1.1 The Nature of Law Flashcards
(89 cards)
1
Q
What are the 4 categories of legal rules and regulations
A
Public laws
Private laws
Procedural laws
Substantive laws
PPPS
2
Q
Purpose of a procedural law
A
Prescribe the framework in which other laws are made and enforced
3
Q
Example of a procedural law
A
The Police and Criminal Evidence Act 1984 provides a procedure to be followed by the police in order to make a lawful arrest
4
Q
Purpose of substantive laws
A
Create and define legal rights and obligations
5
Q
Example of a substantive law
A
Criminal offences are substantive laws, but so are employment rights or the law relating to divorce
6
Q
Purpose of public laws
A
Govern the relationship between the state and its citizens
7
Q
Example of a public law
A
Public laws include criminal laws and most procedural laws as they define the powers of Parliament, government and other key institutions of the state, such as the police and courts
8
Q
Purpose of private laws
A
Create rights enforceable between individuals; they are mainly substantive in nature
9
Q
Example of a private law
A
The law of trespass allows you to restrict access to your property
10
Q
Who make up the Criminal Justice System (CJS) (6)
A
- The police
- the Crown Prosecution Service (CPS)
- The criminal courts
- His Majesty’s Prison Service
- His Majesty’s Probation Service
- The National Offender Management Service
11
Q
What is the burden of proof for criminal law
A
Beyond reasonable doubt
12
Q
What categories of legal rules and regulations does criminal law fit into
A
Public law and substantive law
13
Q
Aims of civil law
A
Compensate those whose rights have been violated
14
Q
Are police involved in civil law cases
A
No
15
Q
Burden of proof for civil law
A
The balance of probabilities
16
Q
Which type and category does theft fit into
A
Criminal law
Public law
Substantive law
17
Q
Which type and category do rules of evidence fit into
A
Procedural law
18
Q
Which type and category do ‘conventions that dictate how an Act of Parliament should be made’ fit into
A
Procedural law
19
Q
Which type and category do wills fit into
A
Substantive law
20
Q
Which type and category does health and safety law fit into
A
Substantive law
21
Q
What type of law are the police likely to be involved
A
Criminal law
22
Q
What is the aim of criminal law
A
Define and punish acts that harm society, which maintains social order and protects individuals and property
23
Q
Is the criminal or civil standard of proof higher
A
Criminal
24
Q
Name two of the criminal law courts
A
Magistrates’ Court
Crown Court
Youth Court
Court of Appeal
Supreme Court
25
Name two of the civil law courts
County Court
High Court
Court of Appeal
Supreme Court
26
Where do the sources of law come from (4)
1. Custom
2. Statute
3. Devolved bodies
4. Common law
27
What is a custom in law
Disapproval of a community
Some rules may 'harden into rights' and be so widely accepted that they become law
28
What are statutes
Acts of Parliament passed by the House of Commons, House of Lords and the monarch
29
What are devolved bodies
Organisations that the UK Parliament has delegated some of its law-making powers to
30
Give 3 examples of devolved bodies
The EU
The Scottish Parliament
The Welsh Government
The Northern Ireland Assembly
Local councils (borough and county)
31
What does common law mean
Laws that have been developed by judicial decisions
32
Give an example of common law and explain how it has become a common law
Murder ---> developed from ancient custom and is still developing through the decisions of judges in the highest courts - these decisions are know as 'precedents'
33
Give 3 examples of individuals' interests
Survival
Safety
Freedom
Justice
Privacy
Healthcare
Education
34
What are the 2 examples of the state's (public) interests
Physical security
Financial security
35
Give an example of individuals' interests conflicting
A starving man's method of survival is stealing food
36
Give an example of the state's interests conflicting
A suspected terrorist's interest in freedom will conflict with the state's interest in security
37
How does the law balance conflicting interests
Conflict between individuals - substantive law
Conflict between the state and individuals - generally procedural law
38
Why is Jeremy Bentham significant
- Devised the concept of utilitarianism
- Leading theorist in the philosophy of law
- Strongly in favour of the extension of individual legal rights and opposed to the idea of natural law
39
Why is Rudolf von Jhering significant
He explored the 'struggle of law', and conceived of jurisprudence (the theory or philosophy of law) as a science to be utilised for the further advancement of the moral and social interests of mankind
40
Why is Roscoe Pound significant
- He explored social engineering, emphasising the importance of social relationships in the development of law
- He stated that a law maker acts as a social engineer by attempting to solve problems in society, using law as a tool
41
Name 3 key theorists on enforceable rights and battling conflicting interests
Bentham
