The concept of justice has three facets; interpersonal adjudication, law based on fault, and an emphasis on procedures.
Common law justice influenced by the Bible and classical liberalism is based on the rights and duties of the individual. The liberal concept of justice is an interpersonal one; resolution of conflicts between individuals. Social justice, involving society and social groups, offends the common law idea of justice. It is nebulous as a concept and unachievable in practice. Its proponents increase state power in the attempt to realise it, with counterproductive results.
The second facet of common law justice is that no one should be punished or disadvantaged except for fault (intentional, reckless, or negligent wrong-doing, strict liability applying in exceptional circumstances).Strict liability, within the common law philosophy, extends responsibility or liability, in absence of intention, recklessness or negligence, for reasonably foreseeable consequences of actions. The idea of fault including strict liability as defined is a golden thread running through the fabric of the legal order.
A system of sanctions based on fault presupposes known and pre-existing standards of conduct that bind the community. The abdication of fault (including strict liability) basis of liability leads to ever-expanding law and government, as in the case of, for example, the Australian industrial relations system and consumer protection laws. In the field of family law, fault has been rendered all but irrelevant in the annulment of marriages, grant of custody, award of maintenance and the settlement of property. The examples can be multiplied.
The third feature of common law justice is the emphasis on procedures. This reflects the classical liberal influence which doubts the possibility of achieving equality, participatory democracy, justice, the public good and other ideals through legislative and prescriptive action. Such a task is too complex for human imagination, conception and execution. Procedures provide for limitations on power. Procedures provide that, before judicial, legislative or executive decisions are taken, a series of checks and balances is in place to ensure that the decisions will not be hasty, ill-conceived or based on corruption, passion, ideology or eccentricity.
The key institutional and procedural characteristics of the legal order ensure that a person is not disadvantaged except according to procedures established by law. They include the rules of evidence and procedure and the rules of natural justice. These institutional safeguards give protection to the cluster of personal liberties associated with the criminal process, such as the right not be imprisoned or held without trial, the right to be informed of charges and the right to be presumed innocent until proven guilty. The rules of procedure, evidence, and natural justice also protect individuals from arbitrary governmental action and illegal deprivation of private rights.
The principles of due process arise by construction out of two fundamental principles of natural justice: (i) that there should be no punishment without guilt and no liability without responsibility and (ii) freedom from arbitrary state action.
The second principle guards against circumvention of the first by the administrative coercion of particular individuals without reference to a rule of general application.