Section 5. The Nature Of Law Flashcards
What are the two main theories relating to the nature of law?
- Legal positivism
- Natural law
What is legal positivism?
The theory of law that is based on the idea that laws are valid where they are made by the recognised legislative power in the state and do not have to satisfy any higher authority
What was legal philosopher Jeremy Bentham’s views and actions relating to legal positivism?
- He was a utilitarian who wrote about what the law is, and a commentary on its merits or otherwise
- He believed that the philosophy of law should be concerned purely with what law is
What was legal philosopher John Austin’s views and actions relating to legal positivism?
Developed the command theory of law with its three main principles
What was legal philosopher Prof. H.L.A. Hart’s views and actions relating to legal positivism?
- He’s a legal positivist who believes in the separation of law and morality
- He argues that there are two categories of rules, primary and secondary
- These combine to form the basis of a workable legal system
What was legal philosopher Joseph Raz’s views and actions relating to legal positivism?
- He’s a legal positivist who argues that the identity and existence of a legal system may be tested by reference to three elements
- Law is autonomous - we can identify its content without resource to morality
What was legal philosopher Hans Kelsen’s views and actions relating to legal positivism?
- He’s a legal positivist who argues that morality is no part of law
How do natural lawyers differ from legal positivists?
- They reject legal positivism
- They believe that the validity of man-made laws depends upon the laws being compatible with a higher, moral authority
- Where laws don’t satisfy the requirements of this higher moral authority, the laws lack validity
What is natural law?
A moral theory of jurisprudence, which maintains that law should be based on morality and ethics
What was Thomas Aquinas’s view on natural law?
- Combined the philosophy of Aristotle with Christian theology, including the Bible and the Ten Commandments, and Catholic Church tradition
- He sets out four kinds of law
What was Lon Fuller’s view on natural law?
- Argued that law serves the purpose: ‘to achieve social order through subjecting peoples conduct to the guidance of general rules by which they may themselves orient their behaviour’
- If law is to achieve this purpose, it must satisfy eight principles which make up an inner morality of law
What is law?
Rules, some are legally enforceable, such as English law, a body of rules supported by sanctions administered by the state
What is a Rule?
Has been defined by Twining and Miers in How to Do Things with Rules (2014) as ‘a general norm mandating or guiding conduct’
What are the rules that are not based on law or morality (often referred to as laws)?
- E.g. The laws of football or the laws of chess
- They’re generally observed in the context in which they operate
- If these laws are broken, there’re sanctions in the context of the sport
- Many would view any form of cheating in a sport or game as wrong and possibly as immoral
What’s the idea on laws relating to the operation of physics and universe?
- Laws of physics or the universe - not in laws in the legal sense, just facts
- E.g. the three laws of thermodynamics
- They are immutable (they’re unchanging and cannot be broken)
What is morality?
- Defined as a system of values and conduct held by either a specific person or a society
- Originally defined by religious codes
What did sociologist Emile Durkheim say on moral values?
- Moral values change over time and according to Durkheim, owing to the increasing specialisation of labour, growing ethnic diversity and the fading influence of religion, it is nor harder to find a common morality in Britain
- Therefore, individual moral codes may now be more obviously different from those of society as a whole
What are the headings used to compare legal rules and moral rules?
- Their origins
- Their date of commencement
- Their enforcement
- Their ease of change
- Their certainty of content
- The way the rules are applied
Where did legal rules originate from?
They originate in common and statute law, conventions and EU law
Where did moral rules originate from?
Originated in Christian teachings in the Bible but are now more likely to originate from a combination of upbringing, education, peer views or one’s own conscience
What is legal rules date of commencement?
- They will generally have a start date, either an Act of Parliament or precedent in a court case.
- E.g. R v R (1991) would have had retrospective effect because that decision meant women who had been raped by the their husbands before that decision could now pursue them
What is moral rules date of commencement?
