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LAW AND MORALITY Flashcards

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1
Q

What are the main theories of justice?

A

There are several theories of justice, including natural law theory, positivism, utilitarianism, and economic theories of justice.

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2
Q

Who are the proponents of natural law theory?

A

Proponents include Aristotle, St Thomas Aquinas, Professor Fuller, and Lord Devlin.

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3
Q

What is Aristotle’s view on law?

A

Aristotle believed that law should achieve proportionality and supported the ideas of corrective and distributive justice.

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4
Q

What did St Thomas Aquinas believe about natural law?

A

Aquinas believed that natural law is derived from God and that laws contrary to human good should not be followed.

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5
Q

What was Lord Devlin’s argument in the Hart-Devlin debate?

A

Devlin argued that the law should guard the public’s moral welfare and can concern itself with immoral acts.

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6
Q

What is positivism?

A

Positivism is the theory that law and morality are separate concepts, and laws should be obeyed regardless of their moral implications.

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7
Q

Who are the key supporters of positivism?

A

Key supporters include Austin, Kelsen, and Professor Hart.

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8
Q

What is Bentham’s utilitarian theory of justice?

A

Bentham’s theory is based on achieving the greatest good for the greatest number, maximizing happiness through laws.

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9
Q

What is John Stuart Mill’s contribution to utilitarianism?

A

Mill advocated for minimal state intervention, arguing that the state should only intervene to prevent harm to others.

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10
Q

What is Marx’s view on economic theories of justice?

A

Marx believed in the redistribution of wealth according to need and viewed laws as tools for the ruling class to control the proletariat.

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11
Q

What does Posner’s economic theory equate justice with?

A

Posner equates justice with economic efficiency and social utility.

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12
Q

What is John Rawls’ theory of justice?

A

Rawls’ theory states that justice is fairness, determined behind a ‘veil of ignorance’ without knowledge of one’s social standing.

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13
Q

What is Nozick’s entitlement theory?

A

Nozick’s theory is based on individual rights to life, liberty, and possessions, opposing redistribution of wealth.

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14
Q

What areas of criminal procedural law achieve justice?

A

Justice is achieved according to most theories discussed in procedural criminal law.

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15
Q

Which theories of justice are rejected in the UK?

A

Marxist theories of justice and Nozick’s idea of the minimal state are rejected.

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16
Q

What is the Right to a Fair Trial?

A

The right to a fair trial is a principle long existing in English Criminal Law, now enshrined in statute as a basic Human Right (ART 6 ECHR) in the Human Rights Act 1998.

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17
Q

What is the significance of trial by jury in England?

A

Trial by jury is fundamental to justice in England, existing since 1066 and mentioned in the Magna Carta (1215).

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18
Q

What did Lord Devlin say about trial by jury?

A

Lord Devlin described trial by jury as ‘the light which shows which freedom lives’.

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19
Q

What was the public reaction to the R v Twomey case?

A

There was outrage when a Crown Court trial took place without a jury in R v Twomey.

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20
Q

What is jury equity?

A

Jury equity refers to decisions made in secret without reasons given, seen as ultimate fairness and justice.

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21
Q

What did the Thomas Report on juries (2010) confirm?

A

The Thomas Report confirmed that juries were largely representative of communities and free from racial prejudices.

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22
Q

What concerns exist regarding jurors understanding evidence?

A

The Roskill Committee found many jurors did not understand judge’s directions or evidence in fraud cases.

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23
Q

What is the issue with jurors using social media?

A

12% of jurors admit to internet research, risking the veil of ignorance in trials.

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24
Q

What legislation was passed in 2015 regarding jurors?

A

The 2015 legislation allows courts to seize and search jurors’ phones and electronic devices.

