Concepts of Law; Unit 4 - Notes

Notes made from a combination of resources including the Nelson Thornes text book and Philip Allan revision guide.

Covers the Concepts of Law section of the course; Law and Morality (Relationship and Enforcement), Fault (Fault Based Liability, No-Fault Based Liability, Fault in law) and Balancing Conflicting Interests (Theories, Procedural Law and Substantive Law)

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Law and Morality
Rules:
A general norm guiding conduct in a given type of situation (Twinning and Myers)
Rules are needed to:
Guide people through life
Protect people and their property
Enable society to function officially

Legal Rules:
All the rules of that state that govern our lives
Specific areas…

Page 2

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Ease of Change:
Legal Rules: Relatively easy to change as Parliament has the authority to pass any law it wishes
whenever it wants; Parliament is however often slow to respond to the need for change, but their
avoidance is limited (Williams v Roffey)
Moral Rules: Morals change gradually over time,…

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There is no liability in English law for omissions, unless there was a duty to act (Pittwodd), there is no
`Good Samaritan' requirement
Sometimes D will accept a moral duty exists but argue a legal duty doesn't (Webster)
Moral rules vary between different groups; legal rules are the same all…

Page 4

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The validity of law is not dependent upon its moral acceptability

Natural Law:
Believe the law should reflect morality
The validity of man-made law depends upon their compatibility with a higher, moral authority

Thomas Aquines:
There are four types of law:
1. Eternal Law: The highest law that governs everything…

Page 5

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The minority should not be made to conform to the will of the majority when in private (Tyranny of
the majority)
Using the law to enforce moral values is...
Unnecessary because society is able to contain many moral standpoints
Undesirable because it would freeze morality at a set point
Unacceptable…

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People have the right to respect other private life (Hart)
Brown:
Courts deem you can't consent over a battery unless it applies to an exception,
sadomasochism doesn't
Pleasure derived from the pleasure of pain is an evil thing, cruelty is uncivilised
Many people would have found D's conduct repulsive (Devlin)…

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Actus Reus:
An actus reus must be present to be at fault for a crime
The actus reus must be voluntary (Hill v Baxter)
D won't be at fault if he had no control over the act
There are defences available for not acting involuntarily:
Automatism
Duress
The general rule…

Page 8

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The more blameworthy the offence, the higher the degree of mens is required
There is a need for subjectivity in deciding the appropriate degree of fault needed in criminal liability
(B v DPP)
Ensures that liability is based upon fault, and will avoid the obvious injustice that can be caused…

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Liability is closely linked to the extent of harm caused
Contributory Negligence recognises that C can be partly at fault for the damage and will have a
corresponding reduction in their damages awarded (Jebson v MOD)
D can particularly contemptuous and C can be entitled to exemplary damages (Tredaway v…

Page 10

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There are many cases where a person can be held liable even they look blameworthy less and don't
appear to be at fault

Negligence:
D can be found liable without mens rea only when a duty of care exists,
The negligence must be so gross there is a risk of…

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