They cannot be pinpointed with a specific start date, but rather evolve over time
How are legal rules enforced?
They’re enforced by sanction in the courts
How are moral rules enforced?
- They’re harder to enforce, although somebody using rude language e.g. might be barred from somewhere like a sports or social club
- The enforcement of moral rules usually comes in the way of public disapproval
How easy is the change of legal and moral rules?
- Legal rules are relatively easy to change, it is hard to impose a change on moral rules
- Moral rules will usually change over time and the law will follow these changes, e.g. same-sex marriage
- Sometimes it works the other way round, e.g. decriminalisation of homosexuality in 1967-after which attitudes continued to remain largely hostile till at least the 1990s
How certain of content are legal and moral rules?
They’re usually quite certain in the words of a statute or judgement, whereas the content of moral rules can sometimes only be discovered through the exposure to them, such as in the home
Who are legal and moral rules applied to?
Legal rules apply to everybody, whereas some moral rules are accepted almost universally (e.g. cheating on a spouse) and others to some groups of people (disapproval of abortion)
What is a pluralist society?
One in which minority groups maintain their independent cultural traditions and all members are expected to tolerate each other’s beliefs even if they don’t agree with them
What occurs in a society when its multicultural and pluralist?
There will be some moral values where all share a collective view and others that relate to certain groups
What protects individuals views?
The European Convention on Human Rights
What moral values are possible for punishment by the state even though tenure protected by the ECHR?
Conscientious objection, when a member of the military removes himself from his duties on moral grounds - R v Lyons (2011)
How the European Court of human rights acted on Pluralism?
Owing to the fact that in some countries, religious fundamentals have managed to impose their moral values on the law, in pluralist Europe there is a resistance to this
What occurred in Open Door Counselling and Dublin Woman Well Centre v Ireland (1992)?
The European Court of Human Rights held that the Irish Supreme Court’s injunction restraining counselling agencies from providing pregnant women with information on abortion services violated Art.10 ECHR (Right to freedom of expression)
Does the moral views of society evolve over time?
- Yes, Moral view in society are evolving over time and the law usually, eventually follows suit: child protection, euthanasia/assisted dying, death penalty, same sex marriage, LGBT issues, equality of pay and the legislation of drugs.
- Sometimes attitudes change more slowly on these issues
How are the issues of the LGBT an example of the moral views in society changing over time?
- 1967 - Decriminalisation of homosexual activity in certain circumstances
- 2001 - Equalisation of the age of consent
- 2003 - Further repeal of certain other sexual offences
- 2004 - Civil partnership
- 2004 - Gender Recognition Act
- 2013 - Same sex marriage legalised
- 2017 - Posthumous pardon for men convicted of homosexual offences before 1967 - Alan Turing’s law
What is the difficulty in striking a balance between the moral views of the majority and the rights of minorities
Its deciding when the greater good of society as a whole should prevent the individuals views from being unacceptable
What is the relationship between law and morality?
- Legal rules and moral rules often overlap. When they do, legal rules are strengthened as their enforcement can be more readily justified
- However some legal rules don’t seem to have any moral justification
What is a ‘permissive society’?
- Arose following changing moral standards and led to significant changes in the law e.g. in the relaxation of censorship of publications that were formerly considered ‘obscene’.
- Developed in the 1960s when there was a lot of development to the law e.g. abortion act, etc.
What characteristics do legal and moral rules share?
- They are both concerned with setting standards
- They both dictate the way in which people are expected to behave
- They employ similar language: they distinguish between right and wrong, and they speak of duties, obligations and responsibilities
- Legal rules are strengthened when they’re the same as moral rules, and their enforcement can more readily be justified and is accepted by society
What can changing moral values lead to?
- Developments in the law
- Can be seen in the historical development of the law relating to rape within marriage
- In this way, the law eventually caught up with perceived public morality
What’re the two starting points of the debate on the question of ‘whether, and to what extent, the law should seek to enforce any particular moral views’?
