Nature of Law

Question 1

Describe theories of justice.

Answer 1

Natural Law - law should be based on absolute moral rights and wrongs.
-Kant - law should be based on categorical moral imperatives.
-Aquinas - laws should be based on ideas of faith.
-Aristotle - good laws are based on nature.
-Theft, murder, ‘love thy neighbour’ in Donoghue v Stevenson
-Problems in a pluralistic society. Idea that lying would be an absolute wrong when it isn’t.
-Bentham - ‘natural law is nonsense on stilts’
Positivism - laws should be based on making a functioning society.
-Bentham - greatest good for greatest number of people.
-SLOs.

Question 2

Define justice.

Answer 2

Lord Lloyd - it is impossible to give a definition. Is itself a moral value which everyone wants for a good life.
Lord Taylor - it is what every judge is seeking in every case.
Perelman - 6 possible definitions. based on contribution, according to needs, according to merits, according to rank, according to legal entitlement, to each equally.

Question 3

How does trial by jury achieve justice?

Answer 3

Trial by peers existed since 1066.
Lord Devlin described it as ‘the light which shows which freedom lives’
Largely supported by the public.
Roskill Committee found that many jurors didn’t understand what the judge had instructed them.
12% of jurors admitted to using the internet. Joanne Frail was the first to be convicted for internet research.
2015 legislation allows a jurors phone to be seized and searched.
Jurors use dubious methods (R v Young)

Question 4

How does access to justice achieve justice?

Answer 4

Legal Aid Act 1949 - introduced state funding,
When it was passed 80% of applicants received funding, but increasing cuts means it is now 29%.
Increasing lawyer costs and less legal aid means there is no equality of arms.
There are legal aid desserts. In some areas there are no free lawyers.
Lots of people are forced to self-represent against the prosecution which is often KCs or other high level lawyers.
Steel & Morris v UK.

Question 5

How does intoxication achieve justice?

Answer 5

The public policy message creates injustice for individuals. (Kingston)
Can cause harsh results. (Allen)
In Majewski judges argued that protecting civil liberties involves protecting people from physical violence.

Question 6

Describe theories of law in society.

Answer 6

POUND - Law acts as a social control.
- Making laws is social engineering
- Influence of church and family decreased so falls to the law.
- Without social control there would be chaos.
- Law provides predictability and security
- Involves deterrence, criminal law, negligence.
DURKHEIM - Law is a manifestation of social solidarity
- Laws reflect social norms
- There is a consensus about appropriate behaviour
- Delivered through campaigning (Hunting Act 200)
- Judges changing how the law is applied as society’s ideas change (R v R)
- Sees inequality as necessary
- Impossible to have consensus in pluralistic society
MARX - Law is always in conflict with society
- Powerful people make the law to benefit themselves and oppress the inferior
- Criminal Justice and Public Order Act 1994 (raves)
- Assumes that without law everyone would act good
BECKER - People behave in ways that reflect how the want to be labelled
- Criminal records make it hard to get jobs so they are turned to crime
- When criminals have similar characteristics it leads to stereotyping (Black people 9.5x more likely to be stopped and searched in 2017

Question 7

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