Aspiring Lawyer Online

A few interesting cases!

The Law can often, by those who have limited interest in it, be perceived as dull. Boring. However, this is not the case. Not only is it a fundamental aspect of society, and one without which it is arguable we could not function, there are also a number of fascinating cases throughout history. I will outline here just a few of those that I find particularly engaging.

Procter & Gamble UK v HM Revenue and Customs

This case focused on a classic, well-loved tubed snack: Pringles. In the UK, there is a 20% VAT on items regarded as luxuries, such as ice cream, cereal bars, cake decorations, and, crucially for this case, crisps. Expectedly, Procter & Gamble (producers of Pringles) did not want to pay this 20% VAT, which would come to a total of around £100 million if Pringles were in fact considered crisps. It may seem bizarre that Pringles could not be regarded as crisp. On the packaging, however, they are described as a “savoury snack”, and in 2008 a judge ruled that, because Pringles were only 3% potato flour and 39% vegetable oil, they weren’t crisps, as they could not be argued to be made of potato flour. But in 2009, HMRC took the case to the Court of Appeal, and despite Procter & Gamble’s strenuous arguments that there’s nothing crisp-like about a Pringle, HMRC won and Pringles were judged to be crisps.

Pringles® Savoury Snacks Original — See the description ‘savoury snack’ here

2. R v Dudley and Stephens

If you were stranded at sea with two others, how far would you go to stay alive? How far would you go to get food? Would you resort to cannibalism? Necessity. Surely, you would be killing to stay alive, thus you would not have had any other choice. This is not always an adequate defence, as highlighted by R v Dudley and Stephens. In 1884, Tom Dudley, Edwin Stephens, Edmund Brooks and Richard Parker were shipwrecked and stranded in a lifeboat, 700 miles from the nearest land without any fresh water and with just two tins of turnips to eat. This was the situation of the 5th of July. But by the 17th of July, they had eaten the turnips and a whole turtle that they had caught. By the 24th of July, Parker was in a coma. Dudley and Stephens, having realised that they had no other way to stay alive, killed Parker, and the remaining men (including Brooks) resorted to cannibalism. On the 29th of July, they were rescued: 24 days after they first found themselves on the lifeboat. Public opinion was strongly sympathetic to Dudley and Stephens, and so, when the case came to trial, their defence was paid for by public opinion. The judiciary, however, wanted to establish that necessity was not a defence that could be used for murder. Therefore, Dudley and Stephens were convicted of murder but were only sentenced to 6 months in prison.

3. Liebeck v McDonald’s (US)

On the 27th of February 1992, Stella Liebeck ordered a cup of coffee from a McDonald’s drive-through, for 49 cents. She was in the passenger’s seat of a car that did not have cup holders. While adding cream and sugar to the coffee, Liebeck put the coffee between her knees and removed the lid but accidentally spilt the entire cup. Because she was wearing cotton trousers, they absorbed the coffee and fused to her skin, causing third-degree burns. She spent 8 days in the hospital, undergoing skin grafting, and she lost 20 pounds and needed extra care for three weeks. She was partially disabled for the next two years. Liebeck sought $20,000 from McDonald’s to cover her medical expenses, but they only offered $800. So, she filed a lawsuit against the chain, accusing them of gross negligence for selling her coffee that was “defectively manufactured” and “unreasonably dangerous”. After two more attempts to settle the suit out of court, and McDonald’s refusing both times, the case went to trial. During the hearings, it was revealed that they had received more than 700 reports of people being burned by their coffee. The jury, therefore, found McDonald’s to be 80% responsible for the incident and awarded Liebeck $200,000 in compensation. She then also received $2.7 million in punitive damages, calculated as two days’ worth of coffee sales for McDonald’s.

White Coffee - 100% Arabica Bean Coffee | McDonald's UK

4. R v Thabo-Meli

In 1954, four men in a gang decided to murder someone and make it look like it was an accident. They brought the victim to a hut, where they made sure he was heavily drunk and hit him on the head with the intent of killing him. They believed that they had killed him (although they had only knocked him unconscious), so they threw his body over a cliff, and he survived that, too, but later died of exposure. To commit murder, you need to have a mens rea (guilty mind) and actus reus (guilty deed) at the same time, that is to say that killing someone when you didn’t intend to isn’t murder, and thinking of killing someone but not doing it isn’t murder either. At trial, the four men argued that they had intended to kill him in the hut, but actually killed him by leaving him exposed to the elements at the base of the cliff, therefore the mens rea and actus reus did not happen at the same time. The ruling, however, sustained that it was all part of the same act, and found them guilty of murder.

