Section 5. The Nature Of Law

Question 1

What are the two main theories relating to the nature of law?

Answer 1

• Legal positivism
• Natural law

Question 2

What is legal positivism?

Answer 2

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

Question 3

What was legal philosopher Jeremy Bentham’s views and actions relating to legal positivism?

Answer 3

• 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

Question 4

What was legal philosopher John Austin’s views and actions relating to legal positivism?

Answer 4

Developed the command theory of law with its three main principles

Question 5

What was legal philosopher Prof. H.L.A. Hart’s views and actions relating to legal positivism?

Answer 5

• 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

Question 6

What was legal philosopher Joseph Raz’s views and actions relating to legal positivism?

Answer 6

• 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

Question 7

What was legal philosopher Hans Kelsen’s views and actions relating to legal positivism?

Answer 7

• He’s a legal positivist who argues that morality is no part of law

Question 8

How do natural lawyers differ from legal positivists?

Answer 8

• 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

Question 9

What is natural law?

Answer 9

A moral theory of jurisprudence, which maintains that law should be based on morality and ethics

Question 10

What was Thomas Aquinas’s view on natural law?

Answer 10

• 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

Question 11

What was Lon Fuller’s view on natural law?

Answer 11

• 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

Question 12

What is law?

Answer 12

Rules, some are legally enforceable, such as English law, a body of rules supported by sanctions administered by the state

Question 13

What is a Rule?

Answer 13

Has been defined by Twining and Miers in How to Do Things with Rules (2014) as ‘a general norm mandating or guiding conduct’

Question 14

What are the rules that are not based on law or morality (often referred to as laws)?

Answer 14

• 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

Question 15

What’s the idea on laws relating to the operation of physics and universe?

Answer 15

• 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)

Question 16

What is morality?

Answer 16

• Defined as a system of values and conduct held by either a specific person or a society
• Originally defined by religious codes

Question 17

What did sociologist Emile Durkheim say on moral values?

Answer 17

• 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

Question 18

What are the headings used to compare legal rules and moral rules?

Answer 18

• Their origins
• Their date of commencement
• Their enforcement
• Their ease of change
• Their certainty of content
• The way the rules are applied

Question 19

Where did legal rules originate from?

Answer 19

They originate in common and statute law, conventions and EU law

Question 20

Where did moral rules originate from?

Answer 20

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

Question 21

What is legal rules date of commencement?

Answer 21

• 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

Question 22

What is moral rules date of commencement?

Answer 22

They cannot be pinpointed with a specific start date, but rather evolve over time

Question 23

How are legal rules enforced?

Answer 23

They’re enforced by sanction in the courts

Question 24

How are moral rules enforced?

Answer 24

• 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

Question 25

How easy is the change of legal and moral rules?

Answer 25

• 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

Question 26

How certain of content are legal and moral rules?

Answer 26

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

Question 27

Who are legal and moral rules applied to?

Answer 27

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)

Question 28

What is a pluralist society?

Answer 28

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

Question 29

What occurs in a society when its multicultural and pluralist?

Answer 29

There will be some moral values where all share a collective view and others that relate to certain groups

Question 30

What protects individuals views?

Answer 30

The European Convention on Human Rights

Question 31

What moral values are possible for punishment by the state even though tenure protected by the ECHR?

Answer 31

Conscientious objection, when a member of the military removes himself from his duties on moral grounds - R v Lyons (2011)

Question 32

How the European Court of human rights acted on Pluralism?

Answer 32

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

Question 33

What occurred in Open Door Counselling and Dublin Woman Well Centre v Ireland (1992)?

Answer 33

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)

Question 34

Does the moral views of society evolve over time?

Answer 34

• 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

Question 35

How are the issues of the LGBT an example of the moral views in society changing over time?

Answer 35

• 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

Question 36

What is the difficulty in striking a balance between the moral views of the majority and the rights of minorities

Answer 36

Its deciding when the greater good of society as a whole should prevent the individuals views from being unacceptable

Question 37

What is the relationship between law and morality?

Answer 37

• 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

Question 38

What is a ‘permissive society’?

Answer 38

• 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.

Question 39

What characteristics do legal and moral rules share?

Answer 39

• 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

Question 40

What can changing moral values lead to?

Answer 40

• 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

Question 41

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’?

Answer 41

• 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

Question 42

Who was John Stuart Mill?

Answer 42

• Writer of ‘On liberty’
• 19th century liberal philosopher

Question 43

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’?

Answer 43

• ‘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

Question 44

Who was J S Mill’s approach opposed by and why?

Answer 44

• 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

Question 45

What were the problems with J S Mill’s approach?

Answer 45

• 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

Question 46

What is Professor Harts side of the Hart-Devlin debate?

Answer 46

• 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

Question 47

What is Lord Patrick Devlin side of the Hart-Devlin debate?

Answer 47

• 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

Question 48

What are the issues reflecting the Hart-Devlin debate and the relationship between law and morality?

Answer 48

• 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

Question 49

What does justice mean?

Answer 49

It is a concept that can be described simply by a synonym such as fairness, equality or even-handedness

Question 50

What’re the 3 types of justice?

