The Nature Of Law Flashcards
Why are rules obeyed?
- Carry a sense of moral obligation
- The rule is reasonable and relevant
- A penalty may be imposed if the rule is broken
What are morals?
Name examples.
- Morality is based on what people believe to be acceptable.
- Adultery and abortion
What happened in the case of Gillick v West Norfolk and Wisbech AHA?
-a mother bought a case arguing a doctor has no right to prescribe contraceptives to her daughter.
- she lost. The HL held that children under 16 has the right to make their own decisions on treatments
Name the distinctions between morals and law.
- moral rules develop over time whereas law can be made overnight
-morals are ought to be obeyed and laws must be obeyed - morals are enforced through the disapproval of society and laws are enforced through the courts.
What is the overlap between law and morals?
-both are based on rules or norms.
- crimes such as murder, robbery and rape are generally held to be both immoral and illegal
What is natural law?
- it is based on morality.
- a supporter of natural law sees law as coming from a higher source
What is positivsim?
-looks more scientifically the law.
What did Professor Hart believe?
- law and morality should be separate.
- the law should not be used to enforce morality.
- the state should not intervene to restrict the freedom of the individual unless the conduct could harm others.
- he was a positivist
What did Lord Devlin believe?
- law and morality are inseparable
- the law should intervene to support morality
- Immoral acts could undermine society
- therefore judges should enforce moral rules to protect society
What was The Hart-Devlin Debate about?
What did Professor Hart and Devlin believe?
In 1957 the Wolfenden Commmittee recommended that prostitution and homosexuality in private should no longer be criminal.
- Hart agreed
- Lord Devlin disagreed because he believed it was immoral
What is Pluralism?
defined as a from of society in which the members of minority groups maintain their independent cultural traditions
What does a pluralist believe?
- believes in the existence of different types of people and beliefs.
What is society?
- a group of people who share common territory, interaction and culture.
What are Bingham’s 4 primary roles in society?
- to protect people from harm
- to ensure a common good e.g education/NHS
- to settle agreements and disputes
- to persuade people to do the right thing
What did Cohen state?
What is an example of this?
“Media helps exaggerate the problem, rather than tackling it. This allows the issue to grow”
stereotypes surrounding knife crime but actually there is a higher amount of white stabbings compared to black on black crime.
What are three social ethnic principles of what social control does which was formulated by Pound.
- Identify and explain human claims, demands, interests of a social order
- Express what majority wants the law to do
- Guide the courts in applying the law.
What did Durkheim believe?
that the importance of a presence of consensus helped and provided people with an understanding or what is acceptable and what is not
What did the conflict theory state?
- claim that society is in a state of conflict due to the competition of limited resources.
- social order is maintained through dominance and power.
- those with wealth try and hold onto it, including the suppression of the poor which argues against consensus and Durkheim.
What is the labelling theory?
What is an A02 which would back this.
when most people commit deviant and criminal acts but only some are punished and caught for it which is rooted in discrimination and stereotypes.
- stop and search has fallen across all ethnic groups, but searches on white people has dropped compared to BME’s.
What does the consensus theory state?
- holds a particular economical and political system is a fair system, and that social changes should be made within social institutions provided by it. i.e politics and economic is fair for all in society.
What did the House of Commons Select Committee report 2016 state?
suggested that they must increase diversity in the magistrates and rebalance the age profile.
What is legal realism?
the view that we should understand that the law is practised in court rather than it is set out in books or statues.
What did Holmes state?
“if the law were merely as system of rules, we should not need lawyers, as judges would simply add the rules”
(so we need lawyers to look at the complexity of law)
Why is legal realism a positivist view?
considers the law as it is and realists are interested in the law rather than society. Which gives importance to what is really happening in society.
