Balancing Interests

Question 1

define interest

Answer 1

a right or stake that the law acknowledges and aims to protect

Question 2

define balancing

Answer 2

can include a compromise between interests or allowing one interest to override another

Question 3

Marx

Answer 3

law; part of repressive state apparatus used to ensure exploitation of proletariat by bourgeoisie; doesn’t fairly balance (Hunter v Canary Wharf)

Question 4

rudolf von Jhering (3)

Answer 4

1. law; means of ordering society in which there are many competing interests
2. law; mediator by assessing value of each interest and determine balance (Richardson)
3. utilitarian; concerned with social over sole aims

Question 5

Jeremy Bentham (3)

Answer 5

1. principle of “greatest happiness of greatest number”
2. law should reflect dominant group
3. dangerous dogs act 1991 bought about by pressure groups

Question 6

roscoe pound (4)

Answer 6

1. interest can be individual or social
2. can only be balance on same level
3. failure to do so results in in-built bias in favour of social interest
4. private nuisance; courts consider several factors to achieve fair balance

Question 7

define procedural law 1

Answer 7

body of legal rules that govern the process for determining the rights of parties

Question 8

legislative process (3) 1

Answer 8

1. green papers; invite consultation from interest
2. passing of a bill requires debates and votes
3. HOWEVER; limited as people lack knowledge eg Assisted Dying Bill 2015

Question 9

protective legislation (3) 1

Answer 9

1. helps weaker interest groups
2. CPA 1987; imposes SL on producers
3. HOWEVER; Marx says this should happen but doesn’t

Question 10

bail (2) 1

Answer 10

1. balances interests of D and V (innocent until proven guilty)
2. HOWEVER; can favour social interest eg no bail if “flight risk”

Question 11

sentencing (2) 1

Answer 11

1. considers aggravating and mitigating factors

2. both D and V can appeal if unhappy

Question 12

contributory negligence 1

Answer 12

succeed in claim but reduce damages (Sayers v Harlow)

Question 13

LASPO 2012 1

Answer 13

reduced legal aid funding which prevents access to justice for w/c

Question 14

define substantive law

Answer 14

body of legal rules that determine rights of individuals and collective bodies

Question 15

L’Estrange v Graucob 2

Answer 15

supports Marx’ theory that law favours bourgeoisie

Question 16

following L’Estrange 2

Answer 16

protective legislation eg Sale of Goods Act 1979

Question 17

postal rule 2

Answer 17

gives power to buyer (Adams v Lindsell)

Question 18

vicarious liability (2) 2

Answer 18

1. protects employees

2. doesn’t protect employees on a frolic of their own (Limpus)

Question 19

defences (2) 2

Answer 19

1. do balance

2. consent can’t always be used (Brown)

Question 20

does law always achieve a fair balance? C

Answer 20

no, but it’s important they strive to achieve this as law is to protect interests of ALL not just rich (Marx thinks it does)

Question 21

have the government and courts shown they want fair balance? C

Answer 21

they are continuously striving to achieve a fair balance as can be seen through protective legislation that has been developed eg CPA 1987

Question 22

procedural law does/ doesn’t balance interests (2) 1

Answer 22

1. legislative process

2. protective legislation

Question 23

criminal law does / doesn’t balance (2) 1

Answer 23

1. bail

2. sentencing

Question 24

civil does / doesn’t balance (2) 1

Answer 24

1. contributory negligence

2. LASPO 2012

Question 25

contract does / doesn't (3) 2

Answer 25

1. L'Estrange v Graucob 2. Protective legislation 3. Postal Rule

Question 26

civil law does / doesn't 2

Answer 26

vicarious liability

Question 27

criminal law does / doesn't

Answer 27

defence