Just 4 cases here, but they give a fascinating insight into the interesting nature of the law and all it encompasses.

Scarlett Johansson v. Disney

An update on this post:
Johansson and Disney have since settled this lawsuit, but have not disclosed the exact details of the agreement. We do also know that Johansson is continuing to work with Disney on upcoming projects.

Aspiring Lawyer Online

While the media may have decided that Disney have lost their battle against Scarlett Johansson, the legal question surrounding the issue is extremely important.

Johansson, who has starred in 9 Marvel movies over her decade acting as Black Widow, claims that the Walt Disney Co. breached her contract last month, when the Black Widow movie was released in theatres and on Disney+. She argues that because her compensation depends largely on how well the film performs at the box office, with the at home release reducing her earnings. There is a fundamental issue that constantly arises in discourse surrounding the lawsuit. Compensation is contingent on a future event, a ‘trigger’: closing a deal, hitting a sales target, or selling a certain number of copies of an album, or a book. The question that stands therefore, is whether the party that is making a payment is obliged to allow the triggering…

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Lloyd v Google

On the 10th of November 2021, the Supreme Court handed down their verdict in the case of Lloyd v Google LLC. The UKSC ruled in favour of Google, blocking the class action claim brought before them, meaning that there are no longer any grounds for appeal in this matter.

Richard Lloyd, a consumer rights activist and a former director of Which? Magazine, and the ‘Google You Owe Us’ campaign allege that during the period between June 2011 and February 2012, Google bypassed the default privacy settings on iPhones, obtaining personal information illegally. Google’s business model involves using personal data to help sell targeted advertisements, but the claimants allege that this is in breach of data protection laws. Legal action was launched in November of 2017, claiming that millions across England and Wales may be affected by this. In May 2018, this case was heard in the High Court, before Mr Justice Warby, who blocked the group litigation, but a Court of Appeal judgement allowed the case to continue.

The case was heard by the Supreme Court on the 28th and 29th April 2021 and, if successful, would have meant that millions of iPhone users would have been entitled to £750 each in compensation. At the time of the alleged breaches, the Data Protection Act of 1998 was in place, and these are the ground on which Lloyd brought to civil claim to court.

When giving the ruling, Lord Justice Leggatt said that the intention of giving damages to millions of iPhone users without any need to prove financial losses or mental distress was ‘unsustainable’. He said: ‘What gives the appearance of substance to the claim is the allegation that Google secretly tracked the internet activity of millions of Apple iPhone users for several months and used the data obtained for commercial purposes. But on analysis, the claimant is seeking to recover damages without attempting to prove that this allegation is true in the case of any individual for whom damages are claimed.’

However, the nature of this case as a representative action suit was problematic for its success. Each member of the class must have the ‘same interest’ in the claim, so the compensation sought for each must be the same, hence the £750 per capita claim. In order to argue the case, Lloyd had to frame the case in a ‘lowest common denominator’ way, meaning that his claim had to be that the damages were a ‘loss of control’. This was an element that proved fatal for the case. Had he decided to personally claim damages for distress under the old Data Protection Act 1998, or claim compensation for misuse of private information without needing to show any material damage, his chances of success may have been greater. However, he chose not to pursue either of those claims. The Supreme Court noted that establishing that all of the affected individuals had a legitimate and reasonable claim would require assessment of the situation of each individual member of the class. This is incompatible with the ‘same interest’ requirement. The Court also noted that a claim like this, relating to the Safari Workaround, would have been better off as a claim for misuse of private information. Also, in the claim that was brought to the Court, there would have been the issue of the distribution of the money.

The case has been interesting and the verdict in support of Google will no doubt have implications in the future of data handling and GDPR. Other major data protection class actions are also now likely reviewing their future and chances of success.

This controversial case has been hugely interesting, and the legal discourse surrounding its impact will certainly continue into future years.

