#19816 - Aqa 15 Mark Topics Morality^J Justice^J Society^J Fault^J Theory - AQA A-Level Law (with Contract Law)

Non-substantive evaluation 15 markers overview

Topics:

• Internal general structure and tips for AQA A-Level Law 15 markers

• Law and Justice

• Law and Morality

• AQA: Law and Society

• AQA: Criminal theory

• AQA: Tort theory

• AQA: Contract theory

• AQA: Human Rights theory

Internal general structure and tips for AQA A-Level Law 15 markers

General information

The 15 markers should always have the following instruction, this is important: ‘you are required to provide an extended answer which shows a clear, logical and sustained line of reasoning leading to a valid conclusion.’

There will usually be 10 marks for the evaluation on the theoretical topic and 5 marks for the evaluation of this topic concerning a substantive/practical part of the law.

You must address both parts of the question, and you must allocate the appropriate time/wording according to the marks (so write more about the first part as it is 10 marks, and write less about the second part as it is 5 marks).

For the first part (10 marks):

Answer the question/statement: tick off each instruction/topic word to make sure you have covered it (eg explain, meaning, importance, cause, effectiveness, etc).

• Define the key terms/theories.

• Make an evaluative/analytical point in relation to what the question is asking. Give an example/theorist for the points to highlight why it is valid/provide further information. Explain the example to show how it supports your point. Take the examples from any area of the law, whatever example you can best develop. Even if the question in the second part specifies only to apply to a certain legal area, you do not need to do this in the first part of the question.

  • From a previous examiners’ report: ‘answers could undoubtedly have been stronger and more comprehensive had they incorporated examples drawn additionally from other areas of law in the first part of the question, opening up the possibility of examination of a broader range of interests, and so a deeper analysis of the role of the law,’ so that examples of law in the second part of the question would not be repetitive and could provide further evaluative value.

• Repeat the above steps for more points, in order to fully answer the question/statement.

  • From a previous examiners’ report: ‘For instance, in relation to the decision in R v R, some students simply asserted that the case demonstrates that there is a moral dimension to the law. They did not explain why or how this might be so.’

• Give a solid, rounding-up conclusion that is ‘valid’ – link the conclusion to the points made, do not introduce anything new in the conclusion, just summarise the points.

• Check the conclusion and paragraphs match, in order to build a ‘clear, logical and sustained line of reasoning.’ Make sure you answer the question/statement through analysis and knowledge.

For the second part (5 marks):

Answer the question/statement by evaluating the theory discussed in the first part in the context of the substantive/practical part of the law that is identified in the question. So, compare/analyse/evaluate/etc how the substantive law interacts/highlights/contradicts/etc (whatever the key instruction words are) with the theoretical part.

• Identify a specific area of the law (eg a section in legislation or a certain case).

• Explain and evaluate how this interacts/highlights/contradicts/etc (whatever the key instruction words are) with the theoretical part.

• Repeat the above steps for other elements of the law.

  • From a previous examiners’ report: ‘Better answers were able to identify those aspects of the Act which have a connection with moral rules. For example, the idea of a common duty of humanity and the recognition that it was right to protect trespassers from dangers that could cause injury, or the additional moral duty to see that children were protected. Alternatively, some argued that, although the Act went against moral rules by protecting those who had no right to be there, s. 1(3) of the Act lays down requirements that have to be met before the occupier becomes liable and that any occupier who meets those requirements should be liable given their level of knowledge and fault.’

Law and Justice

Definition: Lord Lloyd justice 'is a moral value... in order to attain the good life.'

• Where is justice found? Perelman: to each according to their work, needs, merits, rank, legal entitlement, to each equally.

• Example: Berriman.

• Types: Procedural/formal - law must follow fair rules. Substantive - law must treat individuals fairly/fair outcome.

Concepts

Law and justice are synonymous: 'Unjust law is not law' - lex injusta non est lex. Natural justice.

Law and justice are linked: Rule of Law - people are subject to (fair) laws.

