NOL Flashcards
1 jus
one argument is that law should uphold distributive justice. this suggests that resources and wealth should be distributed equally amongst society. aristotle argued that justice is a virtue of state and how a state should aim to be. this means it should be proportional, for example as shown in tax and benefit laws in the uk. however, a different form of dj is formed by marx who suggests that from each according to his ability, to each according to his needs. this is shown through the laspo act 2012 which gives legal aid. however, this may be disagreed as it gives support to those who provide the least for society, the last productive and therefore the least deserving.
2 jus
another is that law should uphold utilitarian justice. bentham argued justice is what does the greatest good for the greatest number of people. this includes the harm principle, suggesting that a person can do what they want as long as it doesnt give harm. the case of herald of free enterprise shows this as saving the majority was deemed to uphold justice, however r v dudley and stephens states. however, procedural justice goes against
3 jus
finally, some argue that the law should uphold social and economic justice. rawls argued justice in society is based on two components. the equality of people in rights, this is called the liberty principle. basic liberties can be only be restricted for protecting liberty of sharing liberty, for example the human rights act does this. he also states justice should be based on priveledge and the economy. he argues that some people are born better off, for example being born a white middle class is not moral, it is down to luck and so should not be more rewarded than others. elieves that inequality is a fact of life and that for a truly just society, the state should have the least interference with personal affairs as possible. The state is only to get involved with the most basic needs such as protecting society from crimes such as theft, fraud, and enforcing contracts
1 mor
one argument is that law does not need to uphold morality. legal positivists argue that laws are legitimate if they are made by proper authority, and it does not matter if societal views are upheld by this. bentham argued that laws are laws even if they are immoral, for example if some people believe that the law under the suicide act 1961 which criminalises euthanasia is wrong, this does not change the legitimacy of the law. however, natural lawyers may argue that laws do engage morality, and enforce morals onto society. aquinas argued that all things are created by god, and therefore follow his laws and what governs right and wrong in society, for example the law on murder reflects the teaching of thou shall not kill in the ten commandments.
2 mor
another argument is that the law upholds the morality of society. the sexual offences act 2003 creates offences surrounding immoral sexual behaviour. although many of the offences outlined in this law would take place in private, these acts still may be deemed immoral by society and therefore are criminalised. for example, in the case of R V R the law extended to cover marital rape, this shows the law legislating on private matters, furthermore it reflects how the changing attitudes of society have influence on laws. however, mills harm principle would argue that legislating on these matters is wrong, and only offences which should cause harm are illegal - for example prostitution shouldn’t be unlawful as if consensual, no harm should occur. this shows that whilst the law may reflect morals, it might not always be beneficial to do so.
3 mor
a third argument is that laws cannot uphold morality. pluralism refers to the variety of beliefs and cultures within society. as society becomes more secular, pluralism becomes more common. this means that the law has to allow people to have diverse beliefs, whilst also ensuring the law applies fairly. for example, in r v lyons, a navy man refused on the grounds of conscientious objection, although arguing this breached his right to beliefs, he lost the appeal due to balancing rights. this shows the issues with upholding morality in the law. however, in some cases morality appears to be upheld, for example in well woman v ireland, banning information spread by an abortion ban was held to breach human rights and therefore upheld the rights and morality of certain people.
1 soc
some legal theorists suggest that law has a role in ensuring society works. functionalist durkheim argued that the law had a role in securing the futute of society. he argued that in order to be credible, the law must uphold and reflect the value consensus within society, and therefore create social solidarity in order to ensure people value their roles within society. for example, the law reflects morality and upholds majority views through acts such as the race relations act 2000. furthermore, social utalitarian jhering believed that law worked to harmonise society by promoting pleasure and take society needs over an individuals, for example parliament reflects the diversity throughout society. however, right realists may argue that the law is not effective in maintaining the workings of society is to be stricter and less lenient on criminals. right realists may argue that the laws which control society arent harsh enough to deter and control society, instead they suggest things such as increasing sentences and fines given for crimes such as drugs or driving offences. in contrast, left realists may argue that laws do not control society, as to do this more support should be offered. for example, instead of prohibiting things such as drugs, we should put support groups in place to minimise the risk of this behaviour.
2 soc
there is also evidence to suggest that law is used as a tool of opression in order to maintain societal control. karl marx believed that law is used to keep the power with the rich, by protecting their interests and demonising the poor through harsher punishment and control. for example, marxists may argue that the law regulates money, but this does not benefit the poor - this may be through the offence of benefit fraud, whilst tax evasion is legal. louis althusser also argued that the law is an ideological state apparatus, meaning it governs the way we think and act. furthermore, the system of law enforcement acts as a repressive state apparatus by punishing the transgression from the law. however, this may not be evident within the law. for example, certain laws exist which protect the working class, as well as ensuring citizens are not opressed by an overpowerful state. for example, the equality act 2010 prevents discriminaton, whilst the human rights act 1998 gives rights and freedoms to all citizens, including the right to join trade unions, and the right to a fair trial.
3 soc
however, labelling theory suggests the law is fabricated by society. labelling theory suggests that laws are created because that is how they are labelled by society. becker argued that deviancy is ‘a consequence of the application of others rules and sanctions’. this means that certain behaviours are deemed to be criminal because that is how society has labelled it. for example, benefit fraud has been labelled as criminal, unlike tax evasion. this is evident in the changing law and how certain crimes such as offences under the equality act 2010 (discrimination and harrasment) have developed with the changing views of society. however, other views may argue that society doesnt decide what is right or wrong for the entirety of the law. for example, natural lawyer aquinas argues that murder being illegal reflects a higher power, and this is something that is not in the control of society. this is also evidenced as even with a declining religious influence within society, the law on murder is not questioned. this suggests that the law may control some views within society.