- The law should act as the guardian of public morals and intervene to ensure the continuation of a dominant morality within the state
- Or, that individuals should be left free to decide their own morality
Who was John Stuart Mill?
- Writer of ‘On liberty’
- 19th century liberal philosopher
What was J S Mill’s approach on the question of ‘whether, and to what extent, the law should seek to enforce any particular moral views’?
- ‘Harm principle’ theory - that individuals should be free to harm themselves, if thats what they want to do, but that society should only stop them if they wish to harm others
- Doesn’t apply to children as they are more vulnerable
- The idea that individuals should be free to do what they like. If harm is done however, it should not outweigh the harm denying individual liberty
Who was J S Mill’s approach opposed by and why?
- Opposed by the judge, Sir James Stephen
- Because there’s no distinction between acts that harm others and acts that harm yourself. Some acts are so grossly wicked
What were the problems with J S Mill’s approach?
- It is not clear what constitutes ‘harm’, physical or otherwise; does it include e.g. porn, drug-taking, etc.
- Not clear whether an embryo or a foetus falls within the definition of other members of society
- Some of the laws implemented relating to victimless crimes produce secondary crime, and all create new criminals, many of whom are otherside law-abiding citizens and people in authority
What is Professor Harts side of the Hart-Devlin debate?
- The law has a role in preserving public order and decency but should not intervene in the private life of citizens
- Moral standards should only be enforced according to Hart, when they are creating a genuine public nuisance
What is Lord Patrick Devlin side of the Hart-Devlin debate?
- Law Lord in the 1950s/60s
- Book, ‘Enforcement of morals’ - “without shared ideas on politics, morals and ethics, no society can exist”
- Whilst personal preferences, likes and dislikes shouldn’t form the basis for decisions about moral conduct, there should be an objective test to see where boundaries should be drawn
- This is the immoral conduct that should be prohibited by law
What are the issues reflecting the Hart-Devlin debate and the relationship between law and morality?
- Judges and Parliament are often forced to confront complex moral issues. Parliament can choose whether to legislate but judges have no choice
- Judges often have to confront ‘new’ issues affecting public morality e.g. Shaw v DPP (1962)
- The overlap with criminal law, morality and human rights e.g. R v G (2008)
- In recent times, the courts have produced conflicting views on the relationship between law and morality e.g. Otkritie International Investment Management Ltd v Urumov (2013)
- Situation is conflicted and whether one talks of ‘morals’ or ‘values’, judges have to apply themselves to real cases with real facts and real people and reflect the situation as they perceive it as to any moral or values issues
What does justice mean?
It is a concept that can be described simply by a synonym such as fairness, equality or even-handedness
What’re the 3 types of justice?
- Substantive justice
- Procedural justice
- Distributive justice
What is Substantive justice?
How the rules work in various aspects of law, criminal, tort etc.
What is Procedural justice?
- The idea of fairness in the processes that resolve disputes and allocate resources
- One aspect of procedural justice is related to discussions of the administration of justice and legal proceedings
What is Distributive justice?
- Concerned with the fair allocation of resources among different areas of society
- Can be seen through the law on equal pay and minimum wages, taxation and the benefits system and more
What is corrective justice?
When the law restores the imbalance that has occurred between two individuals or an individual and the state
Which philosopher made the first attempt at defining justice and what did he define it as?
- Plato (4th Century BC)
- Justice is an overarching virtue. Every issue regarded as ethical comes under it
Who continued Plato’s work on the idea of justice and what was their view?
- Aristotle (Plato’s pupil)
- His idea was for the need to balance the extremes and have proportionality
- E.g. You’re free to enter into any contract you want (freedom of contract), but this should be balanced by the rights of the consumer
Who continued in the attempts to define justice in the thirteenth century and what was his personal view?
