ILLT

Question 1

What is law?

Answer 1

body of rules which govern society

Question 2

What is common sense of law ?

Answer 2

loosely articulated ideas already formed about law by living in society

Question 3

Three pieces of common sense about the law

Answer 3

1. without the law there would be disorder
2. no point arguing with the law (the law’s the law)
3. the law applies to everyone equally

Question 4

Rebuttals to common sense law

Answer 4

1. It can be problematic when the law is applied equally (caveat emptor) as sometimes certain groups need to be treated differently (children)
2. sometimes the law seems to apply everyone but actually is targeted at specific groups (stop/search)

Question 5

What is ideology?

Answer 5

set of beliefs by which we make sense of the world

Question 6

Why do we respect law?

Answer 6

it claims to be neutral and impartial and just which legitimises it and persuades us to respect/obey it

Question 7

The ideology of the law is rhetorical

Answer 7

a rhetoric is an argument meant to persuade and which wants to be taken as truth

Question 8

Azande Diviner Analogy

Answer 8

like the A.D judge does not work on insight or intuition about what outcome should be but they use their knowledge of the laws and how to apply them. Judges use laws to justify decisions rather than reach decisions

Question 9

What creates order?

Answer 9

The acceptance of law and its authority

Question 10

Our belief transcends merit

Answer 10

we still believe in law despite not agreeing with it

Question 11

How does law inherit prejudices?

Answer 11

Law constructs order in its own image/its maker’s image which reinforces the prejudice of its makers

Question 12

Theory of social control

Answer 12

institutions such as education designed to produce citizens who are willing and able to control themselves and be good citizens which explains why society maintains order most of the time

Question 13

the law used to control the poor

Answer 13

social control used institutions like the welfare state to give the poor just enough to live on to prevent riot/rebellion

Question 14

Role of Social scientific knowledge

Answer 14

-‘social science’ attempts to study how societies function using scientific methods

Question 15

Role of medical/psychiatric knowledge

Answer 15

• attempt to define and measure the normal and abnormal

- they create the idea of deviance and delinquency

Question 16

What is legal power ?(Foucault)

Answer 16

• doesn’t care about motive and isn’t about rehabilitation because it is to reassert an incumbent power
• responds to acts directly

Question 17

What is disciplinary power? (Foucault)

Answer 17

• attempts to reform as it applies social and scientific knowledge about deviance/deviant families
• all about motives/nature of the offender to explain breaches of the law

Question 18

Repressive hypothesis (foucault)

Answer 18

• repression of discourse of sexuality in victorian times mirrors how power operates as repression (power to prohibit or deny access)
• in this pandemic law has been used to repress and keep us at home

Question 19

What is the belief of ‘rational grounds’ (Max Weber)

Answer 19

-the belief in the legality of enacted rules and the right that those in positions of authority have to issue them

Question 20

Why do we obey the law?

Answer 20

-it appears to be rational/reasonable and it offers certainty and transparency

Question 21

What is precedent?

Answer 21

-law reports in which law can be found to appeal/make cases

Question 22

What is ‘stare decisis’ ?

Answer 22

• lower courts must follow decision of higher courts
• appellate courts ordinarily follow their own previous decisions
• lower courts do not follow their own decisions

Question 23

How do court of appeal make their decisions?

Answer 23

• cannot appeal from decision of supreme court
• can only depart from their own decision if supreme court has dissenting opinion, when they have made decisions that conflict, if they decide their earlier decision was ignorant of statutes/binding decisions

Question 24

Ratio decidendi

Answer 24

the reason for the decision in a case, the principle or principles of law the court uses to reach its decision

Question 25

How is the ratio decidendi binding?

Answer 25

It forms a precedent which must be followed in lower courts

Question 26

Obiter dictum

Answer 26

an observation by a judge on some point of law which is non essential and doesn’t become precedent

Question 27

Descriptive ratio

Answer 27

the reason for the decision of a specific case at the moment of its delivery
-the way in which the court has considered the law should apply to particular facts of the case

Question 28

Prescriptive ratio

Answer 28

it is what subsequent courts perceive as the ratio at later moments in time

Question 29

When can we not use prior cases?

Answer 29

• significant difference in facts
• where the rule was applicable due to certain conditions but now those conditions have changed
• if there are existing international law obligations

Question 30

The literal rule of statutory interpretation

Answer 30

requires the words of a statute be read literally without distortion (do not look outside legislation to find its meaning)

Question 31

The golden rule of statutory interpretation

Answer 31

-to look beyond the words of a statute to find its purpose and give it meaning

Question 32

The mischief rule of statutory interpretation

Answer 32

-requires court to discern mischief at which a statute was aimed and to interpret the statute to eradicate that mischief

Question 33

Presumptions/maxims

Answer 33

• criminal offences require both guilty act (actus reus) and guilty mind (mens rea)
• statues interpreted in conformity to intl treaties
• statutes operate prospectively

Question 34

Noscitur a sociis

Answer 34

words take meaning for their context

Question 35

Expressio unius est exclusio alterius

Answer 35

expressed mention of one thing within a particular class impliedly excludes other things within the class
-shop owner permitted to trade on weekdays impliedly says they aren't allowed to trade on weekends

Question 36

Eisudem generis

Answer 36

general words take their meanings from particular words

Question 37

Genralia specialibus non derogant

Answer 37

particular enactment must be operative and the general enactment must be taken to affect only the other parts of the statute to which it may apply

Question 38

Natural law theory

Answer 38

• law is a good thing grounded in nature
• law should be universal idea of justice and any law that opposed this was not good law
• you could not have law without morals

Question 39

Legal positivism

Answer 39

• challenged idea of univeral morality
• law is not about universal justice
• law has a distinct form and practice

Question 40

The rule of recognition (modern positvism)

Answer 40

-provides criteria for which the validity of other rules of the system are assessed

Question 41

Legal syllogism

Answer 41

using case precedents and applying it to ur current case

Question 42

Dworkin’s criticisms of Hart

Answer 42

• judicial discretion is unjust because judges were not elected
• judges when deciding hard cases are applying underlying principles of legal system so Hart’s theory of adjudication is not correct because they aren’t purely using extreme realism