded to
revealing that Holmes did not die during "The Final Problem" (as Watson
mistakenly concludes), he chose not to undo Moriarty's death in a
similar fashion. For this reason, the later novel The Valley of Fear features Moriarty as an active villain but is specified to take place before the events of "The Final Problem".
Fictional character biography
As established in Doyle's canon, Moriarty first gains recognition at the age of 21 for writing "a treatise upon the Binomial Theorem",
which leads to his being awarded the Mathematical Chair at one of
England's smaller universities. Moriarty later authors a much respected
work titled The Dynamics of an Asteroid.
After he becomes the subject of unspecified "dark rumours" in the
university town, he is compelled to resign his teaching post and leave
the area. He moves to London, where he establishes himself as an "army coach", a private tutor to officers preparing for exams.
He becomes a consulting criminal mastermind for various London gangs
and criminals (it is uncertain if he was already doing this before
leaving his teaching post). When multiple plans of his are hampered or
undone by Sherlock Holmes, Moriarty targets the consulting detective.
Multiple pastiches and other works outside of Doyle's stories
purport to provide additional information about Moriarty's background.
John F. Bowers, a lecturer in mathematics at the University of Leeds,
wrote a tongue-in-cheek article in 1989 in which he assesses Moriarty's
contributions to mathematics and gives a detailed description of
Moriarty's background, including a statement that Moriarty was born in
Ireland (an idea based on the fact that the surname is Irish in origin). The 2005 pastiche novel Sherlock Holmes: The Unauthorized Biography also reports that Moriarty was born in Ireland, and states that he was employed as a professor by Durham University. According to the 2020 audio drama Sherlock Holmes: The Voice of Treason, written by George Mann and Cavan Scott,
Moriarty was a professor at Stonyhurst College (where Arthur Conan
Doyle was educated and knew two students with the surname Moriarty).
Family
The stories give contradictory indications about Moriarty's family. In his first appearance in "The Final Problem"
(1893), the villain is referred to only as "Professor Moriarty". Watson
mentions no forename but does refer to the name of another family
member when he writes of "the recent letters in which Colonel James
Moriarty defends the memory of his brother". In "The Adventure of the Empty House"
(1903), Holmes refers to Moriarty as "Professor James Moriarty". This
is the only time Moriarty is given a first name, and oddly, it is the
same as that of his purported brother. In the 1914 novel The Valley of Fear
(written after the preceding two stories, but set earlier), Holmes says
of Professor Moriarty: "He is unmarried. His younger brother is a station master in the west of England." In Sherlock Holmes: A Drama in Four Acts, an 1899 stage play, of which Doyle was a co-author, the villain is named Professor Robert Moriarty.
Writer Vincent Starrett
suggested that Moriarty could have one brother (who is both a colonel
and station master) or two brothers (one a colonel and the other a
station master); he added that he considered the presence of two
siblings more likely, and suggested that all three brothers were named
James. Writer Leslie S. Klinger
suggested that Professor Moriarty has an older brother named Colonel
James Moriarty in addition to an unnamed younger brother. According to
Klinger, writer Ian McQueen proposed that Moriarty does not actually
have any brothers, while Sherlockian John Bennett Shaw suggested, like Starrett, that there are three Moriarty brothers, all named James.
Real-world role models
Simon Newcomb (circa 1905), one possible model for Moriarty
"Moriarty" is an ancient Irish name as is Moran, the surname of Moriarty's henchman, Sebastian Moran. Doyle himself was of Irish Catholic descent, educated at Stonyhurst College,
although he abandoned his family's religious tradition, neither
marrying nor raising his children in the Catholic faith, nor cleaving to
any politics that his ethnic background might presuppose. Doyle is
known to have used his experiences at Stonyhurst as inspiration for
details of the Holmes series; among his contemporaries at the school
were two boys surnamed Moriarty.
ln addition to the master criminal Adam Worth, there has been speculation among astronomers and Sherlock Holmes enthusiasts that Doyle based his fictional character Moriarty on the Canadian-American astronomer Simon Newcomb.
Newcomb was revered as a multitalented genius, with a special mastery
of mathematics, and he had become internationally famous in the years
before Doyle began writing his stories. More to the point, Newcomb had
earned a reputation for spite and malice, apparently seeking to destroy
the careers and reputations of rival scientists.