- Thomas Aquinas
- Justice should govern our relationships with each other. It is for the common good that we deal with people as they deserve
What philosophers expounded the view of distributive justice?
- Aristotle
- Thomas Aquinas
- Karl Marx
- Chaim Perelman
What was Aristotle’s view on distributive justice?
- He said that a just state will award wealth based on their merit, virtue and what each person puts into society.
- Rewarding on need would be unjust as it would simply reward those who were either lazy or contributed nothing
What was Thomas Aquinas view on distributive justice?
Argued that rewards should be distributed according to merit, rank and need. There should be fair allocation and these should be proportional
What was Karl Marx view on distributive justice?
- (The founder of communism)
- Stated “from each according to his ability, to each according to his need”
- In other words, workers will maximise their abilities to contribute to the commonwealth and each will receive according to his need, irrespective of the contribution they have made to the above
What was Chaim Perelman’s view on distributive justice?
- He produced a study of justice, entitled De la Justice
- He concluded that justice cannot be studied logically, as each attempt to define it is based upon a person’s subjective values
- He saw six possible models of distributive justice
What is Utilitarianism?
- A philosophy that developed in the 19th century from the writings of Jeremy Bentham and John Stuart Mill
- The concept that the more an action increases overall happiness, the more valuable it is; and the more it decreases happiness, the more reprehensible
Who was Jeremy Bentham?
A social reformer who developed the theory known as utilitarianism
What are utilitarians only interest in their view?
- Only interested in the outcome of an act, regardless of the act itself
- Maximising happiness is the object of justice
What are one of the main criticisms of utilitarianism?
The interest of an individual may be sacrificed for greater community happiness e.g. The investigatory Powers Act 2016
What is The investigatory Powers Act 2016?
- It sets out and in limited respects expands the electronic surveillance powers of the UK Intelligence Community and police
- The act has since been ruled incompatible with European Law
What where John Stuart Mill’s views on utilitarianism?
- Supported the basic principles of utilitarianism put forward by Bentham
- Argued however that the actions taken to promote happiness should rely on the quality of that happiness rather than just the quantity
- As well as utilitarianism, respect for people, property and the need to deal with each other impartiality were also needed for justice
- Punishment should only ever be inflicted where it brings a benefit, such as in public order
How has utilitarianism developed since Bentham and Mill?
- The rightness of an act is judged in isolation to see whether it adds to, or subtracts from, the sum of human happiness
- The rightness of an action is judged according to whether the sum of human happiness would be increased if everyone acted in the same way
What is social justice?
The equal access to wealth, opportunities, and privileges within a society
What did John Rawls do in his book ‘ A Theory of Justice (1971’ relating to social justice?
Put forward his thought experiment ‘the well of ignorance’
What’re the two basic principles of justice John Rawls argued would be evident
- Each person has the right to all the freedoms and liberties
- Social and economic inequalities may exist but only where they benefit the least advantaged members of society, and provided all offices and positions are open to everyone
What did Robert Nozick do in his book ‘Anarchy, State and Utopia (1974)’?
Developed an entitlement theory of justice, which consisted three principles
What were the three principles stated under Nozick’s entitlement theory of justice?
- A principle of justice in acquisition, dealing with how property is initially acquired
- A principle of justice in transfer, dealing with how property can change hands
- A principle of rectification of injustice, dealing with injustices arising from the acquisition or transfer of property under the two principles above
What are Robert Nozick’s views on social justice?
- Whilst believing that the individual should be protected against fraud, theft, force or the enforcing of contractual obligations, placed no limits on property ownership
- He believed that the individual, rather than the state should own property
How does Rawls views on social justice differ to Nozick’s?
Rawls argued that inequalities should only be allowed to exist where they benefit the most disadvantaged in society
What is procedural justice?
Refers to making and implementing decisions according to fair processes, so the main focus here will be on legal aid
What’re the problems with the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012 (relating to procedural justice)?