von Jhering
Pound
42
Miller v Jackson
Conflict of interests
- Cricket club wanted to play cricket
- Locals wanted to stop balls flying into their gardens
43
Kennaway v Thompson
Conflict of interests
Use of personal injunctions and damages in order to strike a balance between the rights of the neighbours and social interest of sport
- Motor boat racing became more frequent
- Local raised a claim for nuisance of the noise and disturbance experienced
44
Evans v UK
Conflict of Interests
- Individuals' conflicting rights
- Destruction or otherwise of embryos created from them both
45
R v T
Conflict of interests in substantive law
46
DPP v Majewski
Restriction of the use of a 'defence' for policy reasons
47
Why have the standards of a reasonable person
Used by courts to decide whether a party has acted as a reasonable person would do
Used in negligence
48
What is vicarious liability
Fault transferred from one person to another
49
What is contributory negligence
Fault shared between two (or more) parties
50
Sweet v Parsley
Strict liability avoided
Judges inserted the word 'knowingly' to prevent the offence being one of strict liability
- Teacher allowed her students out to her house
- Students smoked cannabis
- Teacher unaware of activity and because of this was not liable
51
R v Janjua and Choudhury
Different levels of fault acceptable to establish mens rea of murder, from direct intent to kill to oblique intent GBH
- Blade over 5+1⁄2 inches long had been used
- Direct intent to cause serious harm
52
R v Adomako
Lowest type of fault possible in criminal law - negligence
Gross negligence manslaughter case
- Anaesthetist failed to take adequate care of the patient
'Adomako Test for gross negligence manslaughter'
53
Paris v Stepney Borough Council
Fault in civil law
- Employer knew of employee's condition (one eye) and failed to provide safety equipment
54
Latimer v AEC
Fault in civil law
- Employer didn't take sufficient steps to keep his staff safe - he was not required to take unreasonable steps
55
Froom v Butcher
Fault can be shared in negligence using the principle of contributory negligence
- The claimant was injured in an accident caused by D, however the claimant wasn't wearing a seatbelt and so contributed to his own injuries
THINK: Froom Froom (car) to the Butchers
56
Mohamud v WM Morrison Supermarkets
Fault can be transferred to the employer, who can be legally responsible for the actions of an employee
- Morrisons supermarkets liable when its employee attacked the claimant
Morrison in the (Moha)mud
57
Cambridge Water Co. v Eastern Counties Leather
Established a requirement of fault in negligence and stating that damage must be reasonably foreseeable
58
Why is it important that the balancing of competing interests is seen to be done
It ensures a just and stable society
59
Why is having a number of offences without fault important for efficiency purposes
Strict liability offences can enhance efficiency in the criminal justice system. This is because they streamline the process of prosecution by reducing the burden of proof required to establish a crime.
60
What effect does a defence have on the fault of a crime
Some defences, like insanity or duress, can negate the criminal responsibility entirely, meaning the defendant is not considered culpable. Other defences, like loss of self-control or diminished responsibility, may reduce the degree of fault, leading to a conviction for a lesser offence
61
Lord Devlin's 4 key principles for Parliament to bear in mind when deciding what moral 'offences' ought to be prohibited by law and which ought not
1. The individual freedom to be allowed must be consistent with the integrity of society
2. The limits of such tolerance are not static, but law makers should be slow to change laws which protect morality
3. Privacy must be respected as far as possible
4. The law is concerned with the minimum rather than the maximum standards of behaviour
62
What is positivism
The belief that laws and morals should be kept separate
63
Name 3 key theorists for positivism
Aristotle
Jeremy Bentham
John Stuart Mill
H.L.A. Hart
Wolfenden Report 1978
64
Name 2 key theorists for natural law theory
Lord Devlin
St Thomas Aquinas
Lon Fuller
Viscount Simonds
James Fitzjames-Stephens
65
Which mechanism is used in parliament to pass controversial law without political parties having to state an option
Statutory Instruments (SIs) - result in a quicker passage of laws
66
What is meant by pluralism
A condition or system in which two or more states, groups, principles, sources of authority, etc., coexist
67
R v Wilson
Positivism
- D branded his initials on his wife's buttocks with a hot knife, at her request
- Skin became infected and she sought treatment from a doctor, who reported the matter to the police
RULED Not guilty as it was a consensual activity in the privacy of a matrimonial (relating to married couples') home
68
R v Brown
Natural Law
- Ds engaged in sadomasochism, including physical torture
RULED Guilty: Lord Templeman - "Pleasure derived from an infliction of pain is an evil thing."
