paper 2 concepts Flashcards
meaning of fault
Some form of wrongdoing or blameworthiness
E.g. offence in
criminal law
E.g. negligence in tort law
Person at fault should have legal responsibility
Liability Depending on Fault – Criminal Law
Mens rea – main fault element in crime - what is in person’s mind - distinguishes between an accident and a criminal offence
Actus Reus – must be voluntary – Hill v Baxter
But can be liable for omissions if there is a duty to act e.g. R v Dytham, R v Stone and Dobinson, R v Pittwood, R v Miller
Causation – Factual– even though in R v White, D found not guilty of murder this is rectified by offence of attempt which reflects his fault
Defences – recognise D may have committed AR and MR but still not at fault e,g. self-defence, insanity
Partial Defences Murder – law recognises not all killings are equally blameworthy – level of fault may result in conviction of manslaughter instead
Sentencing – S.143 Criminal Justice Act 2003 – courts should consider D’s culpability (i.e. fault) in sentencing. Each offence has maximum sentences to reflect different levels of fault between offences. Within the same offence, mitigating and aggravating factors allow the sentence to reflect the individual fault of D
Gross Negligence Manslaughter – law allows for criminal conviction where D has no MR but negligence is so gross that sufficient fault is demonstrated to be criminal
Liability Depending on Fault – Civil Law - Tort
Tort – concerned with civil wrongs – usually liability only if party at fault
Negligence:
Breach - Blyth v Birmingham Waterworks Co. – D must fail to reach standard of reasonable man – automatically suggests D is at fault to some degree
Causation – e.g. Barnett v Kensington and Chelsea Hospital – but no other tort available even though Doctor at fault
Damages – compensatory – intended to restore C to pre-accident position – D’s fault linked to extent of harm he has caused
Contributory Negligence – where D contributes to own harm, damages reduced – splits fault between the two
Where Liability Does Not Depend on Fault
Crime
Strict Liability – No MR so could be viewed as no fault. But AR still has an element of fault – someone has responsibility for event – important for safety and security of society
Absolute Liability – AR not voluntary e.g. Larsonneur
Civil
Nuisance - Rylands v Fletcher – C able to claim without having to show fault on behalf of D - example of strict liability (but defences are available)
Vicarious Liability - employers responsible for employees’ torts even when taken all reasonable steps to prevent misconduct (so arguably no fault) e.g. Limpus v London Omnibus Co. But could be argued employer is at fault for employing the employee in the first place or failing to supervise him properly
the distinction between laws and morals - meaning of law
An enforceable rule which determines how we behave
2 main theories about whether laws need to be also be moral:
Legal Positivism - theory that laws are valid if they are made by a recognised legislative power – do not have to satisfy a higher authority
Bentham – Utilitarian – “A law which exists is a law, though we happen to dislike it” – argues that morality is irrelevant to law
Austin – Command Theory of Law – laws are commands issued by the sovereign and enforced by sanctions
HLA Hart – believed in separation of law and morality
Natural Law – the validity of man made laws depends on whether they are compatible with a higher moral authority – law should be based on morality
Aquinas – Natural Law is the moral code which comes from a higher authority – man made law must conform with it
Fuller – laws purpose is to achieve social order – people’s conduct should be guided by rules – law should have an inner morality
the distinction between law and morals - meaning of morality
Dictionary – a system of values and principles of conduct
Can be a personal morality or a collective morality of society
Morality is prescriptive – it specifies what ought to be done and describes acceptable and unacceptable behaviour
Influenced largely by religious beliefs –e.g. Bible – 10 commandments and teachings of Christ, e.g. Koran – moral code for Muslims
Change over time – e.g. attitudes to abortion, homosexuality, drink-driving
In the past, society had more of a common morality
Emile Durkheim – factors which have contributed to the breakdown of common morality – growing ethnic diversity in society and fading influence of religion
difference between laws and morals characteristics
origins:
law- can trace back a source - common law
moral- difficult to trace back - bible / education
enforcement:
law- courts give appropriate sanctions- sentences and damages
moral- public disapproval
diversity of moral rules in a pluralistic society
Individuals have different or no religious beliefs – greater variety of moral values of individuals in society
An individual’s views and their right to express them is protected under Human Rights
Difficult to decide when the greater good of society should prevent an individual’s view which is considered as unacceptable from being expressed – e.g. terrorism, same-sex relationships, abortion etc.