Clifford Chance Insight Day

Clifford Chance is an international law firm, headquartered in London, and a part of the Magic Circle. With key practice areas in corporate, global financial markets, dispute resolution, real estate, and tax, pensions & employment, the firm have a truly global team. The Insight Day offered on the 26th of October, via Zoom, was a brilliant experience to learn more about Clifford Chance!

Clifford Chance begins redundancy scheme | News | Law Gazette

We heard from the Head of Undergraduate Talent, Laura Yeates, who introduced us to who CC are and what they do. After this, we listened to a range of trainees and future trainees, from Alaa who is a university student, set to join the firm in 2023, to a fourth seat trainee, Felicity. This part of the day gave a brilliant look into the stages of becoming a solicitor, and the speakers spoke very honestly about their experiences.

We looked at a fictional Mergers and Acquisition case study, in a session led by Adrian Levy, in which Photogram wanted to buy TikTak from Orange. Three newly-qualified solicitors at CC took us through the timeline of such a deal, from investigations to closing the deal completely. We looked at three key issues in this deal. The first was logo theft, in which TikTak was facing a lawsuit. There were 4 main solutions: reduce purchase price; call off the deal completely; slow down the deal until the lawsuit is resolved; include contractual protections. The second issue was a rogue team member, who has been accused of taking bribes, and this has made headline news. The options to deal with this are: conduct an investigation; suspend the employee; dismiss the employee; inform investors and employees; issue a public statement. The final issue was the influencer contract that was a large part of Photogram’s desire to buy TikTak, but his contract has a clause that meant that the influencer could terminate the deal in the event that the owner of TikTak changes. In this problem, the first step is to ask whether the influencer plans to terminate, and then maybe make the purchase conditional on the influencer not terminating. After this, the negotiation and drafting stage takes place, and in this, we looked at some redrafting of certain clauses to make them airtight. This was a brilliant and engaging session, which encouraged me to look into a career in M&A.

The Intellectual Property session, led by Leigh Smith and Laura Hartley, introduced us to the field of IP, and some of the key types of IP. In his discussion of trademarks, I was intrigued to discover that the shape of London taxis and the smell of cut grass for tennis balls had both been, at some point, trademarked. Patents and copyrights are very interesting. One particularly interesting fact that Mr Smith introduced was that products produced by AI cannot be patented under current law, as they must be created by humans. Then, we looked at another case study, this time based on a social media influencer marketing campaign for the Vegan Milk Collective. I found this session really interesting!

Liam Porritt then joined us, which was amazing! We delved into his vlogging about law, and he taught us the importance of good personal branding. I will now, definitely, be working on my elevator pitch!

The day was excellent, and I learnt a lot from all the speakers. My thanks go to the Young Professional team, especially Dan, who ran the event today, and, of course, to the Clifford Chance lawyers who spoke to us today. Your wisdom and advice have been invaluable!

Scarlett Johansson v. Disney

While the media may have decided that Disney have lost their battle against Scarlett Johansson, the legal question surrounding the issue is extremely important.

We can consider an example: if an associate, who has been promised a bonus when they reach $2 million in annual sales, reaches $1.5 million, can their employer move them to a lower paid job to avoid paying the bonus? No, they would be acting in ‘bad faith’. It is not in ‘good faith’, because it undermines the underlying assumption that they would be maintaining that role, with the intention of not having to pay the bonus.

There are critics of the notion of ‘good faith’, arguing that it gives judges too great a degree of discretion to rewrite agreements. However, the standard is enforced anyway, and film studios have been successfully sued for breach of ‘good faith’ in agreements. Two key examples of this are the 1983 case of Smithers v Metro Goldwyn Mayer Studios Inc., and the 2010 case of Ladd v Warner Bros Entertainment Inc.

Johansson’s case against Disney relies on the determination of what background assumption they shared, alleging in her complaint, that the parties understood the contractual promise that Black Widow would have ‘wide theatrical release’, meaning it ‘would remain exclusively in movie theatres for a period of between approximately 90 and 120 days.’ Johansson also asserts that this is the industry standard and Marvel’s own practice, and that, by releasing the film on Disney+ at the same time as its cinema entrance, the shared assumption was violated. Johansson and her lawyers argue that ‘good faith’ would have meant negotiating a settlement before moving Black Widow to the simultaneous release on the big screen and at home. Her complaint also notes that Warner Bros Entertainment Inc. negotiated $200 million in deals with various actors, who also had compensation linked to their film’s performance in cinemas, whereas Disney allegedly refused to discuss the matter.

