Are law and justice both separate?
Write 300 words on the following topic arguing both sides:”Are law and justice both separate?”
Use the information listed below to develop an answer and use the number of the submission chosen in text to develop your paragraph e.g. ”This is because post colonisation in Australia, the aboriginal people were denied their rights to self-determination as written in submission 7.”
Also only write in relevance to the Australian legal system.
Also use this template for the paragraph:
This essay argues that _____. By way of background, _____. The reasons supporting the conclusion are as follows. First, _____. _____. _____. _____. Additionally, _____. _____. _____. _____. The following objections may be raised. First, _____. Furthermore, _____. However, the following rebuttals may be made. ___. ___.
These are the informational submissions you will use to answer the question:
Submission 2:
This essay argues that force used by police to preserve law and order is in itself separate from the violence inherent in the legal system.
By way of background: Deconstructionism is the brain child of the French philosopher Jacques Derrida (Derrida) Derrida argues in The force of law, that due to their very nature, law and justice are both entirely separate concepts and cannot exist without each other . This notion, Derrida calls ‘the other’ The other exists in every aspect of the law Historically a decision was made to prioritise a legal right over something ‘other’. However, the legal right cannot exist without ‘the other’ and thus the two remain intrinsically linked Derrida further identifies that law is law only because it is law The state seeks to monopolise violence through law to assert its own legitimacy . The deconstructionist theory seeks to dismantle laws and inspect their ‘other’ to fully understand, and ultimately legitimize the law Further, Derrida argues that deconstructionism is a legitimate method to ensure that justice and law remain consistent and linked.
The reasons supporting the conclusion are as follows.
First, Derrida identifies justice and law as two distinct yet entirely co-Dependant concepts In fact, Derrida states ‘the justice of law as law is not justice Laws are not just as laws One obeys them not because they are just but because they have authority’ Here, Derrida can be seen to draw a line between the violence used to achieve justice and the law Derrida argues that justice cannot exist without violence, yet justice remains distinctly separate from the law . From this we can surmise that the violence of the police to enforce the law is not violence in the legal system but violence of justice as a separate concept.
What is more, the model of modern policing is universally attributed to the principles of policing advanced by Sir Robert Peel Peel proposed that modern policing should be founded on consent and respect The consent of the community to be policed and the respect earned from the community by the police through fair and impartial policing It is this foundational model that raises an objection to the assertion that the violence of the police is an extension of the legal system Modern policing occurs by consent, the consent of the public to be policed, to adhere to a set of agreed laws and to be subject to the use of force to keep those laws The violence inherent in the justice system to enhance its own legitimacy is separate from the violence exercised by police through the consent of the people .
The following objections may be raised.
First, Derrida argues that law and justice are both separate and singular, thus any application of force in the name of justice is also an application of force in the law Ergo police are the finite end of violence inherent in the legal system .
Moreover, Derrida consistently maintains the relationship between law and justice is intrinsically linked but entirely separate.
However, the following rebuttal may be made. Derrida consistently maintains the relationship between law and justice is intrinsically linked but entirely separate.
Submission 4:
This essay argues that the force used by police to preserve ‘law and order’ is not merely one end of a spectrum of violence inherent in the legal system. By way of background: As stated by Jaques Derrida, "there is no law without enforceability, and no enforceability without force" . Use of force has been assessed very closely since the beginning of policing, starting with english barons in 1215, who mandated the restriction of policing power to prevent corruption . The reasons supporting the conclusion are as follows. First, without the use of mandated force, everything would be solved by violence . As was seen in the article regarding the Anti-vax protests, violence is always used to argue when not prevented by police The protesters were said to have thrown rocks, bottles, and urine, and only ceased to do so when faced with the force of the police . Extremeist groups were said to have infiltrated the protests, using their apparent right to protest as an opportunity to insigate violence and promote their private agendas . Moreover, the Harm principle is the basis of Liberalism, and thereby, the Australian Legal system . The Harm Principle protects the majority, whilst only limiting individual freedom when necessary One can not, therfore, state that police use force to harm the majority Only when the Anti-vax protest became violent did the police respond with violence Therefore, use of force by police is a protective measure, not part of the 'spectrum of violence' . What is more, violence is not inherent in the legal system. Australia implements strict police regulation procedures, allowing for constant assessment of of force . As can be seen in the Anti-Vax article, the police use minimal force to prevent further violence, this includes less-lethal ammunition, pepper spray, and tear gas These less violent measures conveys the police's intent to limit the use of violence in the legal system. The following objections may be raised. First, humanity would grow and evolve without the use of violence Violence promotes violence. Also, liberalism is outdeted and creates a selfish society. In addition, police brutality is a large issue, now as much as ever. However, the following rebuttals may be made. First, humans are a naturally violence species Without order, the bad would rule society This is reflected in gang areas, in which when the police move out, alkternative authority moves in, and such authority is often far more violent . What is more, police brutality, although still a strong issue in Australia, is at the forefront of the reform agenda, increasing accountability and reducing cases of excessive use of force .
