Law and Society

Question 1

What is society?

Answer 1

Group with shared territory, interactions, beliefs, cultures, norms and values

Question 2

What is pluralism?

Answer 2

• Multiculturalism
• Differing beliefs and values in society
• Still function
• May be some assimilation (lost culture)

Question 3

Describe the interrelationship between law and society

Answer 3

• Society influences law = law making, reform, protests, campaigns, pressure groups, media
• Law influences society = behaviour and consensus (Road Traffic Act 1998)

Question 4

What is the rule of law?

Answer 4

• Equal application
• Bingham and Dicey
• Foundation on which state, society and judiciary must embrace

Question 5

What are the widely accepted roles of law in society?

Answer 5

• Protect from harm (criminal)
• Meet pressing social needs (education, healthcare)
• Settle disputes (ADR, civil Cts)
• Encourage people to do the right thing (deterrents)

Question 6

What is the main role of law in society?

Answer 6

• Balance competing interests between individuals and state
  –> Conflict (right to food v Theft Act)
  –> HR consensus protected by law
  –> Laws conflict human rights (Sarah’s law v Art 8)

Question 7

What are the 6 theories of law and society?

Answer 7

• Conflict theory
• Social control mechanism
• Consensus theory
• Rule of law
• Legal realism
• Labelling theory

Question 8

Explain conflict theory

Answer 8

• Marx = law is a tool of the rich and powerful to exploit the working class
• Jhering = role of law to order society, conflict of balancing interests
• Individual v individual = civil Cts, balance rights
  –> Trespassers safety v right to land
  –> Consumers v businesses
  –> Right to not be injured v right to not be unfairly liable
• Individual v state
  –> State > individual = utilitarian (Abu Qatada)
  –> Individual > state = human rights
  –> Public interest = Ferdinand v MGN
  –> Individual = Max Mosely, Dickson v UK, Marper v UK, Belmarch)

Question 9

Explain law as a social control mechanism

Answer 9

• Durkheim
• Law needed to preserve and maintain social stability
• Boundary making device
• x2 legal structures = repressive (punish), restitutive (protect/restore damage)
• Social norms = no legal basis, common/shared views, accepted in society
• Maintain control to avoid chaos/disorder (riots)
• Police powers to exercise social control (breach of the peace, public order offences, kettling)
• Not always an effective control (suicide circa 1961)

Question 10

Give some examples of how the law acts as a social control mechanism

Answer 10

• Health and safety regulations
• SLO’s = hold to higher standard (Callow v Tillstone)
• Road Traffic Act 1998
• Drugs
• Environmental protection (Alphacell)
• Protect the young and vulnerable (sexual offences, licensing, gambling, alcohol)

Question 11

Explain consensus theory

Answer 11

• Durkeim
• Law exists to meet societies needs
• Balance in accordance with values
• Pound = individuals and states needs compete with themselves not each other

Question 12

Explain legal realism

Answer 12

• Understand the law
• Positivist
• Common law > statute
• No legal certainty
• Right wing = tough on crime, punishment and retribution
• Left wing = focus on rehabilitation and social equality

Question 13

Explain labelling theory

Answer 13

Not make criminal those who are not truly criminal

Question 14

How is law and society applied in procedural law?

Answer 14

• Civil
  –> Institutions to administer law
  –> Balance competing interests
  –> Lack of funding for civil cases means not equality of arms
• Criminal
  –> Society (aims of sentencing)
  –> Individual (fair trial, presumption of innocence, right to a fair trial)
  –> Fair balance (bail = all entitled unless reason)
• Law making
  –> Influence = lobbying, pressure groups, public opinion (Dangerous Dogs Act), media (Dunblane)
  –> Consult society in green paper stage
  –> LC consult affected parties
  –> Elected MP’s
  –> Pass some laws to create consensus
  –> Laws to protect individuals against state

Question 15

How is law and society applied in substantive law?

Answer 15

• Criminal
  –> Intoxication and consent = deterrent and public policy
  –> SLO’s = efficient, raise standards of behaviour, deterrent
• Tort
  –> Strike fair balance
  –> Negligence (Caparo countered by Robinson)
  –> VL (C’s rights > businesses interests)
• HR
  –> Protect against arbitrary state interference
  –> May conflict HR (Sarah’s law v Art 8)

Question 16

Evaluate law and society

Answer 16

• Influence on law making = rushed legislation and moral panic (Dangerous Dogs Act)
• Now always align with social views (death penalty)
• Law slow to catch up with social change (Suicide Act 1961)
• Media can influence law making (Dunblane) but can construe
• Cannot resolve conflict without equality of arms (LASPO 2012 reduced civil funding)
• Influence on law making may not be representative (MP’s, judges, HoL)
• Juries represent cross section of society
• Law not always effective as a social control mechanism as may be unfair, illogical or outdated
• Right wing realism ineffective (highest reoffending rate) but cannot afford to move to the left wing