Aristotle - says that law should achieve distributive and corrective justice. Example: distribute wealth based on merit/must be proportional. Limitation: doesn't account for people who cannot work, like with some disabilities.

Promotes individual justice:

Kant - promotes moral justice, says that law should be based categorical imperative and treat everyone individually with respect and dignity. Example: human rights (European Convention on Human Rights). Limitation: difficult in practice because it can lead to absurd situations where you promote one person's rights over another.

Rawls - promotes social justice, says that law should promote equality and liberty regardless of circumstance by applying the 'veil of ignorance'. Limitation: purely hypothetical as it is impossible to restart society.

Versus promotes group justice:

Bentham - promotes utilitarianism, says that law should achieve the greatest good for the greatest number. Limitation: disregards human dignity and individual rights.

Promotes equal distribution:

Marx - says that law should achieve a different type of distributive justice, so distribute wealth regardless of wealth. Example: everyone deserves everything equally. Limitation: human nature will never allow everything to be fair.

Versus promotes no distribution:

Nozick - promotes entitlement theory of justice, says that law should not intervene in individuals' situations, meaning less intervention by the state. Example: no taxation. Limitation: very unfair and selfish.

Case examples

Access to Legal Aid - UK cut legal aid funding in LASPO 2012. Therefore, there is less legal aid in the UK. This means less people can go to court because of barrier costs. Is this just?

• Marx - not just because everyone should have the same right to access to justice.

• Kant and Rawls - not just because the law should achieve moral and social justice, so everyone should be treated with respect. By not providing legal aid, the law alienates vulnerable people.

• Nozick - just because the law should not interfere and redistribute rights.

Negligence duty of care - the Caparo test applies to establish duty of care. This is 3 steps: 1) reasonable foreseeability (Kent v Griffiths), 2) proximity relationship (Bourhill v Young), 3) fair, just and reasonable (Hill v CC West Yorkshire Police and Robinson). Is this just?

• Bentham - the third part of the test is just because Robinson, by saying that public authorities can be sued for acts, means that on balance, the third part will most often achieve the greatest good.

• Aristotle - the third part of the test is unjust because Hill, by saying that public authorities cannot be sued for omissions, means that corrective justice cannot be achieved.

Law and Morality

The distinction between law and morality

There are legal rules and moral rules.

Legal rules = rules created by authority within a given jurisdiction.

Moral rules = a set of expectations concerning behaviour which is right or wrong.

John Salmon said that law may be defined “as a body of principles, recognised and applied by the state in administration of justice”.

Phillip Harris defines moral rules as “principles affecting standards of behaviour”.

• Legal rule that is not a moral rule: driving at 32 miles per hour in a 30 / strict liability cases (mens rea is missing).

• Moral rule that is not a legal rule: 'good samaritan rule' / adultery.

• Legal rule that is a moral rule: murder.

Natural law says that legal rules should be derived from

moral rules. Thomas Aquinas.

Legal positivism says legal rules should be set by the 'recognised legislative power of the state'. Prof HLA Hart. Jeremy Bentham supports this from a utilitarianism point of view (purely what is the law).

The diversity of moral views in a pluralist society.

Example: religious conflicts from a theoretical point of view.

Example: conscientious objection in the UK armed forces. R

v Lyons (2011) shows the conflict between moral and legal rules, and how in

this case, the legal rules prevail.

Example: abortion. Open Door Counselling and Dublic Woman

Well Centre v Ireland (1992).

Pluralist society: a diverse society, where independent,

different moral beliefs co-exist and tolerate one another in one society.

The relationship between law and morality and its importance.

The relationship is close:

• if the legal rules are based on a certain morality system.

• legal rules and moral rules often involve a sense of right and wrong/setting standards.

The relationship is more distant:

• legal rules are enforced through the law and law enforcement/carrot and stick method, whereas moral rules are sometimes enforceable through 'soft' measures like societal norms.

• Legal rules can be changed instantaneously through official procedures like submitting legislation amendments through Parliament, whereas moral rules are changed often over time through a shift in...