Under California law, as she is suing Disney rather than Marvel, Johansson must prove that Disney committed a tort by forcing its subsidiary to act in faith. Her complaint attempts to do so by arguing that the compensation of Disney executives relies on the growth of Disney+, therefore they are at cross-purposes.

Disney released a statement in which they called the lawsuit ‘especially sad and distressing in its callous disregard for the horrific and prolonged global effects of the COVID-19 pandemic.’ Legal commentators suggest that if this approach is foretelling of their legal defense, one can expect the argument that the motive for joint release is not in bad faith at all, rather that, in order to avoid large crowds of people going to cinemas, risking Covid-19 infection, they allowed people the option to watch at home. This is not a bad argument, though it may remain down to the courts to decide which party to the contract should bear the risk surrounding the pandemic.

Ultimately, both sides make good points in this case and whatever the outcome, it will likely shape the future of Hollywood and entertainment law.

Equality and Diversity in Courts

In a society where discussions surrounding equality and diversity are becoming ever more prevalent, these discussions seem to often overlook the imbalance of gender representation in judicial systems. Judicial diversity is so important for the sustainability of our legal system. In a common law system, like that which we have in England, judges have great power in making and shaping laws through precedents. Therefore, if judges are drawn from one sector of society, the law will inevitably also tend to favour one group.

Lady Hale expressed this in her speech ‘Women in the Judiciary’ in 2014.

‘If the people in charge of the justice system are overwhelmingly from one section of society, then the justice system does not reflect the very values it is there to uphold.’

She later said that ‘the public should be able to feel that the courts are their courts; that their cases are being decided and the law is being made by people like them, and not by some alien beings from another planet’. This is extremely important. The public must have trust in their judiciary, and that can only really arise from appropriate representation of the population.

Judiciary UK, in a 2019 report, said that 32% of all judges were female, and 7% of all judges were of Black, Asian, and other minority backgrounds. Furthermore, 74% of judges were educated at Oxbridge. These figures are overwhelming. But, when we look at Europe’s averages, we can see that the UK is trailing far behind. As reported by the Guardian in 2016, the European average is 51% female judiciary, with Romania leading with 74%.

These facts spark discussion around why this is the case. There are three main reasons that frequently arise during this discourse.

While the Council of Europe, in 2014, determined that British judges are the highest paid in the EU, we have one of the greatest gender disparities on the bench. Lady Hale argues that one of the main factors for this is because of the Gender Pay Gap, meaning that women aren’t getting paid as much as men in the equivalent barrister position.
A second reason is that, while women are generally progressing to the exact same position as men until their mid to late 30s, they aren’t progressing at the same rate afterwards. Ms Bacik, a barrister herself and a co-author of the Gender in Justice report says that ‘they’re taking time out of their careers [for motherhood] and the careers aren’t accommodating that.’
A final key reason is sexual harassment. At a Gresham College lecture, Prof. Delahunty spoke about the fact that widespread sexual harassment at the bar was not being reported, because pupils and trainees fear that their careers will suffer if they do report it. The Bar Standards Board has only received two complaints of harassment over the last five years, but the Bar Council has set up a helpline to support those who have experienced harassment.

The question that stands, therefore, is what can be done. A vital first step is to encourage more widespread discussion regarding these issues in the legal system, thus creating greater awareness. Aside from this, there are three key things that can be done.

One suggestion that is present in the current discourse is the creation of greater flexible working structures, which would allow judges with potential to be acknowledged and helped to ascend more quickly.
Broadening the pool from which candidates at all levels are recruited is a further important step. Barristers should be recruited to the bench based on legal abilities, personal qualities, and potential. Lady Hale said: ‘It really bothers me that there are women who know or ought to know that they are as good as the men around them, but who won’t apply for fear of being thought to be appointed just because they are a woman.’
The process of incorporating gender equality will, inevitably, take some time, as it must be implemented in all generations. Lord Sumption has suggested that gender equality in the judiciary would take at least 50 years, but that in the history of the society we are living in, ’50 years is a very short time’. If friendly discourse is encouraged though, it is possible that this time frame can be improved. Toxic messages, however, like Lord Sumption’s views that women are ‘unwilling to tolerate long hours’, encapsulate the sexist culture that pervades the legal system. People should be having constructive conversations and educating those around them with facts, rather than the unhelpful lies that many are spreading.

