Nature of Law: Law and Society Flashcards
What is society?
A group of people with common territory, interaction and culture.
E.g. language, beliefs and material objects.
What is pluralism?
A form of society in which members of a minority group maintain their independent cultural tradtions whilst still being apart of a wider society.
What is assimilation?
When groups seeking to become part of a pluralistic society give up some of their traditions in order to fit in.
In a pluralistic society, no group is more influential than another.
Why is this not true in some cases?
Prejudice and discrimination work to keep many groups out of the political process or to prevent free expression of their beliefs.
How does the law attempt to control society through regulation?
The set of laws that are established are freely and easily accessible to everyone.
Accordignt to Lord Bingham, the principle of the rule of law is that “all persons and authorities within the state… should be bound by and entitled to the benefitof laws”
According to Lord Bingham, what are the 8 principles he established the rule of law through?
The stateMust abide by both domestic and international law so no government has the ability to act at whim.
People should be only be punished for crime set out by law.
Questions on the infringement of rights should be subject to the application of law, not discretion.
The law should be accessible clear precise and open to public scrutiny.
All people should be treated equally.
There must be respect for human rights.
Courts must be accessible, affordable and cases should be heard without excessive delay.
The means must be provided for resolving without prohibitive cost or inordinate delay.
What are the results of the 8 principles by Lord Bingham?
The role of law in society is to:
* protect people from harm
* ensure common good - by providing facillities such as education for all.
* settle arguments and disputes.
These roles result in regulating and controlling society and make a balance between competing interests within society.
The balance between two sectors of society is aimed to achieve social control.
Social control is the ways in which our behaviour, thoughts and appearance are regulated by by norms, laws and social structures of soociety
What are the two types of social control?
Informal - occurs through the family, peer group, the local community.
Formal - occurs through social agencies who have a role of maintaining order e.g. the criminal justice system.
The lack of social control would lead to anarchy
According to Social Control Through Law by Rosco Pound, law involves the examination of the expressions of human nature which require social control to identify individual expectations.
What are the social-ethical principles identified by Pound?
They identify and explain human claims, demands, or interests of a given social order.
They express what the majority of individuals in a given society want the law to do.
They guide the courts in applying the law.
When considering the balance of interests, what three questions should 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?
How can interests be identified in contract law?
By categorising the parties ta a contract as consumers or traders under the Consumer Rights Act 2015.
What is the conflict between interests in contract law?
The conflict arises from the desire of the stronger party to dictate the terms of the contract.
What is the legal mechanism by which the conflict is mediated in contract law?
The law addresses the conflicts by
* implying terms in contracts between traders and consumers through the Consumer Rights Act 2015
* regulating the legal effectiveness of exclusion clauses in contracts not covered by the Consumer Rights Act 2015
* through the Contracts Act 1999
* through judicial creativity with respect to remedies.
What is fault?
The idea of blameworthiness to ensure that the person to blame has legal responsibility.
