03 May 2013

Day 220: Justice and Human Rights - Part 2

This blog-post is a continuation to
Day 118: Justice and Human Rights

Legal Justice - Procedural

As said in the blog 'Day 118: Justice and Human Rights', Legal Justice entails both procedural justice and substantive justice.

Procedural justice, otherwise known as formal justice, refers to the procedures that are followed when making rules. It has to do with how decisions are made, not what the decisions entail. Substantive justice, as the term indicates, has to do with the substance or content of the decisions.

Procedural justice is underpinned by two important principles:
1. That all members of the population are equal before the law and thus, that no discrimination may occur on any basis. This requires 'impartial judges' who will not allow bias within the decision-making process. We will get back to this subject at a later point in the discussion.
2. That all is innocent until proven guilty beyond a reasonable doubt.

The second principle partially shines a light on what society regards as being ' moral justice'. When a situation of harm occurs, what is done in our current legal system, is to pin-point the one party that is guilty for the harm caused. During trials - many factors and participants are often identified as possibly having contributed to the harm - but if there is no proof that this factor/participant is the origin of the harm - then there are no further consequences. This obviously raises concern - because it would mean that accountability and responsibility is a very limited concept in our current understanding - where we believe that we are only accountable and responsible for harm that actually took place as a result of our actions. But the truth is - we are responsible and accountable for any harm that COULD take place as a result of our actions. If during trial, many factors and participants are seen to have possibly contributed to the manifestation of harm - then why are these points not addressed, so that - even if in this particular case these factors/participants were not the cause of the harm - that the possibility of harm manifesting as a consequences of these factors/participants' behavior is ruled out?

Is justice only trying to find blame and claim reparation for damages that were suffered? Or does justice also entail the prevention of possible harm? We can ask if those participants whose behavior was identified to have possibly caused the harm (even though it happened to not be the so in the particular case) are equally responsible and accountable for the harm that took place. Because they equally allowed the possibility of this harm to take place. Is it not problematic that during trial we become aware of all kinds of possibly harmful factors - yet, ignore them, just because there has been no consequence of them yet? Do we need to wait for harm to actually occur before the word 'justice' becomes an issue?

To be continued.

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