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Summary notes for the question 9 essay
provides a summary of all you need to do the first 10 marks of the essay on society which is always question 9 and could come up in any of the three exams
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Q9 – societySociety
- A group of people with a common territory, interaction and culture
- Individuals share culture, language, beliefs, values and behaviours
- Not every individual will share everything in common e.g. India has 780
languages
- The UK
- Pluralist society (a form of society in which members of minority
groups maintain their independent cultural traditions) – but they
remain part of society as a whole
- No one single group is considered more important than another
- This requires tolerance from everyone
- The rule of law (Dicey) can’t exist without a transparent legal system
- Absence of arbitrary power on part of the state (government must
follow proper rule of law)
- Equality before the law
- Supremacy of ordinary law
- Lord Tom Bingham said in his book The Rule of Law:
- “that all persons and authorities within the state, whether public or
private, should be bound by and entitled to benefit of laws publicly
and prospectively promulgated and publicly administered in the
courts”
- Bingham’s 8 principles which society, the state and the judiciary must
embrace
- These principles result in certain roles for law in society:
- to protect people from harm – don’t speed – protects from
crashes
- to ensure a common good – facilities for education and
healthcare
- to settle arguments and disputes (civil)
- these roles result in regulating and controlling the society and make a
balance between competing interests within society. These principles
and roles highlight the importance of fault as a basis for law in society.
Social control
- social control is about balancing the interests of different sections of
society
- informal – family, peer groups, local community, religion
- formal
- criminal justice system - police, judiciary, probation, prison services,
law makers – parliament (acts of parliament and delegated legislation)
- civil justice system (tort and contract)
- without social control = anarchy
- social control should protect those less able to protect themselves –
children, disabled, those who are ill
- e.g. occupiers liability – gibbons v proctor, criminal justice act,
consumer rights act, thin skull rule (Blaue), diminished responsibility
- entails rules of behaviour that should be followed by the members of the
society
- some are “good manners” – desirable but not compulsory
, - some are enforced by law
- some areas of law are confusing – inconsistent + open to
interpretation – e.g. s18 and s20
balance between competing interests
- tested in contract law
- but it is to be considered in criminal and tort
- tort - balance of competing rights to enjoy your own land
- criminal - balance of competing rights – protect the vulnerable + D claims
diminished responsibility vs the victim
balance of competing interests in contract law
- in any contract there are 2 obvious interest – the two parties to the
contract – each party wants the best deal possible
- however, they are rarely acting as equals in negotiations – law recognises
this by categorising parties as consumers or traders – consumer rights act
2015
- third parties could also have potential interest in a contract where the
subject matter of the contract may benefit them
- conflict arises from the desire of a stronger party to dictate the terms of a
contract – comes with respect to written terms in a contract or from the
principle that only a party to a contract can take legal action upon it
- conflict can be mediated through legal mechanisms such as:
- implied terms in contracts between traders and consumers through
the consumer rights act 2015
- law controls the way in which sectors of society can impose their
will and profit from others through legislation such as the
consumer rights act 2015
- the consumer rights act 2015 brings together rights and
remedies available to consumers when making a contract with a
business
- when problems arise, disputes should be sorted out more quickly
and cheaply – the difficulty is many consumers do not know their
rights and some businesses try to avoid their duties
- by regulating the legal effectiveness of exclusion clauses in contracts
not covered by the consumer rights act 2015
- this applies to non-consumer contracts
- example is a rental agreement on a flat or a house – there is
often an imbalance between the parties and successive
legislation has failed to prevent illegal actions and unfair
contracts imposed by “rogue landlords”
- the judiciary has moved from the idea of freedom of contract as
seen in L’estrange v Graucob to find ways of reducing or
extinguishing the effect of some exclusion clauses, particularly
those contained in notices with decisions such as Olley v
Marlborough Court Hotel
- the contracts (Rights of third parties) Act 1999 – FINISH
- judicial creativity with respect to remedies
- the law states that only a party to a contract may sue on it and
gain a remedy
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