Equality issues are finally being recognised. Discussions are finally happening, but to encourage meaningful change, more must be done. If more people understand the dangers of the lack of judicial diversity, there will be more calls for this to be tackled. Therefore, the first step that must be taken is creating awareness.

‘The law, the legal profession, and the courts are there to serve the whole population, not just a small section of it. They should be as reflective of that population as it is possible to be.’

Four Ways to Fix a Broken Legal System – Philip K. Howard (Ted Talk)

The legal system is the corner stone of any modern society, and one of its most basic promises is the delivrance of justice. It is something that we rely on. Why, then, are we seeing so many failures when it comes to this promise? Our legal systems are currently underfunded, unfair, and too complex for any normal citizen to understand.

As we look at any legal dispute, we so often want to judge it against the ideal of a ‘perfect society’. A society where we all agree on what is right and what is wrong. This society is a utopia, though. This ideal is not the basis of the society we are currently living in. Therefore, in his Ted Talk, Philip K. Howard presents to his audience four ways in which the legal system can be made simpler.

We must judge law mainly by its effect on broader society, not individual disputes.

To do this, we must zoom out and look at the wider data. Mr Howard does this for his audience in his talk, he says: ‘the healthcare system has been transformed: a culture pervaded with defensiveness, universal distrust of the system of justice, universal practice of defensive medicine. It’s very hard to measure because there are mixed motives. Doctors can make more on ordering tests sometimes, and also they no longer even know what’s right or wrong.’ This overwhelming legal fear that many medical professionals hold can cause thousands of tragic mistakes in US hospitals. Furthermore, schools are also drowning in law. In the US, there are thousands of discreet rules and 60 steps to suspend a student from a school. Facts like this are, inevitably, causes of paralysis. The state of the legal system currently is a recipe for failure.

2. Trust in law in an essential condition of freedom.

Society is complicated enough without the added issue of legal fear. Law is an uncertainty that carries with it the power of the state though, so it becomes something much more powerful. It can actually change the way people are thinking, driving people from ‘the smart part of the brain’, and towards ‘the thin veneer of conscious logic’. In this way, medical professionals wind up ordering unneccessary tests for fear of legal action, and so in the US $200 billion of medical bills are racked up for almost no reason. When we cause professionals to begin doubting themselves, they make worse judgements. The question, therefore, is how do we restore that trust. Tweaking the law alone is not enough. What needs to happen is the establishment of a dry ground of freedom. This introduces the third proposition Mr Howard makes.

3. Law must set boundaries protecting and open field of freedom, not intercede in all disputes.

Law can set boundaries, which from one side are all the things that you cannot do or that you must do, but also define and protect freedom. We need to rebuild the boundaries that can impact that change, because what someone can sue an establishment over immediately impacts the society around. If a lawsuit is brought forward over a child being injured on a swing, no matter the outcome of the lawsuit, one can anticipate that swings will be removed, because people don’t want to run the risk of facing legal action.

4. To rebuild the boundaries of freedom, we must simplify the law and restore authority to judges and officials to apply the law.

The law has to be simple enough so that people can internalise it, so they can trust it. But how exactly can we do that? Perhaps the hardest change: restore the authority of judges and officials to interpret and apply the law. It needs to be rehumanised. To allow people to trust the law, to simplify it, we must have people who can apply the law, using their judgement, and in accordance with reasonable social norms.

These four things, if properly effected, could change justice systems for the future, making it fairer and easier for all to understand. Society needs to have faith in the legal system if it is to develop and thrive, allowing for everyone to be equal.

