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Introduction
For centuries, humans have been creating laws and justice systems in order to improve the function of society. From ancient Greek philosophers such as Plato proposing “the ideal state” to categorize citizens into classes, to our modern-day society in which we have different branches of government to ensure none gets too much power, we have come a long way. It seems like our rights are well protected within the multiple layers of government, but is it actually working? Who decides what is a “good” or “bad” law and, most importantly, is our current justice system effective? We are fortunate that we live in the 21st century, where our laws are designed in a way that relatively protects us, but what about our ancestors? Do they understand justice and government the same way we do? In this paper, I will address the fundamentals of justice, our current Canadian justice system, and if it is an effective method to solve our problems through the lenses of Criminal, Constitutional, and Civil law.
The Fundamentals of Government: Justice
Government and justice can mean many different things to different individuals. In a way, modern-day individuals most commonly refer to justice as either promoting justice or hindering justice and government as the enforcer of justice, but that does not answer the question of what exactly is justice and the purpose of government. In this section, I will explore the origins of justice, theories of justice, how it influences the government, and the purpose of government.
Foundations of Justice
First, the most basic interpretation of justice is the principle that people receive what they deserve. In fact, the theories of justice originated from ancient Greek philosophers such as Plato with his theory of separating the citizens in different classes and Aristotle with his work Nicomachean Ethics.
With that said, these early versions of justice were not the best since they focused primarily on separating people physically rather than the mental and intangible aspect of what justice is. For instance, as we move on to the enlightenment era, we began to see more sophisticated theories of Justice of which our modern system is built on. John Locke, an English philosopher, in the 1600s founded the idea of natural rights. He wrote Two Treatises of Government in 1690, which rejected the theory that monarchs had a divine right to rule. In addition, he wrote that rulers gained their authority through the consent of the people and would face rebellion if they failed to act for the good of the people. He also believed that everyone had the self-evident or natural rights to life, liberty, and property, and these natural rights must be respected by the government. In other words, according to Locke, it is the citizen’s duty to overthrow the government if it becomes dictatorial. Locke also pointed out that powerful governments will be tempted to abuse their powers. To prevent these abuses, governments should be divided into separate branches, limiting the power of each branch (note: this concept of separate branches of government can be directly seen in our current governing system with the separation of the judicial branch). Another prominent enlightenment thinker in this era is Thomas Hobbes. He authored Leviathan in 1651, and in it suggested that people need government because it provides them with both peace and security (justice). Due to this, people should be willing to trade some of their natural rights for this protection. This exchange of rights for protection is called the social contract. Hobbes said that without the government, people would be in a constant state of conflict with each other because everyone is primarily self-interested. Lastly, Rousseau expanded on Hobbes' social contract by adding that the social contract relies on popular sovereignty. This means that the people create and authorize government and that government can’t exist without the people’s consent. He argued in his essay, Social Contract, that people need not only the security the government provides, but they also need the freedom to develop new skills.
Our government and justice system is built on these founding principles described above. For instance, Locke's natural rights are implemented in our Charter of Rights and Freedoms as well as the Universal Declaration of Human Rights since everyone has the right to life, liberty, and property. In addition, his theory of separation of government was used in our government to devise the judicial branch away from the rest of the governing body. This way, the courts are completely independent from the government and any influences it might get. Furthermore, our modern-day elections are a way to basically give consent to the government to be governed. Citizens, through a democratic process, choose the governing body through elections, which represents the people. Hobbes suggests that individuals need to give certain rights to the government in order to be protected (Social Contract). This can be seen in our modern society as laws or legislation. We are restricted to certain rights by the government in order to protect the whole and promote peace. For instance, inciting violence, in theory, is our natural right to express ourselves, but since it could infringe others’ natural rights, it is restricted by the government.
Purpose of Government
In order to protect the rights of the individual and serve justice to the community, there are five purposes of government as listed below:
Purpose 1: Protecting citizens – Provides a national military and local police forces to protect its citizens from enemies, both foreign and domestic.
Purpose 2: Maintaining order – Maintains order by providing a judicial system and other resources to resolve disputes.
Purpose 3: Regulating the economy – Responsible for regulating the economy to ensure economic stability and prosperity for citizens. Creates both monetary and fiscal policies to help achieve price stability in the markets and to promote economic growth.
Purpose 4: Providing public goods and services – Charged with providing public goods and services. Public goods include schools and highways. Public services include Medicare and welfare.
Purpose 5: Ensuring successful political socialization – Encourage young people to accept, understand and perpetuate the government.
Founding Documents of Canada
Apart from these modern philosophers who created the general outline of our justice and governing system, our justice system also relies on historical tablets such as the Code of Hammurabi and the Magna Carta.
First, the Code of Hammurabi is one of the earliest known sets of recorded laws. This code dated all the way back to 1792 BCE and it included punishments and rules that governed the Babylonian society. From the code itself, we know that this piece of legislation is not modern since it has a very simple logic in which there are many death punishments for, what we call today, summary convictions. For example, number 7 of the code states: “If any one buy from the son or the slave of another man, without witnesses or a contract, silver or gold, a male or female slave, an ox or a sheep, an ass or anything, or if he take it in charge, he is considered a thief and shall be put to death.” In simple words, it says that if anyone buy from the son or slave of another person without money or currency, they shall be put to death since it is considered stealing. This is in stark contrast with what we have today since in our current world, if we steal something, it would generally be considered a summary offense, and you will only need to pay a fine rather than your life. Regardless, the Code of Hammurabi is still a large advance of human society since this way, we can hold people accountable to their actions and it is the first step in making our current constitution today.
The Magna Carta is another example of an early codified constitution. This constitution became the basis for freedom, democracy, and the rule of law in Canada and the United Kingdom. Essentially, the Magna Carta was written by a group of 13th century barons to protect their rights against a tyrannical king. Specifically, this document was created in the hope of making the king realize that nobody was above the law (the Rule of Law). Moreover, this document established that law is necessary to have an ordered society, no one is above or below the law, the law must be public and accessible to all, and a person’s legal rights could not be taken away unless it is due to the law. In addition, all are entitled to freedom from unlawful detention (habeas corpus), all have the right to a trial by jury, and widows could not be forced into marriage and give up their property, an early first step in women’s rights. As we can see, even though the Magna Carta is not directly in our Canadian constitution, it served as the very foundation of how our Charter of Rights and Freedoms was formed.
Now, the question is do these early laws, the Code of Hammurabi and the Magna Carta, promote justice? In a way, the answer is yes since essentially, the governing body is protecting the citizen’s rights through a series of actions, but as we look at the Code of Hammurabi, are the punishments proportionate to the crimes? That is hard to tell since we don’t live in that time period and do not know the cultures and traditions of their world. We don’t know the exact number of crimes that have happened or the mindset of the people; we can only rely on historical data to assume facts about these empires. Our understanding of justice is probably different from what they had in mind. Therefore, asking if those early codes promote justice is the wrong question. Instead, the right question is: did the early codes such as the Code of Hammurabi and the Magna Carta promote justice in their time period? The answer to that is yes.