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)

HideShow resource information
Preview of Concepts of Law; Unit 4 - Notes

First 336 words of the document:

Law and Morality
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 of a set of rules
"The body of principles recognised and applied by the state in the administration of Justice (John
A command issues from a sovereign power issued to an inferior (John Austin)
Moral Rules:
Derives from the Latin `Mos'
Society's `code of morality' is a set of standards of behaviours, value and beliefs (Phil Harris)
The standard meaning of the work is a custom, habit or usage that is determined by mans will rather
than law
Custom formed basis of a code of conduct which reflects the expressed wishes of society, and which
members of society accept in large measure
As "we live in a pluralistic society, it is almost impossible to define a set of moral values" which
everyone shares universally (Durkheim)
Characteristics of Legal and Moral Rules:
Both sets of rules have certain characteristics that help to identify them and distinguish them from
each other
The Origin:
Legal Rules: It is possible to trace legal rules back a source, naturally common law that's been
developed incrementally by judges
Moral Rules: Morality is based upon religious teachings and the upbringing, peer views and own
leanings of the people concerned with it
Enforcement and Breach:
Legal Rules: Breaking the law results in punishment of some form
Criminal law ­ Sanctions
Tort ­ Damages
Contract ­ Damages
Moral Rules: A variety of sanctions may also be available of breaching moral rules; they are however
normally unenforceable
Disproval or Ostracism

Other pages in this set

Page 2

Preview of page 2

Here's a taster:

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, this is only clear in hindsight when we notice the
degree of change
Certainty of Content:
Legal Rules: It's possible to discover what is in the law simply by looking the Act or case law;…read more

Page 3

Preview of page 3

Here's a taster:

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 over the country
Influence of Law and Morality upon Each Other:
Long established legal rules influenced by moral rules:
Murder and Theft ­ 10 Commandments
Changes in moral values can lead to developments in the…read more

Page 4

Preview of page 4

Here's a taster:

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 within the universe
2. Divine Law: Concerned with the standards man must conform to in order to achieve salvation,
these are revealed by inspiration or revelation
3.…read more

Page 5

Preview of page 5

Here's a taster:

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...…read more

Page 6

Preview of page 6

Here's a taster:

People have the right to respect other private life (Hart)
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)
Wilson, a similar case but the victim did require hospital treatment, D was acquitted as it
wasn't worth of prosecution
St George v Healthcare:
An adult of sound mind is entitled to refuse medical treatment…read more

Page 7

Preview of page 7

Here's a taster:

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:
The general rule is there is no liability for a failure to act; there can however be a time when omitting
to act puts D at fault:
Contract (Pitwood)
Assuming responsibility (Stone and Dobinson)
Causation maintains the…read more

Page 8

Preview of page 8

Here's a taster:

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 (Elliott
v C)
Involuntary Manslaughter:
D need only have the mens rea of the unlawful act which may be as little as batter (Mitchell) for
unlawful act manslaughter
As recklessness is subjective, it seems hard…read more

Page 9

Preview of page 9

Here's a taster:

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 CCWD)
Occupiers Liability:
Occupier is liable depending on their failure to take proper precautions to ensure the safety of lawful
visitors and trespassers
There is no liability when C is at fault for taking such…read more

Page 10

Preview of page 10

Here's a taster:

There are many cases where a person can be held liable even they look blameworthy less and don't
appear to be at fault
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 death (Adomako)
D need not have the mens rea to cause ABH or GBH; GBH only require intention or recklessness as to
some harm, and ABH is intention or recklessness as to common assault…read more


No comments have yet been made

Similar Law resources:

See all Law resources »See all resources »