George Boole (circa 1860), another possible model for Moriarty
Moriarty may have been inspired in part by two real-world
mathematicians. If the characterisations of Moriarty's academic papers
are reversed, they describe real mathematical events. Carl Friedrich Gauss wrote a famous paper on the dynamics of an asteroid in his early 20s, and was appointed to a chair partly on the strength of this result. Srinivasa Ramanujan wrote about generalisations of the binomial theorem, and earned a reputation as a genius by writing articles that confounded the best extant mathematicians. Gauss's story was well known in Doyle's time, and Ramanujan's story unfolded at Cambridge from early 1913 to mid 1914; The Valley of Fear,
which contains the comment about maths so abstruse that no one could
criticise it, was published in September 1914. Irish mathematician Des MacHale has suggested George Boole may have been a model for Moriarty.
Jane Stanford, in That Irishman, suggests that Doyle borrowed some of the traits and background of the FenianJohn O'Connor Power for his portrayal of Moriarty. In Moriarty Unmasked: Conan Doyle and an Anglo-Irish Quarrel,
2017, Stanford explores Doyle's relationship with the Irish literary
and political community in London. She suggests that Moriarty, Ireland's
Napoleon, represents the Fenian threat at the heart of the British
Empire. O'Connor Power studied at St Jarlath's Diocesan College in Tuam,
County Galway.
In his third and last year he was Professor of Humanities. As an
ex-professor, the Fenian leader successfully made a bid for a
Westminster seat in County Mayo.
It is averred that surviving Jesuit priests at the preparatory schoolHodder Place, Stonyhurst,
instantly recognised the physical description of Moriarty as that of
the Rev. Thomas Kay, SJ, Prefect of Discipline, under whose authority
Doyle fell as a wayward pupil.
According to this hypothesis, Doyle as a private joke has Inspector
MacDonald describe Moriarty: "He'd have made a grand meenister with his
thin face and grey hair and his solemn-like way of talking."
The model which Doyle himself cited (through Sherlock Holmes) in The Valley of Fear is the London arch-criminal of the 18th century, Jonathan Wild.
He mentions this when seeking to compare Moriarty to a real-world
character that Inspector Alec MacDonald might know, but it is in vain as
MacDonald is not so well read as Holmes.
T. S. Eliot's character Macavity the Mystery Cat is based on Moriarty. Author Timothy Zahn's fictional Star Wars
warlord Nuso Esva is also based on the professor; in fact, if each
consonant and vowel of the character's name is replaced with the
consonants and vowels before them in the Latin alphabet, "Nuso Esva" becomes "Moriarty."
A Sherlockian society was formed by noted Sherlockian John Bennett Shaw called "The Brothers Three of Moriarty", in honour of Professor Moriarty and his two brothers. The group held annual dinners in Moriarty, New Mexico.
Justice, in its broadest sense, is the concept that individuals are to be treated in a manner that is equitable and fair.
A society in which justice has been achieved would be one in
which individuals receive what they "deserve". The interpretation of
what "deserve" means draws on a variety of fields and philosophical
branches including ethics, rationality, law, religion, equity and fairness. The state may be said to pursue justice by operating courts and enforcing their rulings.
History
A variety of philosophical and moral theories have been advanced to inform understanding of justice.
Religious explanations of justice can be grouped under the divine command theory, which holds that justice issues from God.
Western thinkers later advanced different theories about where
the foundations of justice lie. In the 17th century, philosophers such
as John Locke said justice derives from natural law. Social contract theory, advocated by thinkers such as Jean-Jacques Rousseau,
says that justice derives from the mutual agreement of members of
society to be governed in a political order. In the 19th century, utilitarian philosophers such as John Stuart Mill said that justice is served by what creates the best outcomes for the greatest number of people.
Modern frameworks include concepts such as distributive justice, egalitarianism, retributive justice, and restorative justice.
Distributive justice considers what is fair based on what goods are to
be distributed, between whom they are to be distributed, and what is the
proper distribution. Egalitarians suggest justice can only exist
within the coordinates of equality. Theories of retributive justice say
justice is served by punishing wrongdoers, whereas restorative justice
(also sometimes called "reparative justice") is an approach to justice
that focuses on the needs of victims and offenders.
