Why Does The Law Both Embody Individual Liberty And Justice And Undermines It?

'Why is it that the law both embodies principles of individual liberty and justice and undermines them?' (Norrie, Crime, Reason and History, 13). Discuss.

In order to protect the individual it is necessary to protect the state and vice versa. This conflict is one which is extremely difficult to reconcile, and although through the evolution of the legal system it has been attempted there is still a long way to go. Due to human nature it is unlikely to ever really be possible to properly balance the needs of the state and the individual without causing some sort of inequality and a lack of justice. Perhaps the best answer to this is through very basic utilitarianism which states that "...an act is morally right if and only if that act maximizes the good." So following this principle the law should try to balance the two different interests in a way that maximises the good the law can do for society and the individual as much as possible. It is important to note that the interests are not necessarily conflicting, often principles of law that benefit the state itself also act to benefit individual members of the state. An obvious example would be the prohibition of murder. It could be postulated that banning murder stops someone from committing an act they wish to commit, but murder is bad both for society, and the other individual affected.

It is useful to note that there are two individuals involved in this argument. One is the individual who is having their liberty restricted, and the other is the individual who needs the protection of the state. Although, in practice these two people are the same, and can potentially suffer the same restrictions to their liberty, these issues cannot be effectively explored without remembering that what the state does to protect itself will also help to protect the individual members of that state.

"It can be said that the ultimate principle at the root of criminal law, and one which includes the principles of logic and legality, is the requirement of doing justice to individuals (cf Williams, 1961, 575-6; Lacey, 1988, 149)." Doing justice to individuals is certainly an important part of the criminal law, but claiming it is the ultimate principle is a step too far. The criminal law is decided by a select group of individuals; mainly members of parliament and judges, who are often (although not exclusively) from the upper echelons of society. In my view its main function is the protection of the state. It does embody methods of protecting individuals such as "the rules of evidence impose on the prosecution a standard of proof of `beyond reasonable doubt` and restrict the use of certain sorts of evidence." However, the individual is often not considered that important. For example, the relatively recent system of Criminal Records Bureau (CRB) checks means that someone can have a lower chance of obtaining a job working with vulnerable people for committing a low level offence with little or no relevance to the position. Laws like this penalise the individual in order to make the state a safer place. It is hard to deny that CRB checks will increase safety to the vulnerable, but this increase will come at a cost to other individuals.

One of the main aims of the law should be to treat all subjects to it equally. In practice this is somewhat difficult. "If all individuals are responsible citizens, punished as a matter of justice and right, then there is no need to recognise that this citizen was poor, unemployed, brought up in deprivation, or the product of a broken family." In the UK the law treats everybody equally; the Prime Minister is, in theory, just as indictable for theft as a homeless man. However, in practice a person from a more privileged background is less likely to need to commit theft due to a whole range of socio-economic factors. So does this mean someone who steals food due to starvation should be dealt with leniently? In order for the law to be effective it has to be strong, but it also needs to be respected meaning it must be just. Balancing the need to treat all equally before the law whilst taking into account the circumstances of different individuals is extremely difficult. Vining says, "Law dresses us with a veneer of rights, duties and responsibilities (legally conceived) that have nothing to do with the real needs and attributes of human beings," meaning it is not always possible for the law to be totally just. From a utilitarian perspective there is arguably more good to be gained from allowing a starving person to steal food; surely a death is worse overall than a theft? However, in order to protect society as a whole it is deemed necessary to restrict the 'starving thief' of his liberty.

In the U.K, "The law is administered from the perspective of a body of, mainly, men drawn predominantly from one social class and applied to another body, again mainly of men, drawn predominantly from another social class." In terms of equality in the law this is unfair. The protection of the liberty of individuals is likely to be starkly reduced when the law is implemented and criticised mainly by one section of society. The difficulty is that a good law maker needs to be well educated, and is more likely to have had an opportunity for this if from a more privileged background. Changing this would be an extremely difficult task, and although over time it may gradually occur, until it does the legal profession itself in the U.K is acting to prevent the law from protecting the individual liberty of members of every cross section of society.

