The need for a system of justice arose primarily to ensure that people live together in peace and harmony. In the absence of a system of justice, people will pursue self-interest without restraint, even at the expense of others. In such circumstance, oppression and anarchy shall be the order of the day. The strong will strive to oppress the weak and the weak will strive to protect himself/herself from the strong and wealthy. The final result will be a state of war where people will live in continual fear and agitation. One of the fundamental functions of any state therefore, is to ensure order by the administration of justice. The need for a rule of law is indispensable in any society. No matter the level of civilization of any community, if rule of law is absent. It will not take long time before the society reverts to primitive ways. Though public opinion in some instances serves as a means of law enforcement, it can never be a substitute as some law breakers are inclined not to respect public opinion.
In some civilised societies, people will obey law not because they fear sanction but simply because they do not wish to incur the displeasure of others e.g. a person will refrain from smoking in a non-smoking compartment of a railway not because of the token fine he may be liable to pay but because other passengers may object. The history of law enforcement has passed through different stages before attaining the present situation whereby the law enforcement agency is needed, for compliance is the general rule. The identifiable stages in the development include:
- Exertion of vengeance by victim of criminal acts and self-help by victim of civil wrongs.
- Controlled vengeance and self-help.
- The need to refer all disputes to the law enforcement agency.
In spite of the transition, it however has to be recognised that even tort in English law like other systems of laws, traces of vengeance and self-help still remain. For instance self defence and abatement are still recognised as valid defence in law.
In general terms, the purpose of civil justice is to ensure that the victim wronged is adequately compensated rather than a means of ensuring that the party in breach of civil duty is punished. A punishment is more proper in the province of criminal law. Care must however be taken to ensure that restitution is not confused with penal redress by this approach. Thus, while restitution serves to indemnity such loss suffered by the plaintiff, penal redress is concerned with compensation for the plaintiff even if the defendant has obtained no benefit from his unlawful acts.
It may be argued (more so in the light of penal redress mentioned above) that the purpose of court awards or other civil remedies serve the dual purposes of compensating the plaintiff and punishing the defendant. This is not the case for the following reasons.
- Damages are often awarded even where the defendant has not been at fault e.g. strict liability.
- Very often, there is no relationship between the degree of fault and amount of damages awarded.
- Where insurance cover is available the wrong doer may shift liability to other policy-holders, thus, somehow, escaping being punished.
Having therefore accepted that the purpose of civil proceedings is to compensate the plaintiff, it has to be recognised that this general rule is subject to some exceptions which include the following:
- Contemptuous damages: the smallest coin of the realm. This is usually awarded where the plaintiff has only succeeded on technical ground only e.g. where a person of low integrity succeeds in a suite for defamation of character. The award, which is really small, is not compensatory in any sense of it.
- Aggravated damages: these are fines with a view to compensating indignity rather than pituitary loss suffered by a person. It is normally much higher than normal awards, e.g. where the defendant has malicious motive.
- Exemplary damages: exemplary damages or punitive damage is rarely awarded. It represents the greatest departure from the general rule as in the following circumstances.
- Where there has been oppressive, arbitrary or unconstitutional action by any government functionaries.
- Where the defendant’s act has been calculated to make a profit by defamatory publication involving the plaintiff.
- Where a statute expressly authorises the award of exemplary damages.
The following points must also be noted in relation to the award of exemplary damages.
- The Plaintiff can only receive if he is the victim
- The court must take account of the fact that the award may be used to suppress liberty whereas it is in some circumstances a means of defending liberty.
- The means of defendant must be considered.
Other means of obtaining civil redress other than court
- Self-help – e.g. abatement in nuisance cases or ejection of trespasser on ones land; self defense.
- Distress damage peasant – seizure of animals which have been doing damages to ones land until compensation is paid by the owner.
It is necessary to recognise also the distinction between the primary rights and sanctioning rights. A sanctioning right is that which arises out of the violation of primary rights; example, all rights, which are capable of enforcement by retaining the status quo, are primary whereas sanctioning right will involve receiving mere compensation. It is the sanctioning right, which is mainly the subject of civil wrongs.
The purpose of criminal law/justice
Although the widely held belief is that the prime purpose of criminal justice is to punish or civil vengeance, this is not necessarily, so. Criminal justice is aimed at achieving more than enacting vengeance which on its own serves little (if any) useful purpose. The main purposes of criminal justice are the following:
- Vengeance, that is, to pay the wrong doer back in his own coins. This objective or purpose in English law is looked at with dis-favour although widely accepted in some other countries. Several attempts have been made to justify this objective. One such attempt is the theory, which has it that without a system of criminal justice people will seek vengeance by themselves. Some other people have also expressed it as a means of expiration – making amends.
- Deterrence: A more important aim is to deter people from committing crime. It is generally believed that a criminal who has received justice will deter from committing further crimes. Others would also learn from the experience of such criminal and hence deter from committing crimes.
- Protection of the community: this is the most achieved aim in practice. The community is protected from the criminal and his criminal tendencies for the duration of his imprisonment or incarceration. Another good example is where a driver is disqualified from driving consequent upon the commission of serious traffic offence. The community will at least be protected from him during the period of his disqualification.
- Reformation: this is considered the most useful purpose, as it is in the best interest of both the criminal himself and the society at large that he mends his ways. The extent to which this objective is achieved in practice is another question entirely. There is little evidence that any noticeable success has been recorded in this connection. One of the reasons for the failure is the fact that in spite of all researches it has not been possible to ascertain why people indulge in a life of crime. Also, not much reformatory programmes take place in the prison (which is, in most cases highly congested) because of cost constraint
Criminal versus Civil Justice
In conclusion, the purpose of criminal justice is not achieved, except possibly in that society which can be protected from the damages presented by criminals. Deterrence is not achieved; as experience has shown that people (even convicts) still commit crimes. Reformation has equally not been possible, mainly because of its high cost implication. Vengeance, as purpose of criminal justice, is a subject, which is very unlikely to reach a unanimous agreement.