Justice, according to Plato,
is about balance and harmony. It represents the right relationship
between conflicting aspects within an individual or a community. He
defines justice as everyone having and doing what they are responsible
for or what belongs to them. In other words, a just person is someone
who contributes to society according to their unique abilities and
receives what is proportionate to their contribution. They are in the
right place, always striving to do their best, and reciprocating what
they receive in a fair and equitable manner. This applies both at the
individual level and at the organizational and societal levels.
An example of a Justice according to Plato's character "Socrates"
would be a person is born to be a cobbler (their nature), who has the
virtue (temperance) of the economic class (social position), employed as
a cobbler (occupation), and doing their work well (expertise) – thus
benefitting the state's economy for all others' happiness which has the
Form of "Good". Contrariwise, an example of Injustice would be a person
whose nature is that of a cobbler (their nature), who lacks the virtue
(wisdom) needed from the ruling class (social position), and is employed
as head of state (occupation), doing that work poorly (expertise) –
thus ruining the government, military, and economy which provide for the
happiness of all citizens which fits within the Form of "Bad".
To illustrate these ideas, Plato describes a person's as having
three parts: reason, spirit, and desire. These parallel the three parts
of a city in his philosophy, which he describes through the metaphor of a
chariot: it functions effectively when the charioteer, representative
of reason, successfully controls the two horses, symbolizing spirit and
desire. Continuing on these themes, Plato theorizes that those who love
wisdom, or philosophers,
are the most ideal to govern because only they truly comprehend the
nature of the good. Just like one would seek a doctor's expertise in
matters of health rather than a farmer's, so should the city entrust its
governance to someone knowledgeable about the good, rather than to
politicians who might prioritize power over people's genuine needs. Socrates
later used the parable of the ship to illustrate this point: the unjust
city is like a ship in open ocean, crewed by a powerful but drunken
captain (the common people), a group of untrustworthy advisors who try
to manipulate the captain into giving them power over the ship's course
(the politicians), and a navigator (the philosopher), the latter of whom being the only one who knows how to get the ship to port.
Advocates of divine command theory say justice, and indeed the whole
of morality, is the authoritative command of God. Murder is wrong and
must be punished, for instance, because God says it so. Some versions of
the theory assert that God must be obeyed because of the nature of
God's relationship with humanity, others assert that God must be obeyed
because God is goodness itself, and thus doing God's command would be
best for everyone.
An early meditation on the divine command theory by Plato can be found in his dialogue, Euthyphro. Called the Euthyphro dilemma,
it goes as follows: "Is what is morally good commanded by the gods
because it is morally good, or is it morally good because it is
commanded by the gods?" The implication is that if the latter is true,
then justice is beyond mortal understanding; if the former is true, then
morality exists independently from the gods, and is therefore subject
to the judgment of mortals. A response, popularized in two contexts by Immanuel Kant and C. S. Lewis,
is that it is deductively valid to say that the existence of an
objective morality implies the existence of God and vice versa.
Jews, Christians, and Muslims traditionally believe that justice is a present, real, right, and, specifically, governing concept along with mercy, and that justice is ultimately derived from and held by God. According to the Bible, such institutions as the Mosaic Law were created by God to require the Israelites to live by and apply God's standards of justice.
The Hebrew Bible describes God as saying about the Judeo-Christian patriarchAbraham:
"No, for I have chosen him, that he may charge his children and his
household after him to keep the way of the Lord by doing righteousness
and justice;...." (Genesis 18:19, NRSV). The Psalmist describes God as having "Righteousness and justice [as] the foundation of [His] throne;...." (Psalms 89:14, NRSV).
The New Testament also describes God and Jesus Christ as having and displaying justice, often in comparison with God displaying and supporting mercy (Matthew 5:7).
For advocates of the theory that justice is part of natural law (e.g., John Locke), justice inheres in the nature of man.
Despotism and skepticism
In Republic by Plato, the character Thrasymachus
argues that justice is the interest of the strong – merely a name for
what the powerful or cunning ruler has imposed on the people.