Answer 50

• Substantive justice
• Procedural justice
• Distributive justice

Question 51

What is Substantive justice?

Answer 51

How the rules work in various aspects of law, criminal, tort etc.

Question 52

What is Procedural justice?

Answer 52

• 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

Question 53

What is Distributive justice?

Answer 53

• 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

Question 54

What is corrective justice?

Answer 54

When the law restores the imbalance that has occurred between two individuals or an individual and the state

Question 55

Which philosopher made the first attempt at defining justice and what did he define it as?

Answer 55

• Plato (4th Century BC)
• Justice is an overarching virtue. Every issue regarded as ethical comes under it

Question 56

Who continued Plato’s work on the idea of justice and what was their view?

Answer 56

• 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

Question 57

Who continued in the attempts to define justice in the thirteenth century and what was his personal view?

Answer 57

• Thomas Aquinas
• Justice should govern our relationships with each other. It is for the common good that we deal with people as they deserve

Question 58

What philosophers expounded the view of distributive justice?

Answer 58

• Aristotle
• Thomas Aquinas
• Karl Marx
• Chaim Perelman

Question 59

What was Aristotle’s view on distributive justice?

Answer 59

• 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

Question 60

What was Thomas Aquinas view on distributive justice?

Answer 60

Argued that rewards should be distributed according to merit, rank and need. There should be fair allocation and these should be proportional

Question 61

What was Karl Marx view on distributive justice?

Answer 61

• (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

Question 62

What was Chaim Perelman’s view on distributive justice?

Answer 62

• 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

Question 63

What is Utilitarianism?

Answer 63

• 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

Question 64

Who was Jeremy Bentham?

Answer 64

A social reformer who developed the theory known as utilitarianism

Question 65

What are utilitarians only interest in their view?

Answer 65

• Only interested in the outcome of an act, regardless of the act itself
• Maximising happiness is the object of justice

Question 66

What are one of the main criticisms of utilitarianism?

Answer 66

The interest of an individual may be sacrificed for greater community happiness e.g. The investigatory Powers Act 2016

Question 67

What is The investigatory Powers Act 2016?

Answer 67

• 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

Question 68

What where John Stuart Mill’s views on utilitarianism?

Answer 68

• 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

Question 69

How has utilitarianism developed since Bentham and Mill?

Answer 69

• 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

Question 70

What is social justice?

Answer 70

The equal access to wealth, opportunities, and privileges within a society

Question 71

What did John Rawls do in his book ‘ A Theory of Justice (1971’ relating to social justice?

Answer 71

Put forward his thought experiment ‘the well of ignorance’

Question 72

What’re the two basic principles of justice John Rawls argued would be evident

Answer 72

• 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

Question 73

What did Robert Nozick do in his book ‘Anarchy, State and Utopia (1974)’?

Answer 73

Developed an entitlement theory of justice, which consisted three principles

Question 74

What were the three principles stated under Nozick’s entitlement theory of justice?

Answer 74

• 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

Question 75

What are Robert Nozick’s views on social justice?

Answer 75

• 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

Question 76

How does Rawls views on social justice differ to Nozick’s?

Answer 76

Rawls argued that inequalities should only be allowed to exist where they benefit the most disadvantaged in society

Question 77

What is procedural justice?

Answer 77

Refers to making and implementing decisions according to fair processes, so the main focus here will be on legal aid

Question 78

What’re the problems with the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012 (relating to procedural justice)?

Answer 78

• 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

Question 79

What does substantive law refer to?

Answer 79

• 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

Question 80

What’re the defences under the substantive law?

Answer 80

• 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)

Question 81

What has the law commission proposed on the defence of duress?

Answer 81

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

Question 82

What are the two things that corrective justice relate to?

Answer 82

Sanctions and damages

Question 83

How does corrective justice work in criminal cases?

Answer 83

The judge will consider both aggravating and mitigating factors before passing what he considers a just sentence

Question 84

How does corrective justice work in tort negligence cases?

Answer 84

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)

Question 85

How does corrective justice work in contract cases?

Answer 85

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)

Question 86

How is justice perceived in the criminal process?

Answer 86

• 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)

Question 87

How does appeals work in criminal cases?

Answer 87

• 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

Question 88

What is the overall view on appeals taking into consideration the idea of justice?

Answer 88

Whereas appeals are seen as achieving justice however, it may not always feel that way for the victim

Question 89

What do miscarriages of justice lead to?

Answer 89

Can sometimes lead people to lose faith in the criminal justice system

Question 90

What is the Criminal Cases Review Commission (CCRC)?

Answer 90

• 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)

Question 91

What does the rules of natural justice state?

Answer 91

• (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

Question 92

What case resulted in the first rule of the rules of natural justice first time coming into question?

Answer 92

The General Pinochet case (1988)

Question 93

What case showed the second rule of the rules of natural justice come into question?

Answer 93

Ridge v Baldwin (1964)

Question 94

Under contract law, how does the formation of contract produce ‘just’ outcomes?

Answer 94

Justice is achieved in business disputes when the court has to consider what honest, reasonable and sensible business people would expect

Question 95

Under contract law, how do exclusion clauses produce ‘just’ outcomes?

