The Nature Of Law

Question 1

Why are rules obeyed?

Answer 1

• Carry a sense of moral obligation
• The rule is reasonable and relevant
• A penalty may be imposed if the rule is broken

Question 2

What are morals?
Name examples.

Answer 2

• Morality is based on what people believe to be acceptable.
• Adultery and abortion

Question 3

What happened in the case of Gillick v West Norfolk and Wisbech AHA?

Answer 3

-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

Question 4

Name the distinctions between morals and law.

Answer 4

• 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.

Question 5

What is the overlap between law and morals?

Answer 5

-both are based on rules or norms.
- crimes such as murder, robbery and rape are generally held to be both immoral and illegal

Question 6

What is natural law?

Answer 6

• it is based on morality.
• a supporter of natural law sees law as coming from a higher source

Question 7

What is positivsim?

Answer 7

-looks more scientifically the law.

Question 8

What did Professor Hart believe?

Answer 8

• 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

Question 9

What did Lord Devlin believe?

Answer 9

• 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

Question 10

What was The Hart-Devlin Debate about?
What did Professor Hart and Devlin believe?

Answer 10

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

Question 11

What is Pluralism?

Answer 11

defined as a from of society in which the members of minority groups maintain their independent cultural traditions

Question 11

What does a pluralist believe?

Answer 11

• believes in the existence of different types of people and beliefs.

Question 12

What is society?

Answer 12

• a group of people who share common territory, interaction and culture.

Question 13

What are Bingham’s 4 primary roles in society?

Answer 13

• 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

Question 14

What did Cohen state?
What is an example of this?

Answer 14

“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.

Question 15

What are three social ethnic principles of what social control does which was formulated by Pound.

Answer 15

• 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.

Question 16

What did Durkheim believe?

Answer 16

that the importance of a presence of consensus helped and provided people with an understanding or what is acceptable and what is not

Question 17

What did the conflict theory state?

Answer 17

• 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.

Question 18

What is the labelling theory?
What is an A02 which would back this.

Answer 18

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.

Question 19

What does the consensus theory state?

Answer 19

• 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.

Question 20

What did the House of Commons Select Committee report 2016 state?

Answer 20

suggested that they must increase diversity in the magistrates and rebalance the age profile.

Question 21

What is legal realism?

Answer 21

the view that we should understand that the law is practised in court rather than it is set out in books or statues.

Question 22

What did Holmes state?

Answer 22

“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)

Question 23

Why is legal realism a positivist view?

Answer 23

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.

Question 24

Law is concerned with…

Answer 24

making, applying and enforcing rules; which does not necessarily mean that justice is achieved.

Question 25

What is the criminal case review system?

Answer 25

investigates cases from the past which have been found ruled incorrectly, obtaining full justice.

Question 26

What is justice based on?

Answer 26

fair and equal treatment for all

Question 27

What happened in RvR?

Answer 27

The HOL changed the 200 year old rule that a man cannot be guilty of raping his wife. Person who was convicted was likely thought this was injustice.

Question 28

What is utilitariansim?
What did Bentham produce and state the negatives about him.

Answer 28

• a law which increase the total happiness and welfare of society.
• the greatest good for the greatest number, ignores individual rights and the minority.

Question 29

Who is Mill and what approach did he have?

Answer 29

Minimalist approach to law, so that it should only interfere with individual rights where harm could be caused to another.

Question 30

What does the economic theory state?

Answer 30

look at the law in terms or property rights and distribution of wealth

Question 31

What would Marx argue against?

Answer 31

against individual rights and wealth distribution

Question 32

What did Nozick concentrate on?

Answer 32

how property and wealth was obtained and if it was fair or not.

Question 33

What did Aristotle introduce?

Answer 33

the principle of distributive justice; the allocation of assets in society should be proportional to a person’s claim on them.

Question 34

What did Aquinas propose?

Answer 34

• the natural law theory, if. higher law is followed , the result will be justice; a law that goes against God is always unjust.

Question 35

What did Bentham propose?

Answer 35

• Utilitarianism; aim to maximise human happiness