- Massive budget cuts to legal aid
- No more advice on welfare benefits, employment, housing (except homeless cases), immigration (except asylum) and family (except domestic abuse)
- Whilst everybody, regardless of means is entitled to legal aid on arrest, after being charged they are means-tested
- If found guilty, they may have to pay legal costs
- Constantly changing rules, legal aid ‘deserts’
- Very little incentive for legal aid lawyers (average salary just £25,000 in 2013)
- Possibility then of miscarriages of justice
What does substantive law refer to?
- This refers to the fact that the law in itself needs to be just
- Mandatory life sentences - while most people view these as just (indeed most people support a return of the death penalty!), there is little room for manoeuvre
- Some murders are ‘worse’ than others, yet the mandatory life sentence doesn’t take this into account. Not proportional
What’re the defences under the substantive law?
- The defences: loss of control, diminished responsibility, survivors of suicide pacts, automatism and self-defence are all generally accepted as just defences to premeditated killing
- Duress has no longer been available since 1987. E.g. Howe (1987)
What has the law commission proposed on the defence of duress?
They suggested adding duress as a defence that would attract a conviction for second degree murder, but in 2016, the government rejected the idea of US-style degrees of murder
What are the two things that corrective justice relate to?
Sanctions and damages
How does corrective justice work in criminal cases?
The judge will consider both aggravating and mitigating factors before passing what he considers a just sentence
How does corrective justice work in tort negligence cases?
The aim is to return the claimant to the position he was in before the tort was committed, however it is also just to assess contributory negligence and deducting any of that from the award the claimant receives - Jebson v Ministry of Defence (2000)
How does corrective justice work in contract cases?
Justice is served on the basis of the loss of bargain. Losses must be reasonably within the contemplation of the parties - Victoria Laundry v Newman (1949)
How is justice perceived in the criminal process?
- The Jury can decide on its own view of justice and has total freedom to so ignoring advice from the judge e.g. Ponting (1985)
- The dilemma over the use of evidence in criminal trials is also contentious e.g. Jeffery v Black (1978)
How does appeals work in criminal cases?
- Appeals can be granted to the defendant either against conviction or on a point of law
- The prosecution can appeal against what they might consider an unduly lenient sentence
- The Attorney-General can appeal to the Court of Appeal where they wish to question the direction that has led to an appeals
What is the overall view on appeals taking into consideration the idea of justice?
Whereas appeals are seen as achieving justice however, it may not always feel that way for the victim
What do miscarriages of justice lead to?
Can sometimes lead people to lose faith in the criminal justice system
What is the Criminal Cases Review Commission (CCRC)?
- Was established due to famous cases e.g. the Birmingham Six as people were serving prison sentences for crimes they are not guilty of
- Their role is to review the cases of those it feels have been wrongly convicted of criminal offences, or unfairly sentenced (where suspected miscarriages of justice have occurred)
What does the rules of natural justice state?
- (A) The court must be impartial with judges having no personal interest in the case
- (B) Each party must have a fair opportunity to put their case
What case resulted in the first rule of the rules of natural justice first time coming into question?
The General Pinochet case (1988)
What case showed the second rule of the rules of natural justice come into question?
Ridge v Baldwin (1964)
Under contract law, how does the formation of contract produce ‘just’ outcomes?
Justice is achieved in business disputes when the court has to consider what honest, reasonable and sensible business people would expect
Under contract law, how do exclusion clauses produce ‘just’ outcomes?
Whilst parties have the right to limit liability by using exclusion clauses, the Unfair Contract Terms Act 1977 aims to protect weaker parties from exploitation and the Consumer Rights Act 2015 sets out rights and remedies in consumer transactions
Under contract law, how do penalty clauses produce ‘just’ outcomes?
- Under UK law if a penalty clause is judged excessive, it can be declared invalid
- Penalty clauses must be of a reasonable sum and/or judged to be protecting a valid commercial interest - ParkingEye (2015)
Under contract law, how do third party rights produce ‘just’ outcomes?
