RULE OF LAW

Question 1

RULE OF LAW

Answer 1

1. No one should be punished except for breaches of law
2. ‘Equal subjection to the law’ (equality before the law)
3. A certainty of punishment if the law is broken

Question 2

AV DICEY

Answer 2

Theory of rule of law

Question 3

Lord Hailsham

Answer 3

Government is dominated by ‘elective dictatorship’

Question 4

Plato (Natural law)

Answer 4

Behind ever-changing forms of social and political life, lay unchanging archetypal forms for

Question 5

Aristotle (Natural Law)

Answer 5

Believed that the purpose of law was to encourage humankind to live in accordance with virtue.

Question 6

Aquinas

Answer 6

Human laws have a moral basis – Natural law could be penetrated through our god-given natural reason and guides us towards the attainment of the good life on earth.

Question 7

Jefferson

Answer 7

The purpose of law was to protect these god-given and inalienable rights

Question 8

Mill

Answer 8

Positive law is required to prevent an individual from harming another (Harm principle) – The law has no right to interfere with ‘self-regarding’ actions

Question 9

Hart

Answer 9

Primary and secondary rules theory - Primary = regulate social behaviour, secondary, rules which confer power upon the institutions of government (constitution)

Question 10

Austin

Answer 10

Legal positivism - ‘law is law because it is obeyed’

Question 11

Hobbes - why order?

Answer 11

To prevent natural disorder

Question 12

Burke

Answer 12

Order must be maintained in order to protect the social whole and the organic society. If one part is damaged then the whole is threatened

Question 13

Scruton

Answer 13

‘Order is a natural necessity’

Question 14

Rousseau

Answer 14

‘Man is born free but everywhere in chains’

Question 15

Socialists

Answer 15

Capitalism encourages human beings to be self-seeking and competitive

Question 16

Kropotkin

Answer 16

The main supports of crime are idleness, law and authority

Question 17

WHAT IS PUNISHMENT?

Answer 17

Refers to a penalty inflicted on a person for a crime or offence on the basis of law by the state - Punishment is split into three models

Question 18

Hegel

Answer 18

Punishment aims to overturn the negations of right, so in the first case it serves to restore the victim to his or her proper place as a right bearing individual, since they were treated by the criminal as a being without rights.

Question 19

Flew-Benn-Hart model of punishment

Answer 19

Contains five elements stating that punishment must:
o Involve pain or other consequences normally considered unpleasant
o Be for an offence against legal rules
o Be of an actual or supposed offender for the offence
o Be intentionally administered by human beings other than the offender
o Be imposed or administered by an authority constituted by a legal system against which the offence is committed

Question 20

Hobbes

Answer 20

Hobbes argued for punishment as it preseved law and order

Question 21

Mill

Answer 21

Punishment protects individual liberties (harm principle)

Question 22

Locke

Answer 22

Punishment is legitimised by the citizenship’s tacit consent through the social contract

Question 23

Hegel

Answer 23

Punishment must be retributive rather than vengeful- Hegel sees retributive punishment as objective, universal and mediated, whereas revenge is subjective, particular and immediate.

Question 24

Old Testament

Answer 24

‘An eye for an eye, a tooth for a tooth’

Question 25

DETERRENCE

Answer 25

Only works if humans are rational beings

Question 26

Bentham

Answer 26

‘General prevention ought to be the chief end of punishment as it is its real justification’. People will try to maximise pleasure and minimise pain (utilitarianism)

Question 27

Cersare Beccaria

Answer 27

Proposed that the most effective way to administer punishment is to increase its certainty, swiftness, and severity. Making sanctions immediate, certain, and severe sends a message to society that the crime will not be tolerated. Individuals respond to deterring incentives

Question 28

REHABILITATION

Answer 28

State to blame for the individual offender

Question 29

JUSTICE

Answer 29

Refers to what is fair or right - Social and legal justice, legal justice further split into procedural and substantive justice

Question 30

Social justice

Answer 30

Concerned with the fair outcomes in society

Question 31

Legal justice

Answer 31

Concerned with the way in which law distributes penalties for wrong doingConcerned with the way in which law distributes penalties for wrong doing

Question 32

PROCEDURAL JUSTICE

Answer 32

Relates to how the rules are made and applied

Question 33

Rawls

Answer 33

Justice is solely determined by the just application of procedures and although there is widespread use of judges, they are constained as they only need to apply justice

Question 34

SUBSTANTIVE JUSTICE

Answer 34

Concerned with the rules themselves and how they are ‘just’ or ‘unjust’

Question 35

Devlin

Answer 35

‘Law should enforce morality’ – Law is based upon the moral values of the average citizen or ‘the man on the Clapham Omnibus’. Judges who are strictly impartial and stand apart from politics should apply law.

Question 36

Gandhi

Answer 36

Satyagraha (defense of the truth)- Appeal to higher sense of justice - Rejection of unjustified laws

Question 37

Martin Luther King

Answer 37

Non-violent direct action where there is no alternative – Electoral discrimination where African Americans could not vote

Question 38

Thoreau

Answer 38

People should not permit governments to overrule their consciences, and people have a duty to allowing such acquiescence to enable the government to make them the agents of injustice