CONCEPT ESSAYS Flashcards
what are the three essay topics?
•Law and Justice
•Law and Fault
•Principles of a Crime
how many marks is it?
15 marks
what are the 10 marks?
Defining a concept( one of the topics).
what are the remaining 5 marks?
Linking the concept to an area chosen by the examiner( e.g. murder, theft ,etc.).
what is the definition of justice?
Oxford English Dictionary defines justice as “just conduct; fairness”.
what are the 2 types of justice?
• Procedural Justice - How laws are made/how the legal system operates must be fair, e.g. jury selection, sentencing.
• Substantive Justice - Whether the rules are just, the rules themselves , e.g. loss of control, murder.
name the 1st theory of justice:
ARISTOTLE - Corrective Justice
• Where justice is disturbed by wrongdoing, there should be a means of restoring the original position. e.g. compensatory damages.
name the 2nd theory of justice:
ST THOMAS AQUINAS - Natural Law Theory
• Assumes there’s a higher natural law derived from God. If this higher law is followed, there will be justice. You should only follow government law to avoid social disorder. e.g. Human rights.
name the 3rd theory of justice:
JEREMY BENTHAM / J.S MILL - Utilitarianism
• A law is a just law if it benefits the majority of people, even if this results in injustice for the minority. Concerned with promoting the greatest happiness to the greatest number of people. e.g. Closing legal tax loopholes.
name the 4th theory of justice:
NOZICK - Minimal State/Entitlement Theory
• State interference should be kept to a minimum to achieve a just society. Individuals have natural rights to the enjoyment of life, health and liberty, free from interference from others. e.g. Lowering taxes for the rich.
what is the definition of fault?
The Oxford English Dictionary defines fault as ‘something wrongly done’, ‘mistake’, and ‘culpability’. Used to describe the idea of culpability or blameworthiness (responsibility of the person committing the offence).
what is the first point you have to make for fault?
The UK has a fault based legal system - a persons liability is generally dependent upon their degree of fault. In criminal law, people are guilty beyond reasonable doubt.
what is the second point you have to make for fault?
Fault is a marker of blame which imposes responsibility and therefore justifies the imposition of penalties or sanctions and identifies the person who should be punished.
what is the third point you need to make for fault?
Criminal law is mainly based on the principle of fault so a defendant will only be punished if it is proved beyond reasonable doubt that they are to blame. This is based on the notion of individual responsibility - those who choose to behave in the way they do are responsible for the consequences.
what is the first point you need for principles of a crime?
‘Harm’ = Causing harm to others, as in physical injury or damage to property.
- Can be extended to harm not just caused immediately but also to causing fear of future injury and can include hate crimes.
- You can also cause harm to yourself and well as others. The law won’t allow you to consent to serious injury as this is not in the public interest.
what are the 4 principles in formulating rules of criminal law?
1) Fair labelling
2) Correspondence
3) Maximum certainty
4) No retrospective liability
what is fair labelling?
FAIR LABELLING
• Each crime must be given a fair label, meaning that it must accurately describe the type of crime committed.
• Three categories of offences:
- Summary
- Triable either way
- Indictable
• e.g. Murder = Unlawful killing of a human being with intention to kill or cause GBH.
what is correspondence?
CORRESPONDENCE
• Refers to the relationship between the actus reus and mens rea.
• An appropriate match should be required between D’s conduct and its consequences (AR) and D’s state of mind (MR).
• e.g. Theft = The appropriation (AR) must be dishonest (MR).
what is maximum certainty?
MAXIMUM CERTAINTY
• The law has to be clear.
• Any person should be able to determine in advance what conduct is or is not criminal.
• e.g. GBH (grievous bodily harm) - the word grievous is not commonly used, so why not use the word serious instead.
what is no retrospective liability?
NO RETROSPECTIVE LIABILITY
• The law should only apply to future conduct.
• Where the unlawful conduct is not an offence at the time, it is clearly unfair to convict the D of the offence.
• e.g. RvR - technical miscarriage of justice - When the husband raped his wife marital rape was not illegal, the case changed the law and the judges went back and found him guilty. Therefore, they applied retrospective liability.
