NEGLIGENCE- law & justice essay Flashcards
MEANING-working definition for law?
‘a set of rules and principles created and enforced by the state’
MEANING-what could be argued?
whether the law does justice
MEANING-what is justice?
Justice can be described as fairness or evenhandedness
MEANING-what is important in a democratic society?
important in a democratic society that the law observes fairness and tolerance
MEANING-what are the two basic definitions with justice in law?
formal justice and substantive justice
MEANING-what is the whole process?
Formal justice relates to how laws are made and how the legal system operates. It also is about applying the legal rules to everyone. Those who apply rules should apply without preference for the rich and powerful.Formal justice examples include, the doctrine of precedent.
MEANING-what is formal justice examples?
Formal justice examples include, the doctrine of precedent. This system ensures that cases are applied on a like for like basis so that everyone is treated equally and fairly
MEANING-what is substantive justice?
much broader than formal justice. It considers whether the rules themselves are fair, however it is very to decide what is considered to be fair
MEANING-what was the decision in rvr with substantive justice?
The decision in R v R(1991) criminalized rape within marriage and shows substantive justice well. It is worth considering whether formal justice applied
MEANING-what is an example of substantive?
An example of substantial justice is occupier’s liability towards trespassers
MEANING-what was said with the occupier’s liability towards trespassers example?
Here it could be said that there is justice for the trespasser due to the injury caused to him hw this may be considered unfair for the occupier who’s land was being trespassed on, = justice not for occ
MEANING-what is the first theory?
Aristotle’s Distributive Justice
MEANING-what does Aristotle’s Distributive Justice theory recognise?
theory recognises that not all members of society have the same advantages
MEANING-what are examples of distributive justice?
include compensation in tort law -damages will apply to c wont be applied same to others
MEANING-what would distributive justice also do?
Distributive justice would also balance both parties rights
MEANING-example for Distributive justice would also balance both parties rights?
Brannan v Airtours
MEANING-what is another theory?
Bentham’s Utilitarianism
MEANING-what is Bentham’s Utilitarianism based on?
policy decision - if individ loses out it still for the greater good on society
MEANING-what do Utilitarian’s assess?
Utilitarian’s assess the justice of law by looking at their consequences
MEANING-what are examples of Utilitarianism?
Hill v Chief Constable of West Yorkshire (1998) c denied comp due to policy
MEANING-what is the third theory?
Rawls’ theory of justice
MEANING-what does rawls reject?
Rawls is the opposite to ultilarianism
MEANING-what would individs discuss in rawls theory?
The individuals would discuss the principles without knowing what their position in society is to be male or female; old or young, etc ensure that the ideas put forward really are the best for all members of society
MEANING-what is the final theory?
Nozick’s Market-Based Justice
MEANING-what does nozick argue?
Nozick argues that for a truly just society the state should have the minimum rights to interfere in the affairs of individuals.
ACHIEVE?- what may be questioned?
It may be questioned whether the law achieves justice
ACHIEVE?- how does the law attempt to achieve justice?
The way in which the law attempts to achieve justice can be seen in the rules of statutory interpretation
ACHIEVE?- what does it ensure if judge adopts literal approach?
if judge does literal approach to interp of stat it ensures that justice is applied evenly and uniformly
ACHIEVE?- what does policies on criminal sentencing ensure?
The fact that there are policies on criminal sentencing ensures that all wrongdoers are treated equally
ACHIEVE?- what will affect judges ability to sentence?
Factors such as the type of offence, its seriousness, whether it is a first time or repeat offence will all affect the judge’s ability to sentence fairly and proportionately
ACHIEVE?- what can fairness and proportion also be seen in?
Similar rules of fairness and proportion can also be seen in the calculation of damages in tort law
ACHIEVE?- what is fairness and prop slow in?
Sometimes however the law appears to be slow to respond to accusations of injustice.
ACHIEVE?- what did the court take a long time to react to?
It took the court a long time to react to the fact that women had slow burn response in provaction compared to males It wasn’t until cases like Ahluwalia (1992)that changes were made.
ACHIEVE?- what did the neighbour principle introduce?
The ‘neighbour principle’ introduced a fair and reasonable general principle of legal conduct between individuals.
ACHIEVE?- what is another example of law achieving justice?
Another example is the law on Occupiers Liability, which was created from the need to offer justice to those that are injured on another’s land and was extended by the OLA (1984) to cater for trespassers rights to
EVAL- what can be asked with justice?
It can be asked whether justice can ever be achieved. This is a difficult objective
EVAL- what has to be considered in criminal law?
In criminal law the rights and expectations of the victim defendant and general public have to be considered
EVAL- what is an example where justice appears satisfactory?
having a jury of 12 people making a balanced decision general public given chance for justice
EVAL- what does the jury also have?
But even the jury has its criticisms such as the opportunity for bias etc
EVAL- what has justice not been achieved in?
Justice has not been achieved in the many instances of miscarriages of justice
EVAL- what is example of injustice?
Sam Hallam case, were Sam was wrongly found guilty of a murder, which he did not commit and was sentenced and jailed. only recently released
EVAL- what can be hampered?
The ability to achieve complete justice can be hampered by several things
EVAL- what could it be hampered by?
stat interp where u have to look at parliamants authority
EVAL- when will this not happen?
But this may not happen if the judicial approach fails to give parliaments true intent but could be good as perhaps judicary can see that strict application of law could lead to injustice could apply mischief rule to achieve justice
EVAL- what can the good in judiciary be seen in?
Smith v Hughes
EVAL- what are other examples of other justice based dec?
Donoghue V Stevenson’s neighbour principle and the general principles of negligence = jusitce
