Structures I haven’t learnt

• Balancing competing interests

  Definition- an interest is similar to a right, most rights come with corresponding duties/responsibilities

  • Whose interests:
  • Gov, balancing competing interest of taxpayers money and deciding where legal aid is most important (crim law) as peoples freedoms removed to balance competing interest further, means test and merit tests are used to ensure there’s a balance
  • Businesses- competing interest between trader who wants money and high profits and consumer who wants good quality safe products, law balances conflicts by virtue of CRA implementing implied terms
• Balancing competing interests p2

  Who interests:

  • Public- balancing interest between public wanting to pay little tax as possible, but Gov needing the money for funding things such as legal aid, police
  • Private- private competing interest such as Miller V Jackson (private nuisance against Cricket club because balls often landed in C’s garden) court refused injunction because of competing interest between people enjoying club, they balanced it with remedy of damages
• Balancing competing interests p3

  Ezra pound- argued law should have more context, regarding law as an engineering tool, a form of social control to engineering balance between different interests within society e.g. smokers been non-smokers, tax on cigs to offset cost to NHS

  • Cases:
  • moorcock- caught me imposed terms into a contractor engineer balance and insured business efficacy
  • CRA- consolidates other consumer protection laws and attempts to achieve a balance by giving protection to consumers under section 51 and 62 when dealing with a business which is a powerful position
• Balancing competing interests

  Examples

  • Pace 1984- police want to investigate an arrest but have a private interest in no self incrim e.g. a duty solicitor balances it as archie allows for a duty solicitor even if you can’t afford it to stop self incrim
  • Intoxication- defence limited in order to keep people safe from harm (public interest) and the private interest taken into account by allowing the defence at all
  • Majewski balances the competing interest by only allowing it for specific intent offence and not basic intent
• Law and Justice


  Definition- justice is described by synonyms such as fairness, equality or even handedness, there’s three different theories

  1. Disruptive Justice- concerned with the fair allocation of the benefits e.g. money, property, responsibility, the theorist of this is Thomas Aquinas who argued the idea of fair allocation of goods was governed by the principal of dupe proportion meaning people receive what they are due by merit
• Law and Justice p2

  2) utilitarianism- the doctrine that actions are right if they are useful and benefit the majority, theorist of this is Jerremy Bentham who argued the more action increases overall happiness, the more valuable it is, and the more it decreases happiness, the more reprehensibility it is. He also said the maximising happiness is the key object of justice.
• law and Justice p3

  3) Social justice- the ability that people have to realise their potential in society, concerned with everyone having equal rights, theorist John Rawls he said each person would have equal rights to schemes of basic liberties and that social and economic inequalities exist but only where they benefit the least advantaged members of society and provide that all positions are open to everyone
• Law and Justice p3

  Extent to which the law achieves justice (say why, examples create equality)

  • Procedure justice- concerned with making an implementing decisions according to fair processes e.g. legal aid allows everyone to access justice (apart from family cases where there is no legal aid)
  • Corrective justice- when law restores imbalance that’s occurred, negligence, the aim of compensation is to put claimant in pre-tort position contributory negligence can reduce damages (Jebson v ministry of defence)
• Law and Justice


  Substantive justice- the content of the law itself must be just, an exclusion clause must be brought the claimants attention before entering a contractor provide fairness to both parties (olley V malbrough court hotel)