- The Contracts (Rights of Third Parties) Act 1999 attempts to correct the injustice preventing third parties from making a claim
- The only problem is that it only allows this when expressly provided for in the contract and most commercial contracts these days now expressly exclude third party claims
Under contract law, how do frustrated contracts produce ‘just’ outcomes?
- The Law Reform (Frustrated Contracts) Act 1943 enabled the courts to order a just sum to be paid where either expenses have been incurred or a valuable benefit obtained in the event of a frustrated contract
- Despite this, the courts have been reluctant to find frustration of contract - Armchair Answercall (2016)
Under tort law, how does duty and breach of negligence produce ‘just’ outcomes?
- Just decision in Hill v Chief Constable of West Yorkshire (1988)
- The police cannot possibly owe a duty of care to every potential victim of crime, but fair, just and reasonable to owe a duty of care where a loss has occurred as a result of their negligence
Under tort law, how does occupiers liability produce ‘just’ outcomes?
- Robert Addie & Sons Ltd v Dumbreck (1929) saw no duty to child trespassers
- British Railways Board v Herrington (1972) can be seen as just however as the injured boy was compensated
- Trespassers now have rights since 1984
Under tort law, how does strict liability produce ‘just’ outcomes?
- It is just that claims can be made, despite the defendant not knowing - Rylands v Fletcher (1868)
- Since the Consumer Protection Act 1984, there are now strict liability provisions to claim for personal injury
What is society?
- Society is a group of people with common territory, interaction and culture
- Doesn’t have to follow formal boundaries, e.g. The Republic of Ireland
- Members of a society have to come into contract with each other but geographic distance and language barriers can divide societies within a country
What is Pluralism?
A pluralistic society is one in which there are many different cultures and traditions, that all co-exist
What does pluralism allow?
Members of minority groups to maintain their own independent cultural traditions and believes that the existence of these different traditions is a good thing
What type of society is the UK?
A multicultural society meaning that no one group is considered more influential than other
For rule of law to exist without a transparent legal system, what is required?
There has to be a clear set of laws that are easily accessible, a strong enforcement system and an independent judiciary to protect people from the state, individuals and other organisations
What’re the 8 principles Lord Bingham set out for the role of law in society?
- The state must abide by domestic and international law
- People should only be punished for crimes laid down in law
- Questions on the infringement of rights must be subject to the law, not discretion
- The law should be accessible and open to public scrutiny
- All people should be treated equally
- Respect human rights
- Courts to be accessible, affordable and cases should be heard without delay
- Means to be provided without cost or delay to resolved disputes
What’re the 4 primary roles that law plays in society?
- Protect people from harm
- Ensure a common good (education, healthcare etc)
- Settle disputes
- Persuade people to do the right thing
Where the law shapes society and society can shape the law, where does the problem start?
When perceived threats from small sectors of society are blown out of proportion, usually by the media
What does Stanley Cohen point out in his book ‘Folks Devils and Moral Panics’ (1972)?
‘Moral panic’ tends to set in when a group of people are acting in a way that society is not used to and the media tends to overreact.
What have knee jerk reactions done for society?
- Sarah’s Law
- The Dangerous Dogs Act (1991)
What is social control?
The way in which our behaviour, thoughts and appearance is regulated by the rules, norms, laws and social structures in our society
What is an example of social control?
Some rules of conduct are encouraged, but not legally enforceable, like politeness, whereas others are mandatory, like not killing somebody
What were the social-ethical principles, with a three-fold purpose formulated by Rosco Pound in his book ‘Social control through law’ (1942)?
- To identify and explain human claims, demands or interests of a social order
- To express what the majority want the law to do
- To guide the courts in applying the law
Why is social control necessary?
To maintain social order
Why is social control necessary to maintain social order?
