Chapter 3 Context

Justice can only be dispensed when you have all the facts in front of you.

——Julian Baggini

In any situation，before a lawmaker can decide what justice requires and what the law should be，the starting point must be to understand the underlying context.This enquiry into the context includes the following：

● Who are the parties involved？

● What is the dispute or matter about？

● Are there other stakeholders，such as the industry/profession and society at large？

● What are the problems，the challenges and the constraints？

With a good appreciation of the context，the lawmaker can proceed to the next step of deciding the overarching principles.Many different terms are used to describe these highest-level guides — cardinal principles，philosophies，key objectives，aims，goals，policies，pillars，tenets，approaches，desired outcomes and so on.Unfortunately，there is no uniform usage of terminology.Let us look at these overarching principles in a few areas of law.

In criminal law，a few overarching principles stand out.First，there is the presumption of innocence.Article 11 of the Universal Declaration of Human Rights （a document adopted by the United Nations General Assembly and subscribed to by most countries） states that everyone charged with a penal offence has the right to be presumed innocent.

Related to this，there must be “due process”；the accused is entitled to a fair hearing.Also，the general attitude is that a person should not be convicted unless he had a guilty mind （mens rea）.Further，the prosecution has the weighty burden of proving its case beyond reasonable doubt.

If the court concludes that the accused is guilty，there is the issue of sentencing.In meting out the consequences of committing a crime，the judge has to consider the applicable theories of punishment and arrive at the suitable form and extent of punishment for the wrongdoer.The reader is probably aware of some of the five key theories or objectives of punishment — retribution，deterrence，incapacitation，rehabilitation and restoration.Of course，one objective may clash with another and there is much controversy on this subject，both in theory and in its actual application.

Tort law，which seeks to allocate rights and liabilities in the civil （as opposed to criminal） realm and to compensate for harm suffered，subscribes primarily to the idea of corrective justice.This means simply that it is the wrongdoer （the“tortfeasor”） who should be made to compensate the innocent victim.

The problem is that corrective justice is not the only basis.Tort law，at times，resorts to distributive justice.Essentially，the focus is on compensating the victim and，with that in mind，it may not matter if the burden falls wholly or partly on someone other than the party at fault.This may result in perceived injustice，as we shall see in later chapters.

And there is yet another subsidiary objective in tort law — deterrence.On rare occasions，a court may impose tortious liability on the defendant because it wishes to deter certain tortious conduct.For example，a court may hold a company liable for its employee’s financial fraud so that in future，companies will exercise greater financial oversight.

So，in dealing with a problem at hand，including a new problem，tort law looks primarily to corrective justice.But，sometimes，it applies distributive justice or，even，deterrence.

In contract law，it is a continual refrain that freedom of contract is the cornerstone of a free market economy.Some even refer to the “sanctity” of the freedom of contract.There is a predisposition to uphold what the parties had agreed.

However，freedom of contract does not have unrestrained application.Courts do intervene when the conduct of a contracting party or the substance of a contractual clause is thought to be unfair，for instance，because of grossly unequal bargaining power.The big picture is that contract law balances freedom of contract with the need to intervene for good reason.The dividing line is unsteadily drawn and a Jekyll-and-Hyde attitude is periodically observed.

As a final illustration of objectives，let us look at the financial advisers law.In response to the 2009 Global Financial Crisis，regulators in many countries made changes to their legal and regulatory landscape and emphasised the importance of fair dealing.To this end，they declared what they perceived as the desired outcomes of fair dealing.Two of the more prominent desired outcomes are informed decision and product suitability.

To achieve these outcomes，the lawmakers and regulators introduced laws or enhanced existing ones，such as that the senior management of a bank must deliberate upon and approve every new financial product.

In summary，in crafting law，understanding the context is critical.The examination of the context enables the lawmaker to lay down the fundamental aims or objectives.From these flow the detailed principles and rules and the ability to calibrate the law to the context at hand.Context is certainly the starting point.