NEGLIGENCE- law & justice essay

Question 1

MEANING-working definition for law?

Answer 1

‘a set of rules and principles created and enforced by the state’

Question 2

MEANING-what could be argued?

Answer 2

whether the law does justice

Question 3

MEANING-what is justice?

Answer 3

Justice can be described as fairness or evenhandedness

Question 4

MEANING-what is important in a democratic society?

Answer 4

important in a democratic society that the law observes fairness and tolerance

Question 5

MEANING-what are the two basic definitions with justice in law?

Answer 5

formal justice and substantive justice

Question 6

MEANING-what is the whole process?

Answer 6

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.

Question 7

MEANING-what is formal justice examples?

Answer 7

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

Question 8

MEANING-what is substantive justice?

Answer 8

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

Question 9

MEANING-what was the decision in rvr with substantive justice?

Answer 9

The decision in R v R(1991) criminalized rape within marriage and shows substantive justice well. It is worth considering whether formal justice applied

Question 10

MEANING-what is an example of substantive?

Answer 10

An example of substantial justice is occupier’s liability towards trespassers

Question 11

MEANING-what was said with the occupier’s liability towards trespassers example?

Answer 11

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

Question 12

MEANING-what is the first theory?

Answer 12

Aristotle’s Distributive Justice

Question 13

MEANING-what does Aristotle’s Distributive Justice theory recognise?

Answer 13

theory recognises that not all members of society have the same advantages

Question 14

MEANING-what are examples of distributive justice?

Answer 14

include compensation in tort law -damages will apply to c wont be applied same to others

Question 15

MEANING-what would distributive justice also do?

Answer 15

Distributive justice would also balance both parties rights

Question 16

MEANING-example for Distributive justice would also balance both parties rights?

Answer 16

Brannan v Airtours

Question 17

MEANING-what is another theory?

Answer 17

Bentham’s Utilitarianism

Question 18

MEANING-what is Bentham’s Utilitarianism based on?

Answer 18

policy decision - if individ loses out it still for the greater good on society

Question 19

MEANING-what do Utilitarian’s assess?

Answer 19

Utilitarian’s assess the justice of law by looking at their consequences

Question 20

MEANING-what are examples of Utilitarianism?

Answer 20

Hill v Chief Constable of West Yorkshire (1998) c denied comp due to policy

Question 21

MEANING-what is the third theory?

Answer 21

Rawls’ theory of justice

Question 22

MEANING-what does rawls reject?

Answer 22

Rawls is the opposite to ultilarianism

Question 23

MEANING-what would individs discuss in rawls theory?

Answer 23

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

Question 24

MEANING-what is the final theory?

Answer 24

Nozick’s Market-Based Justice

Question 25

MEANING-what does nozick argue?

Answer 25

Nozick argues that for a truly just society the state should have the minimum rights to interfere in the affairs of individuals.

Question 26

ACHIEVE?- what may be questioned?

Answer 26

It may be questioned whether the law achieves justice

Question 27

ACHIEVE?- how does the law attempt to achieve justice?

Answer 27

The way in which the law attempts to achieve justice can be seen in the rules of statutory interpretation

Question 28

ACHIEVE?- what does it ensure if judge adopts literal approach?

Answer 28

if judge does literal approach to interp of stat it ensures that justice is applied evenly and uniformly

Question 29

ACHIEVE?- what does policies on criminal sentencing ensure?

Answer 29

The fact that there are policies on criminal sentencing ensures that all wrongdoers are treated equally

Question 30

ACHIEVE?- what will affect judges ability to sentence?

Answer 30

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

Question 31

ACHIEVE?- what can fairness and proportion also be seen in?

Answer 31

Similar rules of fairness and proportion can also be seen in the calculation of damages in tort law

Question 32

ACHIEVE?- what is fairness and prop slow in?

Answer 32

Sometimes however the law appears to be slow to respond to accusations of injustice.

Question 33

ACHIEVE?- what did the court take a long time to react to?

Answer 33

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.

Question 34

ACHIEVE?- what did the neighbour principle introduce?

Answer 34

The ‘neighbour principle’ introduced a fair and reasonable general principle of legal conduct between individuals.

Question 35

ACHIEVE?- what is another example of law achieving justice?

Answer 35

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

Question 36

EVAL- what can be asked with justice?

Answer 36

It can be asked whether justice can ever be achieved. This is a difficult objective

Question 37

EVAL- what has to be considered in criminal law?

Answer 37

In criminal law the rights and expectations of the victim defendant and general public have to be considered

Question 38

EVAL- what is an example where justice appears satisfactory?

Answer 38

having a jury of 12 people making a balanced decision general public given chance for justice

Question 39

EVAL- what does the jury also have?

Answer 39

But even the jury has its criticisms such as the opportunity for bias etc

Question 40

EVAL- what has justice not been achieved in?

Answer 40

Justice has not been achieved in the many instances of miscarriages of justice

Question 41

EVAL- what is example of injustice?

Answer 41

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

Question 42

EVAL- what can be hampered?

Answer 42

The ability to achieve complete justice can be hampered by several things

Question 43

EVAL- what could it be hampered by?

Answer 43

stat interp where u have to look at parliamants authority

Question 44

EVAL- when will this not happen?

Answer 44

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

Question 45

EVAL- what can the good in judiciary be seen in?

Answer 45

Smith v Hughes

Question 46

EVAL- what are other examples of other justice based dec?

Answer 46

Donoghue V Stevenson’s neighbour principle and the general principles of negligence = jusitce