Advocates of the social contract say that justice is derived from the
mutual agreement of everyone; or, in many versions, from what they
would agree to under hypothetical conditions including equality and absence of bias. This account is considered further below, under 'Justice as Fairness'. The absence of bias refers to an equal ground for all people involved in a disagreement (or trial in some cases).
Subordinate value
According to utilitarian thinkers including John Stuart Mill, justice is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness, consequentialism: what is right is what has the best consequences (usually measured by the total or average welfare
caused). So, the proper principles of justice are those that tend to
have the best consequences. These rules may turn out to be familiar ones
such as keeping contracts;
but equally, they may not, depending on the facts about real
consequences. Either way, what is important is those consequences, and
justice is important, if at all, only as derived from that fundamental
standard. Mill tries to explain our mistaken belief that justice is
overwhelmingly important by arguing that it derives from two natural
human tendencies: our desire to retaliate against those who hurt us, or
the feeling of self-defense and our ability to put ourselves
imaginatively in another's place, sympathy. So, when we see someone
harmed, we project ourselves into their situation and feel a desire to
retaliate on their behalf. If this process is the source of our feelings
about justice, that ought to undermine our confidence in them.
It has been said that 'systematic' or 'programmatic' political and moral philosophy in the West begins, in Plato's Republic, with the question, 'What is Justice?' According to most contemporary theories of justice, justice is overwhelmingly important: John Rawls claims that "Justice is the first virtue of social institutions, as truth is of systems of thought." In classical approaches, evident from Plato through to Rawls,
the concept of 'justice' is always construed in logical or
'etymological' opposition to the concept of injustice. Such approaches
cite various examples of injustice, as problems which a theory of
justice must overcome. A number of post-World War II approaches do,
however, challenge that seemingly obvious dualism between those two
concepts. Justice can be thought of as distinct from benevolence, charity, prudence, mercy, generosity, or compassion, although these dimensions are regularly understood to also be interlinked. Justice is the concept of cardinal virtues, of which it is one. Metaphysical justice has often been associated with concepts of fate, reincarnation or Divine Providence, i.e., with a life in accordance with a cosmic plan.
The equivalence of justice and fairness has been historically and culturally established.
Fairness
J. L. Urban, statue of Lady Justice at court building in Olomouc, Czech Republic
In his A Theory of Justice, John Rawls used a social contract
argument to show that justice, and especially distributive justice, is a
form of fairness: an impartial distribution of goods. Rawls asks us to
imagine ourselves behind a veil of ignorance
that denies us all knowledge of our personalities, social statuses,
moral characters, wealth, talents and life plans, and then asks what
theory of justice we would choose to govern our society when the veil is
lifted, if we wanted to do the best that we could for ourselves. We do
not know who in particular we are, and therefore can not bias the
decision in our own favor. So, the decision-in-ignorance models
fairness, because it excludes selfish bias. Rawls said that each of us would reject the utilitarian
theory of justice that we should maximize welfare (see below) because
of the risk that we might turn out to be someone whose own good is
sacrificed for greater benefits for others. Instead, we would endorse
Rawls's two principles of justice:
Each person is to have an equal right to the most extensive
total system of equal basic liberties compatible with a similar system
of liberty for all.
Social and economic inequalities are to be arranged so that they are both
to the greatest benefit of the least advantaged, consistent with the just savings principle, and
attached to offices and positions open to all under conditions of fair equality of opportunity.
This imagined choice justifies these principles as the principles of
justice for us, because we would agree to them in a fair decision
procedure. Rawls's theory distinguishes two kinds of goods – (1) the good of liberty rights
and (2) social and economic goods, i.e. wealth, income and power – and
applies different distributions to them – equality between citizens for
(1), equality unless inequality improves the position of the worst off
for (2).
In one sense, theories of distributive justice may assert that
everyone should get what they deserve. Theories vary on the meaning of
what is "deserved". The main distinction is between theories that say
the basis of just deserts ought to be held equally by everyone, and
therefore derive egalitarian accounts of distributive justice – and
theories that say the basis of just deserts is unequally distributed on
the basis of, for instance, hard work, and therefore derive accounts of
distributive justice by which some should have more than others.