There is an attempt to keep morality and religion out of politics and law due to the worry that religious fundamentalists will impose intolerant laws on all of society – like in some other countries
relationship between law and morality - do they coincide
Coincidence of Legal and Moral Rules (where they are similar)
Both set standards of behaviour of individuals in society
Both dictate how people are expected to behave
Both use similar language – right and wrong, duties, obligations, responsibilities
Legal rules are strengthened when they are the same as moral rules – enforcement is more easily justified and accepted by society
Some are same – e.g. murder (thou shall not kill) theft (thou shall not steal)
When Legal and Moral Rules Don’t Coincide
Some legal rules have no moral content – e.g. parking on a double yellow line in an empty town centre at 4am
Strict Liability – doesn’t seem to have a moral aspect
Mary moral rules are not part of the law – e.g. adultery – immoral but not illegal
relationship between law and morality - influences of law and morality on each other
Changing moral values can lead to developments in the law
E.g. rape in marriage – 1736 – held that “a man cannot rape his wife”. R v R (1991) – held that marital rape is a crime – law eventually caught up with morality
E.g. homosexuality – legalised in Sexual Offences Act 1967, equal marriage in Marriage (Same Sex Couples) Act 2013
A change in law can also lead to a change in morality
E.g. Discrimination laws have led to less racism and discrimination in society
legal enforcement of moral rules - whether and to what extent law should seek to enforce moral views
John Stuart Mill v Sir James Stephens
Mill – should limit interference of collective opinion and have individual independence. Harm Principle –individual should be allowed to harm himself – society should only intervene if his conduct harms others - limited for those who need protection from themselves (e.g. children, serious mental illness)
Stephens – disagrees with Mill – “There are acts of wickedness so gross and outrageous that they must be punished” – law should ban behaviour which is condemned by society
Hart-Devlin Debate
Wolfenden Report – advised on legalising homosexuality – said “there must be a realm of private morality and immorality which is…not the law’s business” – sparked the debate
Devlin – “without shared ideas on politics, morals and ethics, no society can exist” – society should defend itself against immorality – private immorality should be punished as it is harmful to society
Hart – society should not interfere with private moral/immoral conduct but can if there is a true threat to the cohesion of society – a genuine public nuisance
legal enforcement of moral rules examples
Tort Law
Vicarious Liability – no fault for employer (immoral), but they do take profit so should take costs (moral)?
Negligence – Duty of Care in Donoghue v Stevenson – neighbour principle – derived from the parable of the Good Samaritan – “love thy neighbour” (moral) but very limited claims for psychiatric harm or economic loss (immoral)
Occupiers’ Liability – Duty of care to trespassers – OLA 1984 gives trespassers a right to claim if injured while trespassing – shows humanity to trespassers (moral), but there have been a number of decisions restricting when a duty is owed (immoral)
Rylands v Fletcher – protects others (moral) but strict liability (immoral)
Contract Law
Offer and Acceptance - Moral principle that promises should be kept – basis of contract law
Exclusion Clauses – law protects consumers under CRA 2015 or UCTA 1977
Misrepresentation – law punishes fraudulent misrepresentations more harshly
laws and moral rules essay
- meaning of law
- meaning of morals
- differences bewteen characteristics of the both
- do they coincide- similarities?
- influences of each other
- legal enforcement of moral values - examples tort (VL, NEG, OLA, RVF)
