law and society - fault

• Law and Society


  Considers how law and society work together
• Society


  Reflects a group of people that share territory, interaction and culture (e.g., language, beliefs, values etc.)

  However, there are differences as everyone does not experience the same territory, interaction and culture. This makes society unique, but complex.

  Due to increased movement of people, society is now formed up of many cultures.
• Society - Pluralism

  Society now consists of many minority groups that maintain their independent culture, while being part of society as a whole.
• Assimilation


  Minority groups will often assimilate into wider society to fit in. This is where individuals may drop certain cultural traditions to align better with the dominant culture (e.g. by dropping certain cultural traditions to align better with the dominant culture).

  This does not mean that they give up on all their traditions e.g. Chinese communities celebrate the Lunar New Year.
• Lord Bingham's 8 Principles to Ensure Sound Operation of Law and Society


  • The state must follow domestic and international law
  • People can only be sentenced from crimes which have been made illegal
  • An infringement of rights needs to be assessed using the law
  • The law should be accessible, clear, precise and open to public scrutiny
  • Everyone should be treated equally
  • There needs to be respect for human rights
  • Courts need to be accessible and affordable, with delays avoided where possible
  • Issues need to be resolved without excessive costs or delays
• Social Control


  Looks at how our behaviour, thoughts and appearances are regulated by norms, rules, laws and social structures in society
• Types of Social Control

  • Informal social control (family, peers, local community etc.)
  • Formal social control (criminal justice system, law making etc.)
• Roscoe Pound's Social-Ethical Principles of Law and Social Control


  • It identifies and explains human claims, demands, or interests of a given social order
  • It expresses what the majority of individuals in a given society want the law to do
  • It guides the courts in applying the law
• Fault


  Looks at the idea of blameworthiness and ensuring the 'wrongdoer' takes legal responsibility and gets assigned punishment.

  In criminal law, there is a general presumption that someone should not be held criminally liable where they are not at fault.
• Mens rea


  Shows 'fault' through showing what was in someone's mind when they committed an act. This can determine whether something was just accidental or an offence (e.g. negligence is the lowest level of fault - R v Adomako).
• Actus reus


  Needs to be voluntary to establish fault. If someone fails to act (omission) when they have a duty to act, then we can impose fault and liability on that person (e.g. R v Miller)
• Robert Nozick's View of Social Justice


  Justice can be acquired, transferred and rectified where there has been injustice. For example, if someone acquires property through fraud or theft, there should be a way to rectify this injustice
• Procedural Justice


  This is concerned with making and implementing decisions according to fair processes
• Legal aid is an important part of social justice, and it helps people access their right to justice. However, the availability of legal aid funding is dwindling (e.g., the removal of aid for 'social welfare law' which includes benefits, employment, housing, immigration and family). This therefore impacts a person's right to a fair trial and there are concerns about increased risks of miscarriages of justice
• Corrective Justice


  This is where the law restores the imbalance that has occurred between two individuals or an individual and the state (through sanctions and damages)
• Society 


  Although there should be no single culture seen as being more powerful, this is often not the case. Unfortunately, society will be filtered with prejudice and discrimination to keep certain groups from becoming more dominant.

  It is therefore the laws' role to regulate how society functions.
• Causation


  We want to ensure that we a blaming the correct person for the offence. We also need to ensure that we are attributing the correct blameworthiness to a guilty person (e.g. R v White - proved it was just attempted murder)
• Defences


  The fact we have defences also acts as an extra layer of protection in identifying the correct level of blameworthiness (e.g. self-defence, and the partial defences to murder).
• Strict liability + absolute liability offences

  The recognition of a person committing the actus reus element means that finding fault/blameworthiness is not necessary (e.g. Callow v Tillstone). These offences tend to be regulatory and aim to protect society.
• Sentencing


  Where someone is culpable (deserving blame), then this will affect the level of fault and sentencing given (e.g. R v Clarke).