Law & Society

• Introduction - What is the role of the law? (A01)

  (1) A society is a group of people with a common territory, interaction & culture. They do not need to share every aspect of their culture, which is seen in the UK's pluralistic nature.

  (2) The main role of the law is to protect against the exercise of arbitrary power (rule of law).

  (3) It must protect from harm (OAPA 1861), ensure common good (Article 5 ECHR), promote a civil justice system that resources disputes - as discussed by Marx & Aristotle - and persuade people to do the right thing (Negligence).

  (4) The law acts as a social control mechanism, and regulates behaviour through formal sanctions e.g custodial sentences.

  (5) This idea was emphasised by Roscoe Pound, who argued the law is a form of 'social engineering' desired to balance the competing interests between the individual and society.
• Paragraph 2 - What is the theory of Left Realism? (A01)

  (1) Left realism is derived from a conflict theory - deviance repressing - first put forward by Marx.

  (2) Society is in a state of permanent conflict due to competition for limited resources. The most marginalised groups of society commit crime as they see this as the means needed to no longer be deprived. The law is used to suppress the poor and achieve social control.

  (3) If the law is unchecked, it will prioritise the interests of the wealthy and repress deviance in a way that preserves the power of the wealthy.
• Paragraph 3 - Left Realism & Juries DO Achieve SC (A03)

  (1) LR argue that the justice system must be fairer to avoid conflict & achieve social control, and juries are the most democratic element of our justice system [Michael Mansfield KC]. Juries are a formal agent of social control, and prevent disorder in a fair way.

  (2) They prevent disorder by imposing a sanction (verdict) after deliberating. Juries are fair as they are laypeople - a defendant is facing trial by their peers. This part of the process is free from influence of the powerful as the Criminal Justice & Courts Act (2015) makes it a criminal offence to disclose statements made/votes cast.

  (3) They are also impartial - they are selected from various parts of society (cancel out biases) [R v Fraser]. When deciding, they will not be prioritising the interests of the wealthy, and will be deciding based on evidence and arguments presented, meaning the system is fair and SC achieved.

  (4) This also fits with Durkheim's view of the law as a 'boundary maintaining device.
• Paragraph 3 - Left Realism & Juries DON'T Achieve SC (A03)

  (1) It could be argued that due to jury equity & the perverse decisions this may lead to, they do not achieve social control. As they are laypeople, they are not bound by their past decisions, and can opt to not convict based on their idea of fairness (R v Kronlid).

  (2) This was seen in R v Owen - The defendant was not convicted of attempted murder after attempting to kill his son's negligent killer, who he believed had received a lenient sentence. Despite the elements of the offence being satisfied, they did not convict for moral reasons.

  (3) Though this prima facie seems fair due to the circumstances, it shows the law does not achieve social control as crimes are not punished. There was no sanction imposed and so behaviour was not regulated. Moreover, this type of sentencing could lead to inconsistency.

  (4) Moreover, this leads to inconsistency as the law is not applied the same and thus is not predictable as the rule of law dictates it should be.
• Paragraph 4 - What is Right Realism? (A01)

  (1) RR on the other hand, blames the individual & a lack of socialisation for crime. It is a consensus theory put forward by Durkheim, that argues society only functions when people are socialised into accepting shared norms & values.

  (2) When these are not transmitted properly, people will make the rational choice to commit crime. It is also a conformity theory - believes the law should punish those who do not conform.

  (3) To achieve SC, the law should be tough on criminals, and balance the competing interests of between the defendant & society.
• Paragraph 5 - Right Realism & Law on Murder DOES Achieve SC/Balance Interests (A03)

  (1) In R v Vickers, it was established that the mens rea for murder is: 'where the D intended to inflict GBH, and the victim dies, this is sufficient enough to imply malice aforethought' meaning defendants could be convicted for murder even if they intended GBH.

  (2) This shows a RR approach as it is harsh on criminals - even if the intention was not murder, a person has died and thus the law should be harsh & punish the offender. This achieves SC as the person is punished for breaking norms & the law.

  (3) People are not socialised to engage in violent behaviour, and this does not protect or prioritise the rights of society, thus severe punishment is needed.

  (4) This is also seen with the defence of DR. This puts the burden of proof on the defence to prove that the defendant was suffering from an AMF that caused them to commit the crime - the burden of proof is high as it reduces the defendants conviction.
• Paragraph 5 - Right Realism & Law on Murder DOES NOT Achieve SC/Balance Interests (A03)

  (1) It does not effectively balance the interests between the defendant & society and could be said to be disproportionate.

  (2) Disregarding the intention and convicting people of murder when they intended GBH is harsh, and prioritising the rights of victims & society.

  (3) Though punishment for such crimes should be severe to prevent disorder, it should not be this severe and should take into account other factors - e.g in self defence.

  (4) The rational choice to commit the offence may have been to inflict GBH, not commit murder however the person will be severely convicted for a lesser breaking of the norms.

  (5) In R v Martin, the defendants mental illness was not taken into account when deciding if the force used was excessive due to the precedent set in R v Oye. His idea of reasonable force was different but was still convicted.

  (6) Lead to inconsistency in the application of murder & shows that it does not balance interests.
• Paragraph 6 - Right Realism & The Law on Consent DOES Achieve SC [Alternative Paragraph] (A03)

  (1) The high burden of proof in the law of consent shows a RR approach & shows the law achieving social control.

  (2) This was seen in R v Brown, where the defence was not allowed despite the people both consented and there were no permanent physical injuries or medical attention needed. Thus more, the law states that people are allowed to 'batter and assault each other for sexual gratification, but not if this results in ABH or GBH.'

  (3) The defendants not being allowed the defence, despite their injuries not being severe, shows the law achieving social control as those who broke societal norms were held liable and not allowed to use a defence.
• Paragraph 6 - Right Realism & The Law on Consent DOES NOT Achieve SC [Alternative Paragraph] (A03)

  (1) Law on consent clearly conveys the issues of the RR approach as it ignores the pluralist nature of the UK. This will lead to inconsistency and discrimination in the law.

  (2) This can be seen in the cases of R v Brown & R v Wilson. In Brown, two men were engaged in sadomasochistic acts that they had both consented to, but were not allowed to use the defence. In Wilson, the defendant - at the request of his wife - branded his initials on her buttocks, and was allowed the defence despite the severity of her injury.

  (3) This shows that severe punishments are not effective or just, and in trying to achieve social control, they have both imposed particular moralities & discriminated against defendants.
• Conclusion - Does the Law Achieve SC/Balance Competing Interests? (A03)

  (1) The law does act effectively as a mechanism of SC/balancing CI and seen with juries & the law on murder, which would satisfy utilitarians.

  (2) However, the limitations with juries & the mens rea for murder mean that the law can be harsh or not regulate behaviour effectively/balance interests.