Concept Essays

Question 1

What are the three concept essays?

Answer 1

Law & Justice
Law & Fault
Principles of criminal law

Question 2

What is justice defined as?

Answer 2

‘just conduct/fairness’ - Oxford English Dictionary

Question 3

What are the two types of justice in Law & Justice?

Answer 3

Prodedural Justice - how fair procedures in the system are

Substantive Justice - how just the laws themselves are

Question 4

What are the four theories of justice?

Answer 4

-Aristotle - Corrective justice
-Aquinas - Natural Law Theory
-Bentham - Utilitarianism
-Nozick - Minimal State Theory

Question 5

What is the theory of corrective justice?

Answer 5

Proposed by Aristotle - a just law which aims to restore the victim to their original position

Question 6

What is the natural law theory?

Answer 6

Developed by St Thomas Aquinas - there is a higher natural law by God which brings justice, other laws by Parliament should only be followed to avoid social disorder

Question 7

What is the theory of Utilitarianism?

Answer 7

Proposed by Bentham - a law is just if it benefits the majority of people, even if this results in injustice for the minority (Used in Law&Justice)

Question 8

What is the minimal state theory?

Answer 8

Proposed by Nozick - state interference should be kept to a minimum to achieve a just society, unless human rights are threatened

Question 9

What is the definition of fault in Law&Fault?

Answer 9

OED defined as ‘something wrongly done, mistake, culpability’ - a legal and moral term to describe a persons blameworthiness.

Question 10

How does the legal system use fault?

Answer 10

Fault-based legal system - used as a marker of blame that imposes responsibility and therefore justifies imposition of penalties - D’s liability is based on their degree of fault

Question 11

How is fault linked to criminal law specifically?

Answer 11

The D will only be punished if they can be shown to be the blame ‘beyond reasonable doubt.’ The more fault, the higher the sentence

Question 12

What are the two types of principles of criminal law?

Answer 12

harm and autonomy of individual responsibility

Question 13

What are the four principles used to formulate criminal law?

Answer 13

Fair labelling, correspondence, maximum certainty, no retrospective liability

Question 14

What is harm? (principles of criminal law)

Answer 14

Should harm be the basis for criminalisation? - v important in creation of criminal offence and justifies imposing sanctions on those guilty, most serious offences are ones that involve harm

Question 15

What is the meaning of harm? (crim principles) name key thinker

Answer 15

John S Mill - Harm principle, harm is to cause physical injury or damage to property, but can be causing fear or hate crimes. Not able to consent to injury as not in public interest (R v Brown)

Question 16

What is fair labelling? (principles of criminal law)

Answer 16

The law should be made so elements of the offence are clear, level is in proportion to the type (summary, triable either way or indictable)

Question 17

What is correspondence (principles of criminal law)

Answer 17

For liability, there needs to be an appropriate match between the D’s conduct, the consequences (actus reus) and mens rea

Question 18

What is maximum certainty? (principles of criminal law)

Answer 18

The law must be clear so that a person knows what conduct is criminal. Crimes which are not clear breach this principle

Question 19

What is meant by ‘no retrospective liability?’ (principles of criminal law)

Answer 19

The law should only apply when it is made an offence, so it should not be applied retrospectively.

Question 20

What are the three theorists of fault?

Answer 20

Vera Bergelson - victim fault
KJM Smith - subjective and objective fault
Andrew Vin Hirsch - retributive theory

Question 21

What is Vera Bergelsons concept of victim fault?

Answer 21

Victims should be considered when assessing criminal liability, should compare V’s actions against D - especially in self-defence and loss of control due to the influence of legal outcomes

Question 22

What is KJM Smiths theory of subjective and objective fault?

Answer 22

Mens Rea for murder originally an objective test from DPP v Smith, but developed into subjective in s.8 CJA1967 to a subjective test

Question 23

What is Andrew Von Hirsch’s contribution to retributive theory? (fault)

Answer 23

Severity of punishment should correspond to moral blameworthiness of D’d conduct and must fit the crime to achieve fair and just treatment

Question 24

What does Joel Fienberg add to harm?

Answer 24

We should only punish actions that cause harm directly to others, not merely those that offence societal sensibilities

Question 25

How does the law consider harm to yourself or society?

Answer 25

Able to cause harm to yourself but not all acts are criminal (suicide) , can harm society through hate speech or moral principles (R v Gibson)

Question 26

What do the thoerists add to fair labelling?

Answer 26

Douglas Husak - distinctions amongst offence should reflect the nature and seriousness of the offence as mislabelling is injust Andrew Ashworth - FL essential for justice, criminal law avoid excessive labels that create stigma

Question 27

Who are the theorists for correspondence?

Answer 27

Paul Robinson - criminal liability emphasises importance of correspondence and D should only be liable is both are present Michael Moore - link to establish blameworthiness

Question 28

What are the two theorists for maximum certainty?

Answer 28

Hart - essential for making law accessible and understandable Raz - supports as laws should be clear to allow predictable outcomes and reduce arbitrary decisions

Question 29

What are the theorists for retrospective liability?

Answer 29

Kant - asserted that it would violate the principle of justice with retrospect Bentham - if liable retrospectively, then would undermine legal certainty and would be unfair