pluralism and rule of law Flashcards
(21 cards)
what is pluralism
This is the idea that within a society there can be many different opinions and groups and that they are all given opportunity to survive and to have rights protected
who came up with this
Hart
what are factors of pluralism
minority groups will have protections and be given the same rights as majority groups
Differences are seen as good and are celebrated; tolerance is required e.g Chinese new year, Diwali.
Allows different groups to keep and celebrate their own traditions
what are drawbacks of pluralism
There can be conflict between groups
Sub-groups in society tend to congregate (gather) together
Sometimes minority groups are prevented from gaining positions of power due to discrimination, so rights cannot be guaranteed
what are the impacts of pluralism on the law in terms of difficulties it presents
Different views on right and wrong (e.g. what should be punished or not).
Death penalty/physical punishment (e.g. hard labor).
Difficult for the law to reflect views/morals of all.
Different approaches to role of law – e.g. should it try to control crime/punish offenders or rehabilitate offenders?
what are the impacts of pluralism on society in terms of difficulties it presents
Can lead to culture clash in society – this can lead to disagreements, even riots.
Protests can be escalated with opposition protests (e.g. abortion – Platform Artze).
Differences in religious beliefs.
what are the impacts of pluralism on justice in terms of difficulties it presents
Justice means different things to different people.
Some may focus on punishing offenders whereas others may focus on rehabilitation.
e.g. restorative justice.
how does the law shape behavior of society
Rule of Law:
Nobody should be above the law (e.g. get away with crime) and nobody should be below the law (e.g. punished without trial)
This is required in a civilized, democratic society and allows society to accept the law
for this to exist what is needed within higher powers
needs to be transparency– this means that government/legal issues are all public and nothing is done in secret
This is why you can go into the public gallery in court and in Parliament
what are 3 key parts of the rule of law
Equality before the law
Accessibility of the law
The absence of arbitrary power
who suggested principles that ensure the rule of law is kept
Lord Bingham
what were they
State must abide by domestic and international law
People only punished if a crime is committed
All rights are protected by law
Law is clear, precise, and accessible to the public
All people are treated equally
Human rights must be respected
Court systems must be effective (low cost, little delay)
There must be some way for citizens to resolve non-criminal disputes without excessive cost or delay (e.g. ADR and tort law)
evaluation
State must abide by domestic and international law examples
Russia’s invasion of Ukraine seems to be against international law
Party gate shows that not all domestic laws are followed by the state
People only punished if a crime is committed
Woolmington v DPP – golden thread of English criminal law is innocent until proven guilty
However A and Others v Secretary of State shows that law existed to punish without trial
Also miscarriages of justice (wrongfully convicting someone) show this isn’t always achieved
All rights are protected by law (not by discretion)
Human Rights Act 1998 & Equality Act 2010
Both examples of rights being protected by the law
However human rights law includes discretion with margin of appreciation – especially national security issues – so this may not be secure
Law is clear, precise, and accessible to the public
Law Commission role is to codify the law and keep all law under review to make sure it is clear and accessible (Law Commission Act 1965)
However many issues still exist in laws such as Offences Against the Person Act
Also 3,000 statutory instruments a year = not accessible to the public
All people are treated equally
Equality Act 2010 if legal safeguard to ensure this happens
However not always in practice – issues of discrimination still arise
Stephen Lawrence murder & MacPherson Inquiry – also recent report on London Metropolitan police says they are racist, homophobic and misogynistic
Human rights must be respected
Human Rights Act 1998 puts the ECHR into UK law so it can be enforced in UK courts
However there are many situations where limited rights allow states to take away rights (article 5 & 6)
Also qualified rights have to be balanced against one another (article 8, 10 and 11) so not all rights are respected
Courts systems must be effective (low cost, little delay
Civil courts system does not uphold this
Lord Woolf reforms lead to Civil Procedure Rules 1998 tried to reduce cost and time by using ADR and introducing the three tracks, but has not solved issue
Also criminal courts provide legal aid but it is means tested so not everyone will get it
There must be some way for citizens to resolve non-criminal disputes without excessive cost or delay (e.g. ADR and tort law)
ADR methods exist and are encouraged/required in some situations (e.g. ACAS for employment tribunals)
However lack of legal aid in civil law means many are prevented from getting access to justice as they cannot it
