Essay Plans Flashcards
Fault =
Criminal Law =
- There is a general presumption of liability based on fault which is the allocation of blameworthiness.
- A person cannot be criminally liable if they are not blameworthy which underpins MR
- Causation shows how fault is a basic component of law
- The AR must be voluntary but can also occur in an omission
- The availability of defences where there is AR and MR but no fault, partial defences which allow crimes to be less blameworthy which is a lower level of fault. Strict liability cases may not be considered criminal but the AR has an element of fault
Sentencing = Criminal Justice Act 2003
- Must consider the seriousness of any offencer and consider the offender’s culpability in commiting the offence and any harm caused
- A degree of culpability is important understaning the extent of recklessness, intent or negligence involved
Civil Law =
- Liability is imposed where a party is at fault
- Damages is intended to restore the claimant
- Vicarious liability can occur without fault
Justice =
Definition = Fairness, equality and even handedness in the law
Theorists:
1. Plato = Justice is harmony between different sectors of society
2. Aristotle = There must be proportionality and achieving a middle way
3. Aquinas = Justice governs relationships and deals with people as they deserve
Three theories of justice:
Distrubitive Justice = This is the fair allocation of benefits and responsibilities.
Key Thinkers of Distrubitive Justice:
1. Aristotle = Justice is how individuals deal with each other and the state should make and enforce laws. A distrubitve state would share out wealth based on merit. There must be a need for proportionality
2. Thomas Aquinas = Justice governs our relationships with people so we should treat people as they deserve. Justice should achieve the common good for the individual and society. There should be due proportion which is the idea that people receive what they are due in accordance with their merit, rank and need
3. Karl Marx = For each according to his ability, to each according to his need. Each should recieve according to their need irrelevant of the personal contribution to society
4. Chaim Perelman = Justice cannot be studied as it is based on subjective values
Utilitarianism =
Key Thinkers of Utilitarianism:
1. Jeremy Bentham = He believed the more an action increases overall happiness, the more valuable it is. They are only interested in the outcome and not the act. Maximising happiness is the object of justice but may sacrifice the interest of the individual
2. John Stuart Mill = Actions are right in proportion to promoting happiness. He focussed on the quality of happiness and that justice includes respect, good faith and impartiality. Punishment can only be justified when it brings a benefit
Social Justice = The ability people have to realise their own potential, equal justice in the whole society and everyone has equal rights regardless of their place in society
Key Thinkers of Social Justice:
1. John Rawls = Justice is fairness based on two basic principles. Inequalities can exist but there must be an equal right to schemes where they benefit the least advantaged
2. Robert Nozick = Theory of justice which is based on the principle of acquisition, justice in transfer and rectification of injustice. This deals with property and if it is wrongfully obtained and therefore provide a remedy
The three types of justice =
1. Procedural Justice: Concerned with making and implementing decisions according to a fair process. (Legal Aid)
2. Corrective Justice: The law restores the imbalance between individuals or the state (Damages, sentences and possibility of reoffending)
3. Substantive Justice: The law itself must be just (Defences and life sentences)
Legality vs Morality =
- A rule is defined by Twining and Miers as a general norm mandatating or guiding conduct
- This general norm is what we submit ourselves to voluntarily due to morals and because it is enforceable by law
Theories of Law =
1. Legal Positivism: The theory of law that is based on that laws are valid when they are made by recognised legislative power. Jeremy Bentham thinks morality is rrelavant to thw law as it does not affect the validity of law. John Austin developed the command theory of law which is that laws are commands by the soveriegn enforced by sanctions and objeyed by the majority
2. Natural Law: Man-made laws should oblige with a higher moral authority or they lack validity. Thomas Aquinas set out four kinds of laws which is based on the ten commandments. This is the eternal, natural, positive divine and positive human law. Lon Fuller rejected this as he argued the law serves a purpose to achieve social order. Laws must be published, clear not contradictory, constant
Morality =
- Morality can be personal or a collective society
- This specifies what is right and wrong, this can change over time
- Laws try to reflect morality
Pluralism =
- A pluralist society is where the people in it believe different things but tolerate other beliefs even when they do not match
- Morality is kept seperate to law due to different views and beliefs
Law and Morality =
- They both set the standard
- Dictate the way people are expected to behave
- Indicate duties and obligations
- Legal rules are strenghtened when they reflect moral rules
Society =
Society =
- Society is a group of people with common territory, interaction and culture
- Pluralism is a type of society where members of the minority maintain their independent cultural identity. Pluralism still has a dominant culture but allows smaller groups to keep customs as belief if they are consistent with the laws. Many groups retain their traditions or some assimilate to fit in. Some culturas may contradict oen another and therefore congregate with others with shared identities
Law in Society =
- Need a transparent legal system controlling society through regulations
- Law should be freely and easily accessible
- There are eight principles of the rule of law in society, courts should be accessible and affordable, everyone should be treated equally, respect for human rights, only punished for crimes set out by the law, the state cannot act at a whim
Role of Law in Society =
1. Protect people from harm
2. Ensure a common good
3. To settle arguments and disputes
Social control =
- Informal social control is family and peers
- Formal social control is agencies such as the CJS
- Roscoe Pound suggested that subject matter of law involves human nature which requires social control. This explains human interests in a social order, express what the majority want from the law and guide the courts in applying the law
- Social control entails rules of behaviour that should be followed under good manner and compulsory defined by the law
- However some rules are confusing and inconsistent
Balancing public interest =
- Prosecution will take place unless there is enough public interest against it
- Eg. Assisted suicide
- The law deals with competing interests
Societys involvement in law =
- Societies settle legal cases agreed by the entire community
- The jury system is based on this
- An example of this is the reasonable man
- The law recognises equality even if it does not always enforce it
Contract Law =
- Confronted with two innocent parties
- They are not always equal
- Law catergorising parties as consumers or traders
- Third parties can also have an interest
- The stronger party may be able to dictate terms and the weaker party can only decline the offer