Peter Ramsay says that, "An offender must, in addition to wronging her victim, deny to her victim the equal status of civil citizenship [in order to be punished]," This idea clearly shows the link between a person as an individual and a person as a citizen. People can be looked at in the context of the law as members of the state or as individuals in that state. There are often times when committing a crime against someone might not really have a negative impact on them. "It is theft dishonestly to appropriate £10 from a billionaire with the intent permanently to deprive," The billionaire will not even notice his money is missing, but you are restricting his freedom of choice. This is one of the ways the state really acts to protect itself and its citizens. Laws like this show just how intrinsically linked the state is to its citizens.

Retributive justice is the idea we need proportionality to balance the needs of the individual and the state. It can be argued that "[There is a] ...need both for individual justice and effective deterrence." Meeting this need is extremely difficult, Foucault (1979, 15) "...quotes Mably, a contemporary reformer, who wrote `Punishment, if I may so put it, should strike the soul rather than the body (I979, 16)'" These ideas about the law should help to some extent to protect the individual. A system involving corporal punishment is unlikely to offer sufficient protection to the individual; it should not be the job of the modern and civilised state to treat it's citizens with brutality. Keeping punishments proportional to the crime committed means people have a much fairer idea of the consequences a particular crime may have, and the state acting in a just, responsible and proportionate way should help educate it's citizens of the virtues of this type of behaviour.

Utilitarian deterrence developed because terror as a means to control crime was not working effectively. The theory "...argued that free individuals could work out for themselves that the costs of punishment might outweigh the benefits of crime." In this theory the punitive measure taken would outweigh the crime, but not by too much. It was thought that "...to a calculating subject, punishment need only just exceed crime in its severity for it to be an effective deterrent." This idea seems to most represent where the law in the U.K is at today. It is not ideal, and does mean that situations can arise where sentences seem preposterously short, for example a nine year sentence for committing a violent rape. In cases where a sentence is seemingly too short this is grossly unfair on the individual victim of the crime, but this seems to be the cost of having a balanced and proportionate justice system. Utilitarian justification for the law helps to rectify some of the unfairness which can occur to the individual. We can justify the pain of some as it helps to bring about a system which maximises the good for the many. However, a system which is too utilitarian will always be in danger of persecuting the individual in order to protect society as a whole.

Bentham's utilitarian theory said that, "Inefficacious punishment was useless evil. Bentham accordingly supplied a list of candidates for exemption from punishment... 'individuals who could not know the law, who have acted without intention, who have done the evil innocently, under an erroneous supposition, or by irresistible constraint.'" The effective exemption of these groups from normal criminal proceedings is one of the strongest ways the law helps to protect the individual, and possibly at a cost to the state. If a person has (totally innocently) caused some loss to another, in terms of the protection of the state it is perhaps best that this person is still punished or removed from society. The U.K has moved to a position where certain vulnerable groups are well protected from criminal prosecution, and this really has helped to protect the liberty of individual people who have not purposefully acted to bring about 'a loss.'

It can be stated that "[Utilitarian Deterrence] ...reached a similar conclusion to retributivism in terms of the need for principles of individual responsibility and proportionate punishment." It is vital that an individual takes some responsibility for their actions within the state. "Even in a private prosecution, brought by the victim of a crime, `the victim takes the initiative as the representative of society as a whole.'" Two important issues are brought up here, one that a citizen of a state will benefit from his citizenship. For example in the U.K you benefit from things like the National Health Service, the education system and human rights protection. Receiving benefits from the state means you also owe it a duty as an individual to, for example, "take[s] the initiative as the representative of society as a whole," to help prosecute a crime. The close link between the state and the individual means it is nearly impossible for the law to not to both protect and undermine principles of individual liberty and justice. The individual and the state should not and cannot totally separated by the law. It is arguably one of the main functions of the state to protect its citizens, and in turn its citizens owe it a responsibility. In order for the law to work satisfactorily it must take into account both the needs of individuals and the needs of society as a whole.