Justice is the totality of conditions under which the will of an individual is conjoined with that of another based on a universal law.115 The challenge is the determination of these conditions. An unjust act is a violation of another’s rights. Therefore, my freedom, for instance, is restricted for the sake of yours and yours restricted for the sake of mine. However, Kant argued that it is only legally constituted authority which if operates in accordance with the law, can use coercion on others. He proceeded to say that a properly constituted court is the only institution that can justly
112 Fab O. Onah Human Resource Management (4th edn, John Jacob’s Classic Publisher Limited Enugu 2015) 13.
113 FO (n 81) 14.
114 Paul Rosenfeld, Amy L. Culbertson and Paul Magnusson, ‘Human Needs: A Literature Review and Cognitive Life Span Model’ (Defense Technical Information Centre, 1992)
<https://apps.dtic.mil/dtic/tr/fulltext/u2/a250073.pdf> accessed 20 April 2019.
115 Immanuel Kant, The Metaphysical Elements of justice (Bobbs-Merrill Indianapolis 1965) 34.
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punish after finding one guilty and culpable. The reason is that a crime goes beyond the accused’s freedom and that it infringes on others’ rights.116
Justice has two principles, which are that it demands equality in assigning rights and duties, and equality in social and economic affairs.117 Social and economic inequality is only justified if it leads to compensatory benefits to all especially the least advantaged in society.118 Five specific liberties of Rawl’s two principles are identifiable. Liberties under Rawl’s first principle are: (1) Political liberty, which is basically the right to vote and to be voted for; (2) Freedom of speech and assembly; (3) Liberty of conscience and freedom of thought; (4) Personal freedom and that to own property; (5) Freedom from arbitrary arrest and seizure in accordance with rule of law.
Justice requires all individuals to enjoy the same rights. On decision making in uncertain conditions, Rawls propounded what he called the maximin rule. By this rule, alternatives are to be ranked based on their unfavourable outcomes. The selection criterion is the alternative with the best worst outcome. Specific liberties under Rawl’s second principle are: (1) greatest advantage of the least advantaged; and (2) principle of fair equality of opportunity.
On the other hand, Aristotle’s theory of justice categorises justice into two that is, general justice and particular justice. General justice is where one’s act is completely virtuous in the eyes of all others while particular justice, on the other hand, is treating others in an equitable manner.
Justice demands use of an equalizing standard, which is seen as the only objective criteria.119 Justice is vindicated when punishment and offence are equal. Offei captured two positions on punishments.120 The first is that, the severity of punishment should be equal in degree to the gravity of the act, for instance, the loss imposed on the offender should be commensurate with the loss suffered by the victim. The second is that, the severity of the punishment should be fixed in relation to the comparative gravity of the act or harm done, but not necessarily in equal amount.
116 Stephen Offei Jurisprudence and Legal Philosophy (Ashmetro Prints Kumasi 2013) 243.
117 John Rawls A Theory of Justice (Harvard University Press Cambridge 1971) 23.
118 Rawl (n 97) 27.
119 Kant (n 99) 36.
120 Offei (n 85) 248.
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Retributivists make the point that punishments can be ranked in accordance with the severity of the acts committed.
In essence, to ensure justice, there ought to be opportunity to defend oneself in a legally recognised forum, appropriate policing, legal aid in cases of unaffordability of legal services, impartial and fair determination, and equality before the law, among others. Procedural justice and outcome justice are in tandem and must be viewed as such. Justice should not only be done but should be manifestly seen to be done.
While Barsky sees justice from the lenses of retribution and restoration, Gunning sees it as fairness. In this respect, speed in the dispute resolution process, settings of a dispute resolution process, process’ responsiveness to disputants needs, as well as accessibility to disputants are measures of justice.121 Justice is seen in the trial process (litigation) from two angles, that is, natural justice and procedural justice.122 Natural justice is concerned with the procedures in the trial process whilst procedural justice relates to substantive justice or what comes out of the trial process. Justice in the litigation process is a standard of rights and obligations of disputants.
However, this standard may not well fit mediation since disputants are at liberty to determine their settlement based on their circumstances and needs.123 The parties’ sense of justice is paramount.
In fact, justice may not be a factor at all. That is why some people argue that justice is sacrificed for compromise in mediation. It is concerned with using parties’ sense of justice that has been termed as ‘individualized justice’.124 This act blurs the lines between mediation settlement success and how parties perceive justice.125 Therefore, justice based on disputants’ agreement can be nothing but elusive and at best subjective.126 This is because notions of justice differ from
121 Laurence J. Boulle and JV Goldblatt, Alternative dispute resolution: Principles, Process, Practice (Butterworths Wellington New Zealand 1998) 23.
122 D Tumushabe, ‘Role of alternative dispute resolution in reducing case backlog’
<https://www.academia.edu/23131485/role_of_alternative_dispute_resolution_in_reducing_case_backlog _chapter_one> accessed 3 February 2020, 19.
123 National Alternative Dispute Resolution Advisory Council ‘A Framework for ADR Standards, Report to the Commonwealth Attorney-General’ (National ADR Council, 2015)
<https://www.nationalsecurity.ag.gov.au introduction.html> accessed 3 February 2020.
124 JM Nolan-Haley, ‘Court Mediation and the search for justice through Law’ [1996] Washington University Law Quarterly 57.
125 VB Gramberg, ‘The Rhetoric and Reality of workplace Alternative Dispute Resolution’ [2006] Journal of Industrial Relations 189.
126 Tumushabe (n 106) 20.
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individual to individual and is dependent on factors such as values and beliefs, which are shared by the disputants. Nevertheless, the consensual agreements (settlements) arrived at by disputants cannot be said to be unjust.127
Four factors have been identified as influencing disputants’ assessment of the fairness of a dispute resolution process.128 These are: (1) being able to participate in the process, (2) third party neutrality, (3) level of third-party respect for disputants, and (4) outcome quality (ought to be fair). This is important because unfair processes lower disputants’ trust as well as their compliance with the final decisions or outcomes of the dispute resolution process.129Three aspects of justice, which is procedural, distributive as well as interactional justice together, constitute the components of a just decision.130 These three components provide a sense of satisfaction to disputants.131