Studies at UCLA
in 2008 have indicated that reactions to fairness are "wired" into the
brain and that, "Fairness is activating the same part of the brain that
responds to food in rats... This is consistent with the notion that
being treated fairly satisfies a basic need". Research conducted in 2003 at Emory University involving capuchin monkeys demonstrated that other cooperative animals also possess such a sense and that "inequity aversion may not be uniquely human".
Instrumental theories of justice look at the consequences of punishment for wrongdoing, looking at questions such as:
why punish?
who should be punished?
what punishment should they receive?
In broad terms, utilitarian theories look forward to the future consequences of punishment, retributive theories look back to particular acts of wrongdoing and attempt to match them with appropriate punishment, and restorative theories look at the needs of victims and society and seek to repair the harms from wrongdoing.
According to the utilitarian, justice is the maximization of the
total or average welfare across all relevant individuals. Utilitarianism
fights crime in three ways:
Deterrence. The credible threat
of punishment might lead people to make different choices;
well-designed threats might lead people to make choices that maximize
welfare. This matches some strong intuitions about just punishment: that it should generally be proportional to the crime. Successful deterrence would reduce crime statistics.
Rehabilitation.
Punishment might make "bad people" into "better" ones. For the
utilitarian, all that "bad person" can mean is "person who's likely to
cause unwanted things (like suffering)". So, utilitarianism could
recommend punishment that changes someone such that they are less likely
to cause bad things. Successful rehabilitation would reduce recidivism.
Security/Incapacitation. Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning
them might maximize welfare by limiting their opportunities to cause
harm and therefore the benefit lies within protecting society.
So, the reason for punishment is the maximization of welfare, and
punishment should be of whomever, and of whatever form and severity, are
needed to meet that goal. This may sometimes justify punishing the
innocent, or inflicting disproportionately severe punishments, when that
will have the best consequences overall (perhaps executing a few
suspected shoplifters
live on television would be an effective deterrent to shoplifting, for
instance). It also suggests that punishment might turn out never to be right, depending on the facts about what actual consequences it has.
Welfare-maximization
According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant individuals.
This may require sacrifice of some for the good of others, so long as
everyone's good is taken impartially into account. Utilitarianism, in
general, says that the standard of justification for actions,
institutions, or the whole world, is impartial welfare consequentialism, and only indirectly, if at all, to do with rights, property, need,
or any other non-utilitarian criterion. These other criteria might be
indirectly important, to the extent that human welfare involves them.
But even then, such demands as human rights would only be elements in
the calculation of overall welfare, not uncrossable barriers to action.
Retributive justice argues that consequentialism is wrong, as it
argues that all guilty individuals deserve appropriate punishment, based
on the conviction that punishment should be proportional to the crime
and for all the guilty. However, it is sometimes said that retributivism is merely revenge in disguise.
However, there are differences between retribution and revenge: the
former is impartial and has a scale of appropriateness, whereas the
latter is personal and potentially unlimited in scale.
Restorative justice attempts to repair the harm that was done to the victims.
It encourages active participation from victims and encourages
offenders to take responsibility for their actions. Restorative justice
fosters dialogue between victim and offender and shows the highest rates
of victim satisfaction and offender accountability. Meta-analyses of the effectivity of restorative justice show no improvement in recidivism.
Mixed theories
Some modern philosophers have said that Utilitarian and Retributive theories are not mutually exclusive. For example, Andrew von Hirsch, in his 1976 book Doing Justice, suggested that we have a moral obligation to punish greater crimes more than lesser ones. However, so long as we adhere to that constraint then utilitarian ideals would play a significant secondary role.
Theories of distributive justice need to answer three questions:
What goods are to be distributed? Is it to be wealth, power, respect, opportunities or some combination of these things?
Between what entities are they to be distributed? Humans (dead, living, future), sentient beings, the members of a single society, nations?
What is the proper distribution? Equal, meritocratic, according to social status, according to need, based on property rights and non-aggression?
Distributive justice theorists generally do not answer questions of who has the right
to enforce a particular favored distribution, while property rights
theorists say that there is no "favored distribution". Rather,
distribution should be based simply on whatever distribution results
from lawful interactions or transactions (that is, transactions which
are not illicit).