Philip K. Howard: Four ways to fix a broken legal system | TED Talk

How forgiveness can create a more just legal system

I recently watched Prof. Martha Minow’s 2019 Ted Talk, titled ‘How forgiveness can create a more just legal system’, and found the ideas she presented very interesting. Mandela once said, “resentment is like drinking a poison and hoping it will kill your enemies,” and this is something that feels awfully significant when we consider modern legal systems. Forgiveness is a practice that is encouraged in every religion, and there are even medical studies that provide evidence for the positive impacts it can have on health, and so it seems strange that it is not something that has been more widely implemented into the legal systems globally.

Professor Minow opened her talk with the case of Dallas PD officer Amber Guyger’s guilty conviction in the murder of Botham Jean, whom she shot when she entered his apartment, having mistaken for her own and thought he was an intruder. After the court heard the guilty verdict and she was sentenced to 10 years in jail, Brandt Jean, Botham’s brother, did what for many would be unthinkable – with the judge’s permission, he went and gave her a hug. He publicly forgave her for what she did.

Brandt Jean, 18, hugs former Dallas police officer Amber Guyger, 31, on Oct. 2, 2019, in Dallas. — The hug of forgiveness that sparked international debate over legal forgiveness

In the US and in the UK, the law tends to lean overwhelmingly towards punishment rather than forgiveness; lawyers often overlook the legal tools they have to encourage a system of forgiveness, like pardons, expungement and commutations (in the US), and bankruptcy for debts. The law has the ability to remove penalties and allow people to start afresh, while still enforcing a system through which people are held accountable.

However, when these means are used, they often reflect the vast disparities in society, whether that is along race, gender, or class boundaries. Historically, in the US, white people are pardoned four times as often as BIPOC Americans for the same crimes. Here rises one of the major issues with such forgiveness tools: it could undermine the duty of the law to apply the rules to everyone equally. This is a valid concern and an important point to raise during these debates, but, particularly in the US, we are seeing a period of mass incarceration. On average, black men are serving sentences 20% longer than white men, so the same argument can be made about the legal system as it currently is: it is not an equal system. Furthermore, with the appropriate method of implementation, it could offer a much-needed reset to the system across the board. It could allow people to rebuild their lives and have a system of reconciliation with their communities, in a way which the defensive and adversarial systems we are so used to do not.

Professor Minow used a striking and memorable example of restorative justice in action:

A girl in California, Mercedes M., had transferred schools after being suspended, and in this new school, two girls accused her of lying. A counselor spoke to her, and managed to build up trust, so she acknowledged she had stolen the shoes of one of the other classmates. The counselor then encouraged the girls to sit and talk about what had happened, rather than fighting. After the girls had expressed their emotions, Mercedes apologised. She told the girls that she wanted to sell the shoes, to allow her mother to take a drug test to prove she was clean, and try and win back custody of her two younger children. The girls did not ask her to return what she had stolen once they heard this, but rather they wanted to start anew with her. Later, Mercedes said that she was sure the situation would have ended in her suspension had this restorative justice process not been used.

These systems have become the go-to method in places like the District of Columbia Juvenile Justice System and LA’s Teen Court, and could soon become the appropriate method in more cases globally.

The debates that have been happening surrounding restorative justice have inspired global projects. A particularly notable one was the collaboration between Jubilee 2000, Pope John Paul II, Bono, many other celebrity figures, and 60 nations, in cancelling around US$100 Billion of debt for emerging nations, leading to a huge reduction in poverty and an opportunity for growth. John Oliver partnered with US non-profit RIP Medical Debt in purchasing millions of dollars of medical debt for $60,000 and they then forgave all of that debt. That allowed 9000 people to get a restart in their lives. Efforts like this should set a wonderfully constructive precedent for change in our society.

One cannot ignore the prospect that forgiving violations of laws poses a risk of repeated offences (something called ‘moral hazard’), but resentment and blame pose great risks too. But in the society that we are presented with now, with the right strategy and approach, the benefits of a changed system could be great. Forgiveness before the law does not mean that we ignore the wrongdoing that has happened, but rather enabling new choices that come with wiping the slate clean for people.

The link to watch the talk is below:

Martha Minow: How forgiveness can create a more just legal system | TED Talk

Is Justice a Precondition of Law?

(This is an essay I submitted to the Minds Underground Essay competition, for which I was highly commended.)