69
R v Human Fertilisation and Emryology
Authority ex parte Blood
Positivism
- Blood's Husband contracted meningitis and lapsed into a coma
- Samples of sperm were taken for later artificial insemination
- Blood's husband died shortly after the samples were obtained
RULED Blood was not permitted to use the sperm as her husband's consent hadn't been given, however she used an EU rule which permitted her to use it abroad
70
R v Gibson and Sylveire
Natural law
- Ds exhibited a pair of earrings mad with freeze-dried human foetuses at a London gallery
RULED Guilty
71
R v Cox
Natural law
- Cox had been treating V for years
- She pleaded with him to end her life
- Cox administered an injection to stop her heart
RULED Guilty, however Cox received a suspended sentence
72
Aristotle's beliefs for law and justice
- Justice is about distribution and proportionality
73
Aquinas' beliefs for law and justice
'Justice as fairness'
74
Jeremy Bentham's beliefs for law and justice
- Coined the idea of utilitarianism - purpose of law is to achieve the greatest happiness for the greatest number of people
- Indicated that the purpose of law is to create a balance between serving the individual and society as a whole
75
Karl Marx's beliefs for law and justice
Justice can only be achieved by redistribution of wealth - against capitalism
76
Robert Nozick's beliefs for law and justice
- Society is just if everyone is entitled to the holdings that they possess
- Sharp contrast with Marx's beliefs
77
Procedural justice + examples
- We should all be equal before the law
- Everyone is entitled to put their case in court
- Financial assistance should exist for accessing lawyers and the courts
- Rules of evidence ensure the material presented in court is reliable
- The right to a trial by jury ensures justice can be done in an individual case rather than a policy
- Judges, magistrates and juries must not be biased or appear to be biased
78
Substantive justice + examples
- Achieved by the application of legal rules themselves
- In criminal law, there are defences to justify the actions of a defendant and partial defences to murder to ensure the defendant still shoulders some responsibility
- When sentencing, the accused should be treated consistently with their level of fault
- In civil law, concepts such as standard of care owed by a professional above that of an ordinary person help to achieve justice
79
Name 3 cases of miscarriages of justice
- The Guildford Four
- The Birmingham Six
- Stephen Lawrence
- Alan Turing
- Timothy Evans
80
Who wrote "A Theory of Justice" and why was this book significant
John Rawl
Justice is the idea that the law is 'far' in how it seeks to punish wrongs and protect rights
1. The social contract: social cooperation relies on a contract which people have made among themselves
2. Greatest equal liberty: this includes basic freedoms such as speech
3. Difference principle: social and economic inequalities are fair and just, but only if they work for the benefit of the least advantaged members of society
81
Define justice
Justice is the idea that the law is 'far' in how it seeks to punish wrongs and protect rights
82
Lindsay v Commissioners of Customs and Excise
Aristotle
The practice of customs officials to confiscate cars as well as the goods being smuggled in them was seen as disproportionate
83
R v Miller
Procedural justice - police powers
The police asked 300 questions of the suspect - held to be oppressive
84
R v Ponting
Procedural justice - trial by jury
85
R v Bingham JJ ex parte Jowitt
Procedural justice - the process must be free from bias
86
Glynn v Keele University
Procedural justice - there must be reasonable opportunity to test the evidence
87
Re Pinochet
Procedural justice - natural justice - there can be no suggestion of bias (nemo judex in causa sua)
88
R v Mason
Procedural justice - evidence must be obtained fairly
89
R v Dudley and Stephens
Natural law
- Ds were shipwrecked and stranded in a small boat with a young cabin boy
- When food ran out, they drew straws to see which one would be killed for others to eat him. Ds ate the cabin boy and were convicted of murder
Law and morality are not the same. Utilitarianism not used here - individual justice is not sacrificed for the good of the majority, however the sentence was commuted and therefore reflective of Ds ordeal