In Anarchy, State, and Utopia, Robert Nozick said that distributive justice is not a matter of the whole distribution matching an ideal pattern, but of each individual entitlement having the right kind of history. It is just that a person has some good (especially, some property right) if and only if they came to have it by a history made up entirely of events of two kinds:
Just acquisition, especially by working on unowned things; and
Just transfer, that is free gift, sale or other agreement, but not theft (i.e. by force or fraud).
If the chain of events leading up to the person having something
meets this criterion, they are entitled to it: that they possess it is
just, and what anyone else does or does not have or need is irrelevant.
On the basis of this theory of distributive justice, Nozick said
that all attempts to redistribute goods according to an ideal pattern,
without the consent of their owners, are theft. In particular, redistributive taxation is theft.
Some property rights theorists (such as Nozick) also take a
consequentialist view of distributive justice and say that property
rights based justice also has the effect of maximizing the overall
wealth of an economic system. They explain that voluntary (non-coerced)
transactions always have a property called Pareto efficiency.
The result is that the world is better off in an absolute sense and no
one is worse off. They say that respecting property rights maximizes the
number of Pareto efficient transactions in the world and minimized the
number of non-Pareto efficient transactions in the world (i.e.
transactions where someone is made worse off). The result is that the
world will have generated the greatest total benefit from the limited,
scarce resources available in the world. Further, this will have been
accomplished without taking anything away from anyone unlawfully.
Classical liberalism
Equality before the law is one of the basic principles of classical liberalism.Classical liberalism calls for equality before the law, not for equality of outcome. Classical liberalism opposes pursuing group rights at the expense of individual rights.
In addition to equality, individual liberty serves as a core notion of
classical liberalism. As to the liberty component, British social and
political theorist, philosopher, and historian of ideas Isaiah Berlin identifies positive and negative liberty in "Two Concepts of Liberty",
subscribing to a view of negative liberty, in the form of freedom from
governmental interference. He further extends the concept of negative
liberty in endorsing John Stuart Mills' harm principle: "the sole end
for which mankind are warranted, individually and collectively, in
interfering with the liberty of action of any of their number, is
self-protection", which represents a classical liberal view of liberty.
In political theory, liberalism includes two traditional elements:
liberty and equality. Most contemporary theories of justice emphasize
the concept of equality, including Rawls' theory of justice as fairness.
For Ronald Dworkin, a complex notion of equality is the sovereign
political virtue.
Dworkin raises the question of whether society is under a duty of
justice to help those responsible for the fact that they need help.
Complications arise in distinguishing matters of choice and matters of
chance, as well as justice for future generations in the redistribution
of resources that he advocates.
Equality before the law
Law raises important and complex issues about equality, fairness, and justice. There is an old saying that 'All are equal before the law'. The belief in equality before the law is called legal egalitarianism. In criticism of this belief, the author Anatole France said in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread."
With this saying, France illustrated the fundamental shortcoming of a
theory of legal equality that remains blind to social inequality; the
same law applied to all may have disproportionately harmful effects on
the least powerful.
Meritocracy
According to meritocratic theories, goods, especially wealth and social status, should be distributed to match individual merit, which is usually understood as some combination of talent and hard work. According to needs-based
theories, goods, especially such basic goods as food, shelter and
medical care, should be distributed to meet individuals' basic needs for them. According to contribution-based theories, goods should be distributed to match an individual's contribution to the overall social good.
Social justice encompasses the just relationship between individuals
and their society, often considering how privileges, opportunities, and
wealth ought to be distributed among individuals. Social justice is also associated with social mobility, especially the ease with which individuals and families may move between social strata. Social justice is distinct from cosmopolitanism, which is the idea that all people belong to a single global community with a shared morality. Social justice is also distinct from egalitarianism,
which is the idea that all people are equal in terms of status, value,
or rights, as social justice theories do not all require equality. For example, sociologist George C. Homans
suggested that the root of the concept of justice is that each person
should receive rewards that are proportional to their contributions.
Economist Friedrich Hayek
said that the concept of social justice was meaningless, saying that
justice is a result of individual behavior and unpredictable market
forces.
Social justice is closely related to the concept of relational justice,
which is about the just relationship with individuals who possess
features in common such as nationality, or who are engaged in
cooperation or negotiation.