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25
What does R v Sussex Justices highlight about jury trials?
R v Sussex Justices emphasizes that 'justice must not only be done, it must be seen to be done'.
26
What is the principle of access to justice?
Access to justice means everyone charged with an offence should be able to get legal advice and representation.
27
What did the Legal Aid Act 1949 aim to achieve?
The Legal Aid Act 1949 aimed to promote access to justice for all regardless of wealth.
28
What was the estimated eligibility for legal aid in 2009?
By 2009, only 29% of people were estimated to be eligible for legal aid.
29
What impact did the Legal Aid (Sentencing & Punishment of Offenders Act) 2012 have?
It reduced eligibility for legal aid, limiting access for those charged with serious offences.
30
What is the role of the independent judiciary in England?
The independent judiciary makes decisions free from governmental influence and is immune from prosecution.
31
What does the Latin phrase 'nemo judex in causa sua' mean?
'Nemo judex in causa sua' means no one should be a judge in their own cause.
32
How does the independent judiciary support Rawls' theory?
An independent judiciary supports Rawls' theory that 'justice is fairness'.
33
What does S3 of the Human Rights Act 1998 require judges to do?
Judges must interpret laws made by Parliament as compatible with the ECHR.
34
What areas of criminal procedural law achieve justice?
Justice is achieved according to most theories discussed in procedural criminal law.
35
Which theories of justice are rejected in the UK?
Marxist theories of justice and Nozick's idea of the minimal state are rejected.
36
What is the Right to a Fair Trial?
The right to a fair trial is a principle long existing in English Criminal Law, now enshrined in statute as a basic Human Right (ART 6 ECHR) in the Human Rights Act 1998.
37
What is the significance of trial by jury in England?
Trial by jury is fundamental to justice in England, existing since 1066 and mentioned in the Magna Carta (1215).
38
What did Lord Devlin say about trial by jury?
Lord Devlin described trial by jury as 'the light which shows which freedom lives'.
39
What was the public reaction to the R v Twomey case?
There was outrage when a Crown Court trial took place without a jury in R v Twomey.
40
What is jury equity?
Jury equity refers to decisions made in secret without reasons given, seen as ultimate fairness and justice.
41
What did the Thomas Report on juries (2010) confirm?
The Thomas Report confirmed that juries were largely representative of communities and free from racial prejudices.
42
What concerns exist regarding jurors understanding evidence?
The Roskill Committee found many jurors did not understand judge's directions or evidence in fraud cases.
43
What is the issue with jurors using social media?
12% of jurors admit to internet research, risking the veil of ignorance in trials.
44
What legislation was passed in 2015 regarding jurors?
The 2015 legislation allows courts to seize and search jurors' phones and electronic devices.
45
What does R v Sussex Justices highlight about jury trials?
R v Sussex Justices emphasizes that 'justice must not only be done, it must be seen to be done'.
46
What is the principle of access to justice?
Access to justice means everyone charged with an offence should be able to get legal advice and representation.
47
What did the Legal Aid Act 1949 aim to achieve?
The Legal Aid Act 1949 aimed to promote access to justice for all regardless of wealth.
48
What was the estimated eligibility for legal aid in 2009?
By 2009, only 29% of people were estimated to be eligible for legal aid.
49
What impact did the Legal Aid (Sentencing & Punishment of Offenders Act) 2012 have?
It reduced eligibility for legal aid, limiting access for those charged with serious offences.
50
What is the role of the independent judiciary in England?
The independent judiciary makes decisions free from governmental influence and is immune from prosecution.
51
What does the Latin phrase 'nemo judex in causa sua' mean?
'Nemo judex in causa sua' means no one should be a judge in their own cause.
52
How does the independent judiciary support Rawls' theory?
An independent judiciary supports Rawls' theory that 'justice is fairness'.
53
What does S3 of the Human Rights Act 1998 require judges to do?
Judges must interpret laws made by Parliament as compatible with the ECHR.
54
What is the role of judges and magistrates in sentencing?
Judges and magistrates sentence, not juries, to ensure a consistent and fair approach to sentencing.
55
Why must the law appear fair in sentencing?
