Law and Society Flashcards
Whats the role for law in society?
Emile Durkheim considered law to be a boundary maintaining device, with 2 purposes:
1) Define sanctions.
2) To prescribe punishment by way of deferring us from creating social instability.
What does Emile Durkheim suggest maintains social stability?
Legal structures - 2 types
1) Repressive: Criminal law- aim is to maintain law and order, punishment for offender. Aim is also to protect society, justification for prison sentence.
2) Restitution: Civil law- aim is to uphold the rights of individuals + businesses. Compensation to put parties back into position they would’ve been in if their rights had not been violated.
How is the law a social control mechanism?
Law comprised rules for controlling our behaviour, to keep order in society.
These rules develop from the behaviour that society has, overtime, accepted as “appropriate” or “normal”.
What is a rule?
Something that determines the way in which we behave. We either:
- Submit ourselves to the rule voluntarily as with moral rules OR
- Have to follow the rule as it is enforceable in some way as is the case with law.
How does the law create and deal with consensus and conflict?
Law must create balance when our rights or interests conflict.
Example of when the law dealt with consensus and conflict?
Miller v Jackson - cricket balls going into garden.
- Public interest represented by local community + cricket club. Private interest of Mr + Mrs Miller, unable to use garden. CA decided in favour of public interest + refused injunction to stop game.
Interests were on different levels so couldn’t be balanced.
What did Rudolf von Jhering and Roscoe Pound define rights and interests as?
- Principles identified by individuals and/or the state as being of fundamental importance.
- Individual interests: Survival, freedom, education, justice - associated with human rights law.
- States interests: Physical security and Financial security.
When do interests conflict?
Individuals can conflict with:
- Other Individuals- E.g starving mans method of survival may be to steal another persons bread.
- The state- E.g suspected terrorists interest in freedom will conflict with the state’s interest in security.
Shamima Begum
How are conflicts between individuals and the state dealt with?
Procedural laws, such as the rule in Terrorism Act 2006 that allows police to hold for up to 14 days.
How are conflicts between individual interests dealt with?
Substantive law such as theft.
DPP v Majewski- restriction of defence for policy.
What is Roscoe Pound’s view on how a just result in every case can be achieved?
- If interests can be balanced.
Can only be balanced if they were on the same level - state v state or individual v individual.
Roscoe Pound’s view on law and society?
- Associated with social engineering, emphasising the importance of social relationships in the development of law.
- Laws purpose is to attempt consensus but be prepared to deal with conflict.
What did Rudolf Von Jhering do?
Analysed the law in the broad context of society.
What is the realist approach to law making?
- Reason judges disagree + rely on precedent is because there is no right answer in most legal disputes; only different subjective opinions.
- Precedents + statutes are not sufficient to determine the correct legal outcomes + often the judgement is a matter of a particular judge’s political opinions.
Is the realist approach to law making accurate?
- It must be the case or there would be far fewer disputes + results could be far more accurately predicted + disputes settled without going to court.
- Notion that judge begins with outcome + works backwards to justify it. - Published judgment rationalises the arbitrary nature of the decision made in respect of real human need rather than following objective legal rules.