Answer 95

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

Question 96

Under contract law, how do penalty clauses produce ‘just’ outcomes?

Answer 96

• 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)

Question 97

Under contract law, how do third party rights produce ‘just’ outcomes?

Answer 97

• 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

Question 98

Under contract law, how do frustrated contracts produce ‘just’ outcomes?

Answer 98

• 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)

Question 99

Under tort law, how does duty and breach of negligence produce ‘just’ outcomes?

Answer 99

• 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

Question 100

Under tort law, how does occupiers liability produce ‘just’ outcomes?

Answer 100

• 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

Question 101

Under tort law, how does strict liability produce ‘just’ outcomes?

Answer 101

• 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

Question 102

What is society?

Answer 102

• 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

Question 103

What is Pluralism?

Answer 103

A pluralistic society is one in which there are many different cultures and traditions, that all co-exist

Question 104

What does pluralism allow?

Answer 104

Members of minority groups to maintain their own independent cultural traditions and believes that the existence of these different traditions is a good thing

Question 105

What type of society is the UK?

Answer 105

A multicultural society meaning that no one group is considered more influential than other

Question 106

For rule of law to exist without a transparent legal system, what is required?

Answer 106

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

Question 107

What’re the 8 principles Lord Bingham set out for the role of law in society?

Answer 107

1. The state must abide by domestic and international law
2. People should only be punished for crimes laid down in law
3. Questions on the infringement of rights must be subject to the law, not discretion
4. The law should be accessible and open to public scrutiny
5. All people should be treated equally
6. Respect human rights
7. Courts to be accessible, affordable and cases should be heard without delay
8. Means to be provided without cost or delay to resolved disputes

Question 108

What’re the 4 primary roles that law plays in society?

Answer 108

• Protect people from harm
• Ensure a common good (education, healthcare etc)
• Settle disputes
• Persuade people to do the right thing

Question 109

Where the law shapes society and society can shape the law, where does the problem start?

Answer 109

When perceived threats from small sectors of society are blown out of proportion, usually by the media

Question 110

What does Stanley Cohen point out in his book ‘Folks Devils and Moral Panics’ (1972)?

Answer 110

‘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.

Question 111

What have knee jerk reactions done for society?

Answer 111

• Sarah’s Law
• The Dangerous Dogs Act (1991)

Question 112

What is social control?

Answer 112

The way in which our behaviour, thoughts and appearance is regulated by the rules, norms, laws and social structures in our society

Question 113

What is an example of social control?

Answer 113

Some rules of conduct are encouraged, but not legally enforceable, like politeness, whereas others are mandatory, like not killing somebody

Question 114

What were the social-ethical principles, with a three-fold purpose formulated by Rosco Pound in his book ‘Social control through law’ (1942)?

Answer 114

1. To identify and explain human claims, demands or interests of a social order
2. To express what the majority want the law to do
3. To guide the courts in applying the law

Question 115

Why is social control necessary?

Answer 115

To maintain social order

Question 116

Why is social control necessary to maintain social order?

Answer 116

• 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

Question 117

What’re the consequences of a breakdown of social order?

Answer 117

• Lawlessness
• Descent into anarchy

Question 118

How does social control fail?

Answer 118

Where the law is weak or enforced without any degree of consistency

Question 119

What is the law on assisted suicide?

Answer 119

• Prosecution have to be measured up as to whether they are in the public interest
• Debbie Purdy case (2009)

Question 120

What is an example in substantive law and procedure showing social control through civil and criminal law?

Answer 120

• 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

Question 121

How is social control present in criminal law under consent?

Answer 121

Where the victim consents to an assault, the defendant may escape liability

Question 122

How is social control present in contract law?

Answer 122

Law controls the shift in the law as stated by judges with respect to third party rights in contract over the years

Question 123

How is social control present in tort law?

Answer 123

• 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)

Question 124

What is the Consensus theory?

Answer 124

• 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

Question 125

What is the Conflict theory?

Answer 125

• 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

Question 126

What is the Labelling theory?

Answer 126

• 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

Question 127

What were the recommendations and findings from a House of Commons Select Committee in 2016 on the question of ‘are magistrates representative?’?

Answer 127

• 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

Question 128

Is access to justice present in society?

Answer 128

• 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)

Question 129

What is legal realism?

Answer 129

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

Question 130

Who is an example of an legal realist?

Answer 130

Oliver Wendell Holmes

Question 131

What are legal realists most interested in?

Answer 131

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

Question 132

What does realism denounce?

Answer 132

Traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case

Question 133

What do legal realist define law as?

Answer 133

A generalised prediction of what the courts will do and believe the certainty of law is a myth

Question 134

With the view from legal realists, that the certainty of law is a myth, what does this view result in?

Answer 134

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

Question 135

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?

Answer 135

Believed that law is a means of ordering a society in which there are many competing interests that require regulation

Question 136

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?

Answer 136

Claims or demands or desires seeking legal recognition can be classified in one of three ways - individual interests, public interests and social interests

Question 137

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?

Answer 137

Distinguished between rights and liberties. He categorised relationships as jural correlatives and jural opposites