The law must appear to be fair and treat everyone equally because criminal sentencing has serious sanctions, including loss of liberty and family connections.
56
What does S152 of the CJA 2003 state about custodial sentences?
Custodial sentences should only be given when nothing else will work.
57
What guidance do judges use when deciding sentences?
Judges use guidance from the Sentencing Guidelines Council to determine the type and length of sentences.
58
What are aggravating factors in sentencing?
Aggravating factors, such as racial or religious motives and previous convictions, make the offence more serious.
59
What are mitigating factors in sentencing?
Mitigating factors are circumstances that may lead to a lesser sentence.
60
What is a criticism of the mandatory life sentence for murder?
It fails to take account of motive, treating mercy killers the same as serial killers.
61
What discretion do judges have in sentencing cases like Inglis?
Judges can determine the minimum term served in prison, as seen in the Inglis case where the minimum was 5 years.
62
What is the purpose of the Criminal Cases Review Commission (CCRC)?
The CCRC reviews possible miscarriages of justice and decides if wrongful convictions or unduly harsh sentences occurred.
63
What does the CCRC not reconsider?
The CCRC does not reconsider innocence or guilt, only whether new evidence casts doubt on the original conviction.
64
What significant cases were referred to the CCRC?
Cases include Derek Bentley, Emma Humphreys, Mrs Aluwahlia, and Sara Thornton.
65
What was the impact of the Police and Criminal Evidence Act 1984 (PACE 1984)?
PACE 1984 introduced safeguards to ensure fair treatment of police suspects and just evidence collection.
66
What does Code C of PACE require?
Code C requires that suspects receive a caution about their right to silence and ensures fair treatment during custody.
67
What change did the Criminal Justice and Public Order Act 1994 make?
It abolished the traditional right to silence, allowing courts to draw adverse inferences in certain situations.
68
What did the case of Murray V UK confirm?
The abolition of the right to silence does not breach human rights due to other safeguards in the legal system.
69
What is the general belief about a good legal system?
A good legal system should aim to create, apply, and enforce justice.
70
Is there a single definition of justice?
No, there is no single definition of what justice means.
71
What is the dictionary definition of justice?
The idea of treating people fairly and equally within the law.
72
What did John Stuart Mill say about justice?
"Every person should get what they deserve, but should not undergo good or evil that what he does not deserve." ## Footnote This confirms the idea that justice equates to fairness.
73
What is the concept of judicial precedent?
Judicial precedent (stare decisis) requires judges to treat like cases alike by applying the same legal principles/rules from higher courts in all later similar cases.
74
What issue can arise from the principle of stare decisis?
It can create injustice as judges may be stuck applying outdated laws, which only appeal courts can change.
75
What was the significance of the case R v R (1991)?
It changed the unjust rule that it was not a crime for a man to rape his wife.
76
Why do different people have varying views on justice?
Different parties within the law have competing interests, and achieving justice for one may cause injustice for another.
77
What did Ward LJ say in RE A (2000)?
"Everyone seems to have a proper view about the outcome...our answer (to separate them) will be applauded by some but as many will be offended by it."
78
What did Lord Wright state about the role of a judge?
The guiding principle of a judge is to do justice according to the law, but a satisfactory definition of justice is elusive.
79
What is the relationship between law and justice?
Justice and law do not always coincide, and there are instances where the law fails to achieve justice.
80
What evidence suggests that law can create injustice?
The existence of a system of appeals and high-profile miscarriages of justice indicates that law can fail to achieve justice.
81
Who was Aristotle and what was his view on justice?
Aristotle was a Greek philosopher who proposed a natural law theory, suggesting that laws derive from ideas of nature.
82
What types of justice did Aristotle introduce?
(1) Corrective justice, which involves punishment/sentencing in criminal law. (2) Distributive justice, which concerns fairly apportioning societal burdens.
83
What will the essay primarily focus on?
The essay will explore different notions of justice in criminal law and assess which areas achieve or fail to achieve justice.

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