#19835 - Ocr The Nature Of Law - OCR A-Level Law (with Contract Law)

The Nature of Law

Topics:

• Law and Justice

• Law and Morality

• Law and Society

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 beliefs and perspectives.

• Legal rules originate with organs of the state and are enforceable by courts, whereas morals originate from wider societal principles and are enforceable through ‘softer’, non-rigid concepts like social condemnation and/or internal guilt.

The importance of the relationship:

• They're similar so should be coherent.

• They have a reciprocal influence on one another.

• Abortion - when the law legalised abortion.

• Rape - R v R (1991).

• Any controversial issue.

The legal enforcement of moral values.

Rarely enforceable unless the laws are derived from the

moral values (in reality, this is usually from a certain state religion).

John Stuart Mill - 'harm principle' - moral rules should be

legally enforceable only when harm is done to others; 'the individual is

sovereign.'

Hart-Devlin debate

• Hart - the starting point is that society should not interfere with private moral or immoral conduct. It should only interfere in certain necessary situations.

• Legal paternalism - Devlin - exact opposite. 'Where the bonds of morality are loosened by private immoral conduct, the integrity of society will be lost and liable to disintegrate.' However, there should be some limitations.

Law and Society

The role law plays in society.

Law can control society by changing laws and attitudes (eg drug control, abortion, Road Traffic Act 1988 and seatbelts).

Society can influence the law through protests, strikes and civil disobediences.

Law plays 4 primary roles in society:

• Protects people from harm

• Ensures a common good

• Settles arguments and disputes regarding finite resources

• Persuades people to do the right thing.

It undertakes these roles not equally, which can cause conflicts, as evidenced in balancing competing interests and establishing fault.

Remember that law influencing society can cause problems in pluralist societies, where the moral values differ to the legal rules in certain...