- Because then society will function without chaos or continual disruption
- Ensures that only the values and norms of society are acceptable
- Provides predictability
- Makes society possible by policing the boundaries and dealing with deviant behaviours
What’re the consequences of a breakdown of social order?
- Lawlessness
- Descent into anarchy
How does social control fail?
Where the law is weak or enforced without any degree of consistency
What is the law on assisted suicide?
- Prosecution have to be measured up as to whether they are in the public interest
- Debbie Purdy case (2009)
What is an example in substantive law and procedure showing social control through civil and criminal law?
- The balance between the need for householders to protect themselves from intruders and the use of justifiable force
- Advice from the CPS and police in a statement ‘Householders and the Use of Force Against Intruders’ in 2013
- Force must be reasonable and not disproportionate
How is social control present in criminal law under consent?
Where the victim consents to an assault, the defendant may escape liability
How is social control present in contract law?
Law controls the shift in the law as stated by judges with respect to third party rights in contract over the years
How is social control present in tort law?
- The question of social control is addressed in finding an appropriate balance between the rights of the claimant and defendant
- E.g. Bolton v Stone (1951)
What is the Consensus theory?
- In order to achieve a fairer social system, there needs to be cooperation and compromise
- Society works best when there is agreement about appropriate behaviour and standards
- Institutions that reward positive behaviour and punish negative make a fair social, economic and political system
- Durkheim’s theory is that consensus exists within society
What is the Conflict theory?
- Perpetual conflict between groups owing to competition for limited resources.
- Marx, society is in conflict because the wealthy and powerful use any means possible to keep what they have by oppressing the poor and powerless
What is the Labelling theory?
- Most people commit criminal or deviant acts but only some are caught and punished
- Although most of us commit some criminal or deviant acts, we regard other acts as truly criminal and stigmatise those who do them
- E.g. stereotyping of BME groups, statistics on stop and search
What were the recommendations and findings from a House of Commons Select Committee in 2016 on the question of ‘are magistrates representative?’?
- Steps to increase diversity amongst magistrates. Whilst 53% are female, there are some benches with no BME magistrates
- Rebalance the age profile; difficult because of employment commitments. Over half are within ten years of mandatory retirement age. 4% are under 40
- 4% are disabled (16% of working adults are) and 45% are over state pension age
- Whilst most magistrates are doubtless very well informed on the profile of their local communities and Family court magistrates usually have excellent training, the main problem here is with perception
- If one of the hallmarks of English justice is to be tried by your peers, if magistrates don’t reflect what their peers are like, then that is a problem
Is access to justice present in society?
- Yes
- Regardless of the situation, everybody in society is entitled to legal representation, yet there have been problems here to
- E.g. R v Samuel (1988)
What is legal realism?
The law should focus mainly on what is practised in the courts, law offices and police stations rather than acts of parliament and statute law
Who is an example of an legal realist?
Oliver Wendell Holmes
What are legal realists most interested in?
In the law where it stands in court judgements, rather than society and do not consider acts of parliament, as they usually only uphold judge-made common law precedents anyway
What does realism denounce?
Traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case
What do legal realist define law as?
A generalised prediction of what the courts will do and believe the certainty of law is a myth
With the view from legal realists, that the certainty of law is a myth, what does this view result in?
Absurdity because the judge decides what rights the parties are going to have in cases in an attempt to balance the different interests in a case
What was Rudolf Von Gehring’s theory on how best to use the law of social control to balance the interests of those in a society?
Believed that law is a means of ordering a society in which there are many competing interests that require regulation
What was Roscoe Pound’s theory on how best to use the law of social control to balance the interests of those in a society?
Claims or demands or desires seeking legal recognition can be classified in one of three ways - individual interests, public interests and social interests
What was Wesley Hohfeld’s theory on how best to use the law of social control to balance the interests of those in a society?
Distinguished between rights and liberties. He categorised relationships as jural correlatives and jural opposites
