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Law Paper 1 > Module 1 - Nature of law > Flashcards

Module 1 - Nature of law Flashcards

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1
Q

What is the definition of a law?

A
  • A law is a rule of conduct in force over a certain territory which must be obeyed by all persons on that territory; violation of these rules lead to punishment
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2
Q

What are the defining traits of criminal law?

A
  • Sets out the types of behaviours which are forbidden at risk of punishment, i.e. murder, assault and theft
  • Criminal punished but victim doesn’t always receive compensation
  • Person is found guilty or not guilty
  • Must be beyond reasonable doubt
  • R (The Crown) v Defendant; state prosecutes
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3
Q

What is the hierachy of courts in criminal law?

A

Magistrates court;
Crown Court;
Court of Appeals (Criminal);
Supreme Court;
ECtHR (European Court of Human Rights)

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4
Q

What are the defining traits of civil law?

A
  • About private disputes between individuals and/or businesses; i.e. contract, law of tort, family law, employment law.
  • Must pay compensation/an award, but no jail time.
  • A defendant is liable or not liable
  • Decided on balance of probability (majority decide liability)
  • If liable, compensation / remedy for claimant/plaintiff
  • Claimant v Defendant
  • Puts wrongs right, compensates individuals for losses, clarifies relationships between individuals.
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5
Q

What is the hierachy of courts in civil law?

A

Tribunals;
County Court;
High Court;
Court of Appeals (Civil);
Supreme Court;
ECJ (European Court of Justice)

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6
Q

What is morality, and what are two types of issues which pertain to morality?

A

Morality is based on what people believe to be acceptable, but there is no shared morality; it adjusts depending on circumstances, culture, and religion; i.e. contentious issues like adultery and abortion

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7
Q

What are the defining traits of morals?

A
  • Develop slowly over a period
  • Voluntary, “ought” to be obeyed
  • No official sanctions for breaking the but enforced by disapproval of society
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8
Q

What are the defining traits of law (compared to morals)?

A
  • Can be made overnight, involuntary; must be obeyed
  • Breaking legal rules results in official sanctions enforced in court
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9
Q

What is natural law?

A
  • Based on morality; law and morals seen as interlinked
  • Law comes from a higher source
  • Immoral law need not necessarily be obeyed
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10
Q

Where did Aquinas believe law came from?

A

God

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11
Q

Where did Aristotle believe law came from?

A

Nature

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12
Q

Where did Fuller believe law came from?

A

Inside of us

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13
Q

What is positivism?

A
  • Sees law and morals as separate issues
  • If a law has been correctly made, it should normally be obeyed, even if immoral; scientific approach
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14
Q

Name two positivst philosphers, and what did they see law as?

A

Kelsen and Durkheim

(they believed in positivism, both saw law as a form of social control)

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15
Q

When and where was the Hart-Devlin debate?

A

1957, Wolfenden Committee

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16
Q

What was the Hart-Devlin debate?

A

It recommended that prostitution and homosexuality in private should no longer be criminal

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17
Q

What did Hart believe?

A

Hart (positivist and academic) agreed; believes that law and morality should be separate, morality is private, and that the law should not be used to enforce morality (unless the conduct could harm)

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18
Q

What did Devlin believe?

A

Devlin (natural law supporter and a judge) disagreed; law and morality inseparable, law should intervene to support morality as immoral acts could undermine society; should enforce moral rules to protect society.

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19
Q

What is pluralism?

A

Pluralism is defined as a form of society in which members of minority groups maintain their independent traditions; a pluralist is somebody who believes in the existence of different types of people and beliefs; there must be tolerance in society for pluralism.
Groups seeking to fit in often have to assimilate while giving up certain parts of their culture; the UK is very multicultural but also institutionally racist.

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20
Q

What were Binghams’ four primary roles of law in society?

A
  • To protect people from harm
  • To ensure a common good (e.g education/NHS)
  • To settle arguments and disputes
  • To persuade people to do the right thing
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21
Q

What did Cohen believe, surrounding the media and problems?

A

“Media helps exaggerate the problem, rather than tackling it. This allows the issue to grow” (i.e. stereotypes surrounding knife crime; in actuality, higher amount of white stabbings compared to black on black crime)

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22
Q

Lord Templeman; what did he believe, and what did he say surrounding policy and public interest?

A

Lord Templeman; “need for issues of policy and public interest to be weighed” (natural law)

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23
Q

Lord Mustill; what did he believe, and what did he say surrounding policy and public interest?

A

Lord Mustill; “rights of an individual to live his life as he chooses” (positivism)

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24
Q

What were Pound’s three social ethnic principles of what social control does?