In legal theory, equity is seen as the concept connecting law to justice, since law cannot be applied without reference to justice. In that context, justice is seen as 'the rationale and the ethical foundation of equity'. Marxism is a needs-based theory, expressed succinctly in Marx's slogan "from each according to his ability, to each according to his need".
Equality of outcome
Equality of outcome, equality of condition, or equality of results is a political concept which is central to some political ideologies and is used in some political discourse, often in contrast to the term equality of opportunity.
It describes a state in which all people have approximately the same
material wealth and income, or in which the general economic conditions
of everyone's lives are alike.
Relational justice
Relational
justice examines individual connections and societal relationships,
focusing on normative and political aspects. Rawls' theory of justice
aims to distribute social goods to benefit the poor, but does not
consider power relations, political structures, or social meanings. Even
Rawls' self-respect is not compatible with distribution.
Iris Marion Young charges that distributive accounts of justice fail to
provide an adequate way of conceptualizing political justice in that
they fail to take into account many of the demands of ordinary life and
that a relational view of justice grounded upon understanding the
differences among social groups offers a better approach, one which
acknowledges unjust power relations among individuals, groups, and
institutional structures.
Young Kim also takes a relational approach to the question of justice,
but departs from Iris Marion Young's political advocacy of group rights
and instead, he emphasizes the individual and moral aspects of justice.
As to its moral aspects, he said that justice includes responsible
actions based on rational and autonomous moral agency, with the
individual as the proper bearer of rights and responsibilities.
Politically, he maintains that the proper context for justice is a form
of liberalism with the traditional elements of liberty and equality,
together with the concepts of diversity and tolerance.
In criminal law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendantconvicted of a crime.
Laws may specify the range of penalties that can be imposed for various
offenses, and sentencing guidelines sometimes regulate what punishment
within those ranges can be imposed given a certain set of offense and
offender characteristics. The most common purposes of sentencing in legal theory are:
Punishment imposed for no reason other than an offense being committed, on the basis that if proportionate, punishment is morally acceptable as a response that satisfies the aggrieved party, their intimates and society.
Society expressing its disapproval reinforcing moral boundaries
Reflects blameworthiness of offense
punishment in public
punishment reported to public
In civil cases the decision is usually known as a verdict, or judgment, rather than a sentence. Civil cases are settled primarily by means of monetary compensation for harm done ("damages") and orders intended to prevent future harm (for example injunctions).
Under some legal systems an award of damages involves some scope for
retribution, denunciation and deterrence, by means of additional
categories of damages beyond simple compensation, covering a punitive effect, social disapprobation, and potentially, deterrence, and occasionally disgorgement (forfeit of any gain, even if no loss was caused to the other party).
Evolutionary perspectives
Evolutionary ethics and evolution of morality suggest evolutionary bases for the concept of justice. Biosocial criminology
research says that human perceptions of what is appropriate criminal
justice are based on how to respond to crimes in the ancestral
small-group environment and that these responses may not always be
appropriate for today's societies.
There has been research into victim's perspective of justice
following crimes. Victims find respectful treatment, information and
having a voice important for a sense of justice as well as the
perception of a fair procedure.
Pemberton et al. proposed a "Big 2" model of justice in terms agency,
communion and membership in a society. Victims experience a loss of
perception of agency due to a loss of control, as well as a loss of
communion if the offender is a member of their social group, but may
also lose trust in others or institutions. It can shatter an
individual's trust that they live in a just and moral world.
This suggests that a sense of justice can be restored by increasing a
sense of communion and agency, rather than through retribution or
restoration.
In a world where people are interconnected but they disagree,
institutions are required to instantiate ideals of justice. These
institutions may be justified by their approximate instantiation of
justice, or they may be deeply unjust when compared with ideal
standards – consider the institution of slavery.
Justice is an ideal the world fails to live up to, sometimes due to
deliberate opposition to justice despite understanding, which could be
disastrous. The question of institutive justice raises issues of legitimacy, procedure, codification and interpretation, which are considered by legal theorists and by philosophers of law. The United Nations Sustainable Development Goal 16 emphasizes the need for strong institutions in order to uphold justice.
