Law and Society Flashcards
what is society
a group of people with common territory, interaction and culture
many who share aspects of culture, like language, beliefs, values, behaviour
what is pluralism
a form of society in which members of minority groups maintain their independent cultural traditions
UK
what is assimilation
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
informal mechanisms of prejudice and discrimination
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
roles for law in society
- 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
what is social control
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
balancing competing interests, 3 Qs to be considered
- what interests can be identified?
- what is the conflict between these interests?
- what is the legal mechanism by which the conflict is mediated?
human rights and balancing of interests
balances the individual and his/her freedoms under ECHR with law of state.
between HR and the state and its organs
HR 3 ways of balancing interests
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
if declaration of incompatibility is made of domestic law, what choices does govt have?
- doing nothing
- changing offending law
- making remedial order, can include amending an Act or piece of secondary legislation, can be repealed by ministerial order
theorists about interests- Von Jhering
-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
theorists about interests- Pound
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
theorists about interests- Hohfield
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
how does margin of appreciation allow balancing of interests?
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
case for Pound’s argument
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
A.2 and balancing conflicting interests case
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”.
A.5 and balancing conflicting interests
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.