A
  • Identify and explain human claims, demands, interests of a social order
  • Express what majority wants the law to do
  • Guide the courts in applying the law
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25
Q

What did Pound say about interests?

A

Pound: “individual interests, public interests and social interests”

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26
Q

What is consensus theory?

A
  • A social theory that holds a particular political or economic system is a fair system, and that social change should take place within the social institutions provided by it; i.e. economic and politics is fair for all in society
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27
Q

What did Durkheim believe in relation to consensus theory?

A

Durkheim believed that the importance of the presence of a consensus is that it provides people with an understanding of what is acceptable and what is not.

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28
Q

What did Marx believe in relation to conflict theory?

A
  • Claims that society is in a state of conflict due to the competition of limited resources.
  • Social order is maintained through domination and power.
  • Those with wealth try to hold onto it by any means, including the suppression of the poor; Argues against consensus and Durkheim
29
Q

What is the labelling theory, and give one example for it.

A
  • Most people commit deviant and criminal acts but only some are caught and punished for them; usually unfairly, and rooted in discrimination / stereotypes
    i.e. April 15’ - March 16’; Stop and searches had fallen across all ethnic groups, but searches on white people dropped the most compared to BME’s; BME’s were three times more likely to be stopped.
30
Q

What did the House of Commons Select Committee report 2016 suggest/find surrounding magistrates?

A

House of Commons Select Committee report 2016 suggested that they must increase diversity in the magistrates and rebalance the age profile;
53% are females, 89% are white, 86% over 50, 1% under 30, 4% disabled

31
Q

What is legal realism, and is it positivist or natural law?

A
  • The view that we should understand the law as it is practised in the courts, rather than as it is set out in statues or books
  • Legal realism is positivist as it considers the law as it is; realists are interested in law rather than society; gives important to what is really happening in society
32
Q

What did Holmes say about legal realism?

A
  • Holmes; if the law were merely a system of rules, we would not need lawyers as judges would simply add the rules”
33
Q

What did Jhering say about law ordering society?

A

Jhering; “law is a means of ordering a society in which there are many competing interests that require regulation”

34
Q

What did Hohfeld say about rights and liberties?

A

Hohfeld distinguished between rights and liberties; he categorised relationships as jural correlatives and jural opposites

35
Q

What are three ways that cases can be reversed if some believe that justice was not achieved?

A
  • Appeals System (appeals to a higher court)
  • Criminal Cases Review Commission (investigates cases from the past found to have been ruled incorrectly, obtaining full justice)
  • 1966 Practice Statement (court overruled)
36
Q

What is ‘stare decisis’?

A
  • The doctrine of “stare decisis” (treating like cases alike, but this can lead to situations that can be seen as unjust). Justice is based on fair and equal treatment for all.
37
Q

What is the brief overview of R v R?

A
  • In R v R, the HoL changed the 200 year old rule that a man could not be guilty of raping his wife; person convicted likely thought this was injustice
38
Q

What is utilitarianism?

A
  • A law which increases the total happiness or welfare of society is just (Bentham); produces the greatest good for the greatest number; ignores individual rights and the minority
39
Q

What did the philospher Mill think about utilitarianism?

A
  • He adopted it (had a minimalist approach to law, so that it should only interfere with individual rights where harm could be caused to another)
40
Q

What is economic theory?

A
  • More politically based, economic theories look at the law in terms of property rights and distribution of wealth
41
Q

What would Marx think about economic theory?

A

Marx would argue against individual rights and for wealth to be distributed according to need

42
Q

What would Nozick think about economic theory?

A

Nozick concentrated on how property/wealth was obtained - if it was fair, the state should not intervene to redistribute

43
Q

What did Aristotle introduce, in connection with justice?

A

Aristotle introduced the principle of distributive justice; the allocation of assets in society should be proportional to a person’s claim on them

44
Q

What did Aquinas propose, in connection with law?

A

Aquinas proposed the Natural Law theory; if a higher law is followed, the result will be justice; a law that goes against God is always unjust

45
Q

What did Bentham propose, in connection with legal reform?

A

Bentham proposed Utilitarianism; aim to maximise human happiness; sum of happiness assessed numerically; influential in legal reform and appears to be based on democratic principles

46
Q

Was Bentham a supporter of natural law or positivism?

A

Positivism developed the ideas of Bentham, who rejected natural law; laws may be valid irrespective of its moral content or whether it delivers justice; Hart supports this.

47
Q

What happened in Gillick (law and morality)?

A
  • Mother brought case arguing a doctor had no right to prescribe contraceptives to her 15 year old daughter
  • She lost; HL held that children under 16 had the right to make their own decisions on treatment as long as they were competent to do so.
48
Q

What happened in Pretty // Re B (law and morality)?