Submission 7:
This essay argues that force used by police is a consequence rather than a result of inherent violence within the legal system. By way of background: Consequence to the actions of the those breaking the law. The reasons supporting the conclusion are as follows. First, the police exist solely to enforce the law and to ensure that individuals conduct themselves in a lawful manner, as Derrida explains, without enforceability, there is no law. In the case of the antivax protests, police intervention would not have been required if the public conducted themselves lawfully. Derrida explains that enforcing law does not naturally mean physical violence, law can be enforced passively and indirectly. In addition, violence is not inherent within the legal system. The Australian legal system is a complex amalgamation of many things, most prominently, statute and common law Our legal system does not promote or condone violence To say that there is inherent violence within the legal system would be a gross oversight of how the legal system operates in Australia . Human interpretation of the legal system, and society's need for justice is what creates violence, however, it would be wrong to say that this violence is 'within the legal system'. The following objections may be raised. First, the legal system cannot stand without some form of enforcement, enforcing anything on an individual can be taken as a violent act. Furthermore, force used by police may exceed the necessary amount and therefore creates more violence and antagonises a situation. However, the following rebuttal may be made. Police may use excessive force in some situations, however, this does not justify deeming the entire legal system as inherently violent Law cannot function without enforcement, as Derrida explains, the enforcement of law does not correspond to justice.
Submission 11:
This essay argues that force and violence is a necessary part of the justice system and is applied through all stages of the justice system, from law enforcement to the courts to the corrections system. By way of background, force has been used throughout history in the application of law, from public executions for deterrence and punishment to imprisonment. While our justice system is no longer as brutal as it once was, many elements of force inherent in the system are still present. The reasons supporting the conclusion are as follows. First, without any application of force, enforcement would be impossible. For uncompliant offenders, there would be no way to arrest them against their will without any force, allowing them to run from any legal consequences. The lack of force will give power to the offenders, allowing them to apply their force on other people as their power is unchallenged by the enforcement of law. Implied force is enough in most cases for the law to be properly enforced, as few people wish to escalate the force from implied to physical, thus having it act proactively as a deterrent. Additionally, the force is used in the courts is of a similar nature. Many of the sentences act first as a deterrence, hoping to use its power both directly and indirectly to avert crime. When compliance with the system is not achieved, the courts will use more direct and sometimes physical force to compel behaviour or sentences, sometimes requiring the use of violence to ensure this. This is inherent in the system as although laws are generally designed with the purpose of everyone agreeing they are morally correct, deviations from this need to be stopped, and the only way to stop this may need to be force or violence. The following objections may be raised. First, the system is designed around generally agreement to comply with the laws, and it is not the force inherent in the system which compels enforcement, rather our wanting to be a part of a moral system. Furthermore, the application and threat of force causes more problems than it solves, with misuses of force being exploitable by specific members involved with the justice system. However, the following rebuttals may be made. Although most people willingly comply with the law for moral reasons, force is required when people act in opposition to the law and do not comply with everyone else. In addition, abusing the force within the justice system is extremely rare, and misuse of the force can have the power revoked and even used against the abuser. As it is so rare, it stands the use of force throughout the system has done much more good than harm for the Australian people.