It is one of the most basic of any legal system’s assurance: their promised deliverance of justice. However, the question of whether justice is a precondition of law is one that has continued since the work of Plato circa 400BC, nearly 2500 years ago. Legal philosophers over many years have introduced a myriad of arguments and theories surrounding this, however, considering arguments from both sides, at present, justice is not a precondition of law.

Before getting into the arguments, one ought to lay out the definitions of the two key terms: ‘justice’ and ‘law’. This alone could call for an essay, even a book, of its own. One could delve into the works of Bentham, Aristotle, and other great philosophical minds. For this essay, I will be taking ‘justice’ to mean fairness and moral rightness, so as to avoid any complications (Law.com, n.d.). Due to the vast array of different schools of legal thought, there is no single, universally accepted definition of ‘law’. As such, I will take the most basic definition, as found in the Oxford English Dictionary: ‘a rule of conduct imposed by authority’ (OED Online, n.d.).

The Rule of Law consists of four key principles: accountability, that is the government and private entities being held to the word of the law; just laws, being clear and stable and protecting the fundamental rights of all; open government, demanding that the process by which laws are enacted is fair and efficient; and accessible justice, meaning that all judgements are to be given by an independent and neutral party, and delivered ethically (World Justice Project, n.d.). This means that justice must be a precondition of law – the idea featured in two of the four. However, so often we find that justice gets lost somewhere along the way. We can see this injustice everywhere, so how can we argue that law is inherently fair?

The complexity of justice presents itself in a number of debates that have continued for many years, decades even, and one’s understanding of fairness in these circumstances depends on one’s beliefs. Perhaps one of the most prominent examples of this is abortion. In the UK, under the Abortion Act of 1967, a doctor may carry out an abortion, which has been previously authorised by two other medical professionals, up to the 24^th week of gestation. This is a controversial document; while some think that this legislation is vital for the protection of women’s rights and their control over their bodies, others believe that abortion is murder and should not be legal at any stage during pregnancy, no matter the circumstances. Looking at an issue as widely discussed as this, with strong support for both sides, how does one determine what is just here? Different schools of philosophy may tell us that the law allows for the greatest happiness for more women, taking a utilitarian perspective, however others may argue that the future of the child is unknown. A point made often by those who oppose the law is that perhaps the foetus may grow up to save lives or find a cure for cancer, therefore how can it be right to go ahead with the procedure. This is just one example of how complex justice is, and considering this, justice cannot be a precondition of law, if a law cannot bring justice to everyone.

Another level of nuance comes with the understanding that justice is not fixed – it changes all the time. What 50 years ago may have been considered fair and right may be disgraceful in modern society. Throughout history, we can see an innumerable array of laws which many of us would now consider lacking any fundamental justice. Nazi Germany provides a clear example, in their 1935 Nuremberg Laws. This legislation stripped Jewish people of their German citizenship, forbade the marriage of an ‘Aryan’ and a Jew, and banned Jewish communities from wearing ‘colours of the Reich’ (Kroslak, 2015). This led to Jewish families being segregated from the towns and cities they had likely lived in for many generations. We would now consider the actions taken in the 1930s under Hitler to be absolutely appalling, but there were masses of the German public that supported the legislation. These were laws but showed no justice as we would consider it. Similarly, we could consider segregation laws as an example of the changing perception of this concept. The Jim Crow Laws, for example, enacted in the late 19^th and early 20^th centuries, and have a lasting legacy, reimplemented widespread racial segregation in the American Southern States. (Mack, 1999) A marriage or union between a black and a white person was forbidden, children of different races could not go to the same school, white nurses could not tend to black men. These were just some of the regulations put in place in order to fuel a sense of ‘white superiority’ and they called back to the time of slavery in the Confederate states. This goes against any sense of modern justice, though the vast majority of the white population supported them, having had the understanding that white people were ‘Chosen by God’. In 2021, people would consider this completely unfair, but they remained valid documents until 1964, when the Civil Rights Act was passed. This not only shows the shocking way in which societies made it possible to legally persecute people because of their race or religion, but also that we cannot argue that justice is a precondition of law.