A
  • Husband was not allowed to give his wife a lethal injection (euthanasia, all parties consented), however in Re B, switching off the machine was okay (was braindead)
49
Q

What happened in Wilson 1996 // Brown 1993 (law and society)?

A
  • In Brown 1993, a homosexual group used objects to sexually please themselves and a select few hurt themselves. Even though it was consensual, some were convicted of crime (battery) and punished.
  • However, in Wilson 1996, a heterosexual couple did the same exact thing and they were not convicted of a crime, showing the double standards of the legal system.
50
Q

What happened in Bolton v Stone 1951 (law and society)?

A
  • Ball hit out of the baseball ground, smashed a car window; had only happened six times in the last thirty years, and the stadium had high nets to prevent this from happening; company NOT liable as it was rare (meaning very hard to sue)
51
Q

What happened in Topps v London Buses (law and society)?

A
  • Random man joyrides in unlocked bus and runs away (crashes and causes property damage); judge rules that the bus company is not liable, even though the keys were left by the driver on purpose
52
Q

What happened in the Mike Tyson case (law and justice)?

A
  • Convicted for rape; woman testifies that he was being a pervert, yet witnesses testify otherwise (but since it was two weeks before, it was thrown out); woman also accused another celebrity prior which was proven to be false (evidence also thrown out); Tyson did five years in jail
53
Q

What happened to the Guildford 4 // Birmingham 6 (law and justice)?

A
  • IRA wanted independence of Ireland and began to commit terrorist attacks on UK soil; bombings in Birmingham and Guildford
  • UK police could not find actual terrorists so they framed Northern Irish working class people, who were each convicted and served lengthy sentences in jail. Government found out and kept it secret, and a judge locked up the cases for seventy years. Eventually found not guilty and released.
54
Q

What happened to Tony Martin (law and justice)?

A
  • Martin killed a burglar and injured another on his own property; convicted of murder and the other burglar claimed compensation, causing controversy; shot them in the dark with likely intent to kill. However, had called the police numerous times to no avail, went to meetings to stop the robberies; attempted to do it legally. Suffered from depression in jail; reduced sentence
55
Q

What happened to OJ Simpson (law and justice)?

A
  • Likely murdered his ex-wife and her friend; police officers falsified evidence during trial (gloves and blood planted, proven as blood clots differently when splattered fresh / placed after being put in a lab); found not guilty criminally but later found guilty civilly (majority needed, not reasonable doubt)
56
Q

What happened in R v Ahluwalia (law and justice)?

A
  • Woman beaten up and raped by her husband for years; after one particular beating, she came home and lit her husband on fire and let him burn to dearth; guilty of murder, self-defense plea not granted (“two hour cooling off” period, after that, classed as revenge, law has now changed), but overturned to three years with the admittance of responsibility
57
Q

What happened to Huw Edwards (law and justice)?

A
  • Well known upper class white male BBC presenter found with child sexual abuse photographs on his phone, including pictures which were deemed “Class A” (the worst type of child abuse photograph); given a sixth month suspended sentence controversially
58
Q

What is the 2013 Householders and the Use of Force Against Intruders Act, and what case does it relate to?

A
  • No prosecution will be started in most circumstances for self-defence against a personal stack in your home; the force must be reasonable and not disproportionate
  • Relates to Tony Martin case (law and justice)
59
Q

What is the 1994 Criminal Justice and Public Act, and what event caused its creation? (law and morality)

A

Castle Morton Common festival 1992; giant party for seven days which lead of moral panic; lead to the Criminal Justice and Public Act

60
Q

What is the Access to Justice Act 1999? (law and justice)

A
  • Provided more ways to receive legal aid (i.e. advice bureau, legal aid, pro bono and insurance; improved access to advice and representation)
61
Q

What is a statute?

A

Statute = parliamentary law (law made by MPs)

62
Q

What is common law?

A

Common law = judge-made law

63
Q

What is law of tort?

A

Law of Tort = suing somebody for negligence

64
Q

What is society?

A

Society = a group of people who share common territory/culture/interaction

65
Q

Where are criminal cases heard?

A

Magistrates’ Court and the Crown Court.

66
Q

Where are civil cases heard?

A

County Court and the High Court.

67
Q

What was the earliest source of law, something which common law was developed from?

A

Custom; a custom is a rule or behaviour which develops in a community without being deliberately invented.

68
Q

What did Joseph Raz recognise about the rule of law?

A

He recognised that the rule of law was a way of controlling discretion rather than preventing it completely.

69
Q

What are the three elements in which Dicey held that ‘created the rule of law’?

A
  • An absence of arbitrary power on the part of the state
  • Equality before the law
  • Supremacy of ordinary law

Law Paper 1 (6 decks)

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