1- Law & Society Flashcards
What is society?
Group of people who share common territory, interaction and culture.
Members of society do not necessarily need to share every aspect of their culture, which may lead to separate societies within a country, such as large groups of people with the same ethnicity living close to each other.
What is pluralism?
Form of society in which the members of minority groups maintain their independent cultural traditions while being part of a society as a whole.
In theory, a pluralistic society does not consider one group more influential than another. However, prejudiced and discriminatory norms and behaviours remain widespread and continue to drive social exclusion.
Is pluralism the = as multiculturalism?
Not the same as multiculturalism lacks a dominant culture.
What is assimilation?
Groups seeking to become part of a pluralistic society often have to give up many of their original traditions in order to fit in. This is known as assimilation.
What is social control?
The ways in which our behaviour, thoughts and appearance are regulated by the norms, rules, laws and social structures of society.
What should social control do?
Protect those less able to protect themselves, such as children, disabled people, and those who are ill.
What are the 2 types of social control?
- Informal social control occurs through the family, peer group, the local community and the social group.
- Decline of the family’s and religious institutions’ control over
individual behaviour has led to a greater control over the
public and private lives of individuals by the law. - The growth of ethnic & religious pluralism in Britain has also led to a greater
control by the law.
- The law provides a standard for society.
- Decline of the family’s and religious institutions’ control over
- Formal social control occurs through social agencies which have the role of maintaining order in society. They include the criminal justice system, Parliament through Acts and delegated legislation, and the civil justice system.
What is the law surrounding suicide? How does this illustrate the roles of law in society?
Suicide is not a crime, but assisting suicide is, and those convicted could face up to 14 years in prison.
There is a no of public interest factors that influence whether or not someone should be prosecuted for assisting suicide. Prosecution is less likely if:
1. The person made a voluntary, informed decision to end their life.
2. The assister was wholly motivated by compassion
3. The assister tried to discourage the person
4. The assister’s actions could be seen as reluctant
encouragement/assistance.
ILLUSTRATION OF THE ROLES OF LAW IN SOCIETY
1. The law protects the vulnerable from being ‘assisted’ to die when they don’t
really want to.
2. It shows the law is more important now Church influence has declined as the
law now sets a standard for assisted suicide.
What idea is the jury system based on?
The idea that legal cases should be settled in a manner agreed by the whole community, or a representative of it.
It is assumed that jurors will come to an understanding that would be acceptable to a ‘reasonable person’.
What is meant by the balance of competing interests in human rights law?
Human rights law balances the individual and his freedoms under the ECHR with the law of the state.
How is the balance of competing interests in human rights law reflected?
It may be reflected in civil or criminal law (or both). It does this in three ways:
- All UK law must be interpreted, so far as it’s possible to do so, in a way that is compatible with the rights under the ECHR.
- If an Act of Parliament breaches these rights, it’s incompatible with Convention rights. The law remains valid but Parliament will decide whether it should be amended
- Parliament has the choice of doing nothing, changing the offending law or the practice, or making a remedial order, which can include amending an Act or a piece of DL, and under s 10 of the HRA 1998 a piece of legislation can be repealed by ministerial order (Henry VIII clause). Such a declaration would only be made as a last resort, the courts should do all they can to achieve compatibility.
- It is unlawful for any public authority to act incompatibly with HR, unless required by a statutory duty to do so. Where an individual’s rights have been violated, they can bring a case against the public authority.
What is meant by fault?
Fault, in a legal sense, is some form of wrongdoing.
It is used as a term to describe blameworthiness, and it then usually ensures the person at fault has legal responsibility.
How is fault reflected in criminal law?
In criminal law there is a general presumption that liability is based upon fault- a person shouldn’t be liable for a crim offence unless they’re to some extent blameworthy/at fault.
1) This underpins the concept of MENS REA in a crim offence, as it is what is in a person’s mind that distinguishes an accident from a criminal offence. (ex: kicking someone instead of a ball in a game of football will not normally be considered crim, it will only become crim when the kick is deliberately intended to cause an injury so that the necessary element of mens rea can be established)
2) CAUSATION in both crim and civil law also illustrates the way in which fault is seen as a basic constituent of the law- case of R v White (1910) illustrates this: the fact D wasn’t guilty of killing his mother would make many believe he should be guilty of something.
- this is rectified by the possibility of guilt for other offences such as attempted murder or administering of a noxious substance under s 23 OAPA 1861. Choice of offence means the law can ensure the best chance of conviction when a person is considered to be crim at fault.
3) Conviction results in a SENTENCE being imposed. The Criminal Justice Act 2003 states that: ‘In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence…’
- culpability can be equated to fault and so reflects the essential nature of fault in crim law.
- ex of fault in crim sentencing can be seen in R v Clarke (2017), where the court stated that whilst factors such as age and health should be taken into account when passing sentence, these have to be balance against the gravity of the offending- therefore taking culpability into account.
In criminal law, when will courts recognise a person is not entirely/partly at fault for their actions?
1) Some groups are exempt from crim prosecution, such as children under the age of crim responsibility, which is the age of 10.
2) The general rule is that the AR must be voluntary, which has been examined in HIll v Baxter (1958).
- A person may not be liable for an involuntary act, such as when a crime is committed when a person is pushed by another person, as seen in R v Mitchell (1983)
- However, fault can occur where D omits to do something when a duty has been imposed, as illustrated in R v Dytham (1979), R v Stone & Dobinson (1977), R v Miller (1983)
3) If a person lacks the necessary mens rea for the offence, they may not be to blame for their actions.
- The availability of a defence recognises that D may have committed the AR of an offence, even with the appropriate MR, but still not be at fault, for ex in the defences of self-defence and duress.
- A person may also be found not at fault if committing an offence in a state of automatism, or unable to form the required MR due to insanity or intoxication. For this situations, capacity defences are available, which deny MR entirely, essentially claiming that D was not morally in control of their actions.- R v Oye (2013), where medical evidence at the trial showed D had a psychotic episode and that he did not have the necessary mr when committing the offence, the CofA reached a verdict of not guilty by reason of insanity.
- Similarly, partial defences to a charge of murder show that the law recognises not all killings are equally blameworthy and the level of fault perceived may result in a conviction for a lesser offence. This can be seen in R v Ahluwalia (1992).
Is there an element of fault in criminal strict liability offences?
Although ENGLISH LAW generally recognises that people won’t be found liable for an offence when their conduct has been without fault, strict liability offences appear to clash with this principle.
The AR still has an element of fault, in the sense that someone has responsibility for the event that has occurred, whether it’s exceeding the speed limit or selling alcohol to a minor.
- In Harrow LBC v Shah and Shah (1999) it is shown how, although all reasonable steps were taken to prevent an offence, crim liability is still imposed.
Society views this as important for the safety of all people including the person responsible, and again demonstrates that fault is an essential part of crim law.
