Nature Of Law Flashcards
what are laws?
- 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 (i.e. imprisonment)
whats criminal law?
- 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
whats civil law about?
- 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
- Puts wrongs right, compensates individuals for losses, clarifies relationships between individuals.
what is pluralism/pluralist? (Law and Society)
- 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
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.
Binghams’ four primary roles of law in society
- to protect people from harm
- to ensure common goods (nhs,education)
- to settle arguments and disputes
-to persaude people to do the right thing
what does Cohen say about law and society in regards to the media?
Cohen states: “The 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)
what does Lord Templeman believe?
“need for issues of policy and public interest to be weighed” (NL)
what does Lord Mustill believe?
“rights of an individual to live his life as he chooses” (P)
Pound formulated three social ethnic principles of what social control does
what is pounds belief ? (L&S)
Pound formulated three social ethnic principles of what social control does
- 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
Pound: “individual interests, public interests and social interests”
what does durkheim believe (L&S)
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.
Conflict Theory (Marx) (L&S)
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
Labelling Theory
- 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
Tort
- State does not want to create a compensation culture
as this would open the floodgates to cases - Feb 16’ NHS 10,000 negligence claims made, amount paid out was £1.3 billion
Consensus theory (l&S)
- 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
House of Commons Select Committee report 2016 magistrates?
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
what an argument for ? (L&M)
Society’s relationship with the law is in danger of becoming more blurred.
- law and morality - in a pluralistic society while law are formal rules enforced by the state, morality encompasses personal or societal beliefs about right or wrong. Pluralistic societies have diverse moral perspectives leading to challenges aligning legal standards with moral expectations
ex : assisted dying highlights tensions between legal prohibitions vs moral arguments for autonomy and compassion
Legal realism
- 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
- Holmes if the law were merely a system of rules, we would not need lawyers as judges would simply add the rules”-
Legal realism is positivist as it considers the law as it is, realists are interested in law rather than society
Jhering theory
“law is a means of ordering a society in which there are many competing interests that require regulation”
what does Hohfeld believe?
distinguished between rights and liberties he categorised relationships as jural correlatives and jural opposites
what is law concerned with ? (L&J)
Law is concerned with making, applying and enforcing rules does not necessarily mean that justice is achieved, or we wouldn’t need the:
- 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)
what is justice ?
- Justice is one goal to which the law naturally strives, but law does not produce justice in every case justice is not the primary consideration of every case
ex: - 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
what is Utilitarianism?
- A law which increases the total happiness or welfare of society is just (Bentham)
produces the greatest good for the greatest number