Critical Legal Studies is a branch of legal philosophy that argues that laws are enacted to support the interests of those who created them and are in power. It is inherently linked to social biases and helps maintain a certain status quo. A tyrannical leader will therefore implement tyrannical laws, and a democratic authority democratic laws. (Tamirat, 2015) If we consider it through this lens, the role of justice in the law must be limited. Where law is serving as a device to manipulate members of society to submit to the will of their leaders, then one cannot consider justice to be present, or to be a precondition of such principles. A key part of CLS is the understanding that the law tends to serve the wealthy, subverting the demands of the subaltern. (Hutchinson, A., and Monahan, P.J., 1984) This is vital in answering the question of whether justice is a precondition of law, as while many laws claim to be in the interest of the poor or minority communities, they are often simply not. These groups do not receive their promised justice. There must be significant reform in order to realise the objective of justice, but this change is far too great for current legal discourse to recognise.

On the other hand, one may argue that justice cannot come without law, therefore they must be closely connected. As D’Amato argued in his 2011 paper, in any legal proceeding, the law shapes testimonies and stories, meaning the justice in the situation is also influenced, and thus they must be inherently linked. Consider the following example: you are on a walk down a country lane, and you find a blackberry bush and begin to eat them. A police officer then arrests you. Is this just? We cannot answer this question until we examine the laws in place here, for example were you on private land? The judge would not be able to make a fair decision without the appropriate legislation considered. Therefore, justice and the law must be connected in such a way that makes one impossible without the other.

Naturalist Law Theory is a branch of jurisprudence that argues that justice is the foundation of the law. People who follow this philosophy would say that human laws are defined by morality, not by an authority. (Murphy, 2019) This theory states that all people are to live a good, happy life, and any action that makes this impossible is immoral; it also suggests that a law that cannot provide justice is not a law at all. As such, the relationship between legality and morality is one that runs so deep, that perhaps they are actually one and the same. Moreover, the definition of an ethical deed, in this school of thought, is not subjective – ‘right’ and ‘wrong’ are the same for everyone. Therefore, the argument of differing justice depending on the side of the debate would be null and void. This is a key limiting factor of this branch of jurisprudence, as we can see, globally, how people’s perception and understanding of justice and what morality looks like varies.

The debate on the connection between law and justice will likely continue to rage for the next 2500 years, as the focus of legal discourse moves towards what really needs to be done to make justice accessible for every person. But considering the key arguments, as Gloria Steinem said, ‘law and justice are not the same’, and ultimately, justice is not a precondition of law.

Bibliography:

Oxford University Press OED Online, accessed 20/01/21, ‘Law’ Definition [Online], law, n.1 : Oxford English Dictionary (oed.com)

Law.com, accessed 20/01/21, ‘Justice’ Definition [Online], Legal Dictionary | Law.com

World Justice Project, accessed 21/01/21, ‘What is the Rule of Law?’ What is the Rule of Law? | World Justice Project

Kroslak, D., 2015, ‘Nuremberg Laws’

Abortion Act, 1967, Section 1, Subsection 1 (a)

Mack, K.W., 1999, Law, Society, Identity and the Making of the Jim Crow South: Travel and Segregation on Tennessee Railroads, 1875-1905

D’Amato, A., 2011, On the Connection Between Law and Justice

Tamirat, accessed on 23/01/21, ‘Law as a means of Serving Justice’ Law as a means of Serving Justice (abyssinialaw.com)

Murphy, M., 2019, ‘The Natural Law Tradition in Ethics’, https://plato.stanford.edu/archives/sum2019/entries/natural-law-ethics/

Hutchinson, A., and Monahan, P.J., 1984, ‘Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought’

My First Post!

Hello Readers!

As you can see from the title, this is my first ever blog post, so I thought I would start with a bit more about me. My name is Skye and, for many years now, I have wanted to be a lawyer, in this ever-developing, globalised world. I am in secondary school and beginning my journey into the industry, through lectures, question panels, and (due to the pandemic) virtual work experience programmes. My aim for this page is to share what I have learnt through those events.

I have wanted to be a lawyer for many years, because I want to be able to help people and advocate for justice and ensure that everyone gets their due process. The legal system is fascinating to me, and the connection between legality and morality is a topic that I would really like to look further into. I cannot wait to get stuck into the legal industry and begin to update my blog more regularly!