Law and Society

Question 1

what is society

Answer 1

a group of people with common territory, interaction and culture
many who share aspects of culture, like language, beliefs, values, behaviour

Question 2

what is pluralism

Answer 2

a form of society in which members of minority groups maintain their independent cultural traditions
UK

Question 3

what is assimilation

Answer 3

process where groups seeking to become part of pluralist society often have to give up many traditions in order to fit in.
can be seen in gradual loss of immigrants language as they assimilate to society’s use of English in UK

they don’t have to give up all former beliefs and practices e.g. chinese communities celebrate the Lunar new year

Question 4

informal mechanisms of prejudice and discrimination

Answer 4

work to keep many groups out of political process or prevent free expression of their values
role of law includes regulation and control of society

Question 5

roles for law in society

Answer 5

• • to protect people from harm (criminal law)
• • to ensure common good (facilities to all e.g. healthcare)
• • to settle arguments and disputes (civil law)

these make a balance between competing interests in society

Question 6

what is social control

Answer 6

ways in which our behaviour, thoughts and appearance are regulated by the norms, rules, laws and social structures of society
entails rules of conduct that should be followed by society

Question 7

balancing competing interests, 3 Qs to be considered

Answer 7

• what interests can be identified?
• what is the conflict between these interests?
• what is the legal mechanism by which the conflict is mediated?

Question 8

human rights and balancing of interests

Answer 8

balances the individual and his/her freedoms under ECHR with law of state.
between HR and the state and its organs

Question 9

HR 3 ways of balancing interests

Answer 9

1) All UK law must be interpreted, so far as its possible to do so, in way compatible with rights under convention
2) if act of parliament breaches these rights, legislation is incompatible with convention rights, law remains valid. but it remains up to parliament to decide whether to amend law
3) unlawful for any public authority to act incompatibly with HR, unless required by statutory duty to do so. where individuals rights are violated, they can bring court proceeding against public authority

Question 10

if declaration of incompatibility is made of domestic law, what choices does govt have?

Answer 10

• doing nothing
• changing offending law
• making remedial order, can include amending an Act or piece of secondary legislation, can be repealed by ministerial order

Question 11

theorists about interests- Von Jhering

Answer 11

-law is a way of ordering society where many competing interests exist.
If were not regulated, this would lead to anarchy and chaos.
law acts as a mediator- balancing the conflicts between individual’s and society’s interests

some conducts have penalties, some have rewards: this is so that the individual realigns his interests with what is best for society

Question 12

theorists about interests- Pound

Answer 12

influenced by Von, claims demands and desires can be classified:
INDIVIDUAL INTERESTS = personality, privacy, reputation, owning property
PUBLIC INTERESTS = asserted by individuals, interests of state, public order, public scrutiny
SOCIAL INTERESTS = safety, health, security of property, general morality, political progress.

competing interests can only be balanced when they are on the same plane, e.g. individual interests vs individual interests
if this didn’t happen, individual interests would always come after social interests

Question 13

theorists about interests- Hohfield

Answer 13

Distinguished between rights and liberties.

RIGHTS: an entitlement, a ‘claim-right’, will impose duty on other party
LIBERTY: freedom to act as one chooses. doesn’t impose duty

if legal interests were regarded as liberties rather than rights, people would have more freedom in their legal relationships

Question 14

how does margin of appreciation allow balancing of interests?

Answer 14

gives member states freedom, flexibility so societies can culturally decide whats right, can uphold customs whilst also giving rights, so balances interests of society and individuals

Question 15

case for Pound’s argument

Answer 15

Miller v Jackson.
Mr Miller sought an injunction to stop cricket being played on the ground bordering his property as several balls had been hit into his garden. Denying the injunction, Lord Denning said, “The public interest lies in protecting the environment by preserving our playing fields… The private interest lies in securing the privacy of his home.” The public interest thus prevailed.

social interests override private interests

Question 16

A.2 and balancing conflicting interests case

Answer 16

everyone has the right to life and no one shall be deprived of his life intentionally save in the execution of a sentence of a court. In the case of Re A, Jodie and Mary were conjoined twins. Both twins faced certain death unless separated. While the operation to separate them would preserve the life of Jodie, the separation would cause the certain death of Mary. twins’ parents, devout Roman Catholics, refused to consent to the operation. The court had to decide whether the operation to separate the twins was in the best interests of each of them. Clearly the operation was not in the best interests of Mary, as her life would come to an end. However, without the operation Mary would still only survive for a short time. The task for the Court of Appeal was to balance the interests of Jodie against Mary, and it ruled that the twins should be separated. The parents had an interest but the judges felt that their religious views should not be allowed to override the interests of the twins in light of the Children Act 1989 which states that the “interests of the child are paramount”.

Question 17

A.5 and balancing conflicting interests

Answer 17

everyone has the right to liberty and security of person. In the case of A and Others v Secretary of State for the Home Department, the House of Lords was asked to consider the case of foreign nationals who were being held indefinitely under the Anti-Terrorism Crime and Security Act 2001. The House declared that s.23 of the Act, in allowing the men’s indefinite detention, was incompatible with Article 5 of the ECHR. Lord Bingham said, “Since the right to personal liberty is among the most fundamental of the rights protected by the European Convention, any restriction of it must be closely scrutinised by the national court.” As a result of this judgement the government, in the Prevention of Terrorism Act 2005, limited the detention of foreign nationals to 28 days. However, there is continuing debate about the extent to which civil liberties should be subordinated to the need to fight the threat of terrorism.