Law And Society - Nature Of Law

1) protect people from harm

2) ensure a common good

3) to settle arguments

4) persuade people to do the right thing

Repressive - criminal law: when a person is found guilty of an offence, they will be punished, and protecting the public is the justification for sending offenders to prison

Restitutive - civil law: uphold the rights of individuals and businesses. The courts can order compensation to put parties back to the position before the violation.

Identify paedophiles in society. Was so big due to media coverage.

Media causes people to act a certain way so they are not pointed out to everyone else. When a change in trend, media seems to overreact, putting people off.

- “law is an engineering tool for social control”

- where interests are in conflict, the law should try and achieve social cohesion.

- social interests should not be balanced against individual interests.

E.G. smoking in a social setting, in pounds view, individual interests of those who want a ban are balanced to those who don’t .. it’s not balanced on other factors like because of health care costs etc.

Ensures social norms and values are acceptable.

Policed boundaries deal with deviant behaviour.

If control law is weak and not enforced with a degree of consistency then social control fails.

A right can be claimed and comes with a corresponding duty, as in the right to a contract.

A liberty is the freedom to do as you choose and this imposes no corresponding duty.

Interests are in both the public and private sectors.

Law cannot satisfy all interests but will attempt as many as possible. (Usually the dominant group in society)

E.g using the utilitarian theory.

Other individuals - e.g. a starving mans method of survival may be to steal another mans bread.

The state - e.g. suspected terrorists interest in freedom will conflict with the states interest in security.

Usually dealt with by substantive laws I.e. theft laws.

Conflict of interest between individuals and the state are dealt with by procedural laws I.e Terrorism Act 2006.

Case at European Court of Human Rights.

- fertilisation case - woman and a man froze eggs to have a baby but then broke up. She wanted the baby with his sperm but he didn’t. -> court went with man’s side.

- cricket field next door to housing. Cricket ball kept flying over fence and breaking items in garden so wanted an injunction to stop cricket being played there. -> court didn’t allow because cricket was a social sport and there before the housing. but could compromise, compensation was given.

Courts are reluctant to interfere to cases with contract law as contract law is about agreement, so courts leave it to the two parties.

But may interfere where persons interests may need protecting.. i.e if someone’s in a weaker position.

E.G. Consumer Rights Act 2015

Attempts to give a just balance by giving protection to a customer when dealing with a business, which may be more powerful.

A factory was polluting a river by accident, unknown to the appellant, (due to an underground pipe burst). The river was protected by River (prevention of pollution) Act 1951. Courts held as a matter of public policy offence was of strict liability and therefore the appeal was dismissed and the conviction upheld.

European Convection on Human Rights (ECHR)

Article 2

The court of appeal held that tissue typing was not prohibited by the Human Fertilisation and Embryology Act 1990. House of Lords has to try and balance between the private interests of those involved and the wider interests of the public ... sanctity of life.

1) right to life

2) prohibition of torture

3) prohibition of slavery and forced labour

4) right to liberty and security

5) right to a fair trial

Deterrent sentence may sacrifice the interest of the particular defendant to those of society.

E.G. a custodial sentence may be given when the offence does not warrant one.

The judge must balance the competing rights of the individual parties in an attempt to find a just solution.

Realist school of thoughts hold : - the reason judges disagree and rely so heavily on precedent and legal argument is because there is not really a right answer in most legal disputes; instead there are only different; subjective opinions.

Precedent and statutes are not sufficient to determine the correct legal outcomes, and often the judgement is a matter of a particual judge’s political opinion.

Consensus theories are those that see people in society as having shared interests and society functioning an the basis of there being broad consensus on its norms and values.

Society works because most people are successfully socialised into shared values through the family and education.

Beloved in the importance of the presence of consensus as it provides people with an understanding as to the forms of behaviour and conduct that are acceptable and those that are not.

Theory suggests that most people commit deviant and criminal acts but only some are caught and berated, ostracised or punished for them.

These individuals are stigmatised for their behaviours.

We regard those who are catabolised as ‘criminal’ as somehow different from the rest of us.

Conflict theory is completely the opposite of consensus theory. The conflict theory of Karl Marx claims society is in a state of perpetual conflict due to competition for limited resources. It holds that social order is maintained by domination and power, rather than consensus and conformity.