Law and Society

What does Roscoe Pound believe

What did he write

What view does he support

Wrote the book "Social Control through law"

Stated that the law should have social control to assert or realise human potential.

Believed individual, public and social interests all overlap eg Increase in Litigation is due to behaviour being less influenced/controlled by family + religious institutions

- Law is now the dominant agency of social control

He supports the view that law does have the power to influence and change society

Argument for law controlling society

- Some laws are initially controversial but overtime accepted and recognised as beneficial

eg ban on smoking indoors - health benefits, legalising of LGBT

What happends when the law is weak

Social control fails,

- Rules may be changed with society's views eg

- The is applied inconsistently and falls into disrepute

For law controls society

- When the law affects a small amount of people, it becomes less public importance + possibility of change is diminished, and inconsistencies are seen as "one of those things" eg traditional view of suicide being illegal due to sanctity of life eg R v Nicklinson

Contrary to Pounds view

When the law is weak, unenforced social control fails

eg underage drinking/sex

What did Durkheim believe

Functionalist view

Law is a boundary making device with the purpose of

1. Defining Sanctions

2. To prescribe punishment to deffer us away from creating social instability

Social stability is created + maintained by its legal structures

1. Repressive law - criminal law - to punish + enforce conformity

2. Restitutive law - civil law - to repairr harm + restore social balance

Pluralism

Form of Society where minority groups Maintain their independent Cultural Traditions

- A Pluralist supports the existence of different types of people, beliefs and opinions

Assimilation

Groups seeking to become part of a pluralist society

Multiculturalism

Where a group retains its original heritage but still integrates in the UK

Lord Binghams Principles

The rule of law requires a transparent legal system

8 Points essential to the Rule of Law

1. Law must be accessible, intelligible, clear + predictable

2. Questions of legal right + liability should be resolved by the application of the law

3. Laws should apply equally to all, apart from when objective differences justify differentiation

4. Law must adequately protect fundamental human rights

5. Law must provide means to resolve civil disputes they are unable to resolve themselves, without excessive cost/delay

6. Minister+ public officers must exercise power reasonably + in good faith, none of them are above the law - R (Miller) v The Prime Minister

7. Adjudicative procedures provided by the state should be fair

8. The state must comply with International Law

The Roles of Law in Society

1. To protect people from harm

2. Ensure a common good

3. Settle disputes regarding finite resources

4. Persuade people to Do the right thing

Two types of Social Control

Informal - occurs through family, friends, local community or a societal group

Formal - Occurs through groups with the role of maintainig order in society eg

1. Criminal Justice System

2. Law-makers

3. The Civil Justice System

Two-way movement between Law and society

1. Law can shape social norms and behaviour

2. Society can shape the law eg protests, civil disobedience

The Role of the media

COMPLETE + SEPARATE

Explored in Stanley Cohens book

Pointed out if someone is acting in a way out of the typical in a society, the media tends to overreact. The more this behaviour is covered in the media, the more it becomes established - rather than stopping it they are helping it grow, forcing the government to act eg Sarahs Law, dangerous dogs act

Creates "Moral Panics" through sensationalism using 5 stages:

1. Something/someone identified as threat to morals/values

2. Threat is depicted in a recognisable form

3. Rapid build up of public concern

4. Response from authorities/opinion makers

5. Panic disappears or results in social change

Leads to Knee jerk reactions

eg Castlemorton Common Festival - Word was spread of a festival - Word was further + largely spread by media stories leading to a turnout of 20,000 people

Led to introduction of power to stop vehicles + turn them away within 5 miles of a rave from the CJPOA 1994

Social control in Criminal law

1. Self defence - ADD ABIT

No prosecution against disproportional force in Householder cases

2. Consent

R v Brown - Lord Templeman limited personal freedom to balance with Public Interest

R v Wilson - Lord Mustill gave rights to the individual to live life as they wanted

Social control in Tort Law

1. Bolton v Stone - Court sided with public interest of cricket club at the expense of victim

2. Miller v Jackson - Court had to weigh claimants interest of enjoying his home with the interest of D and the local community's interest of enjoying the open space

Roscoe Pound believed pubic interest should generally prevail

Theories of dealing with Consensus and Conflict

1. The Consensus theory

2. The Conflict theory

3. The Labelling theory

Consensus theory

Believes each part of society has a role to ensure society runs smoothly eg schools have a job to ensure people are educated to be good at a job after school

- Also believe society is based on agreement, we are all socialised on what is appropriate behaviour + what is right and wrong

- Durkhiem - Created Functionalism, a form of Consensus theory + agrees with consensus theory

Problems with Functionalism, a Consensus Theory

1. Rose tinted glasses - assumes all institutions work for the benefit of everyone, overlooking disagreement and diversity of values and norms

2. Assumes there is Consensus in society - overly positive, harmonious view of society ignoring conflict, inequality and injustice

3. Doesn't suggest how law should operate - assumes the current legal system is good because it works, not because it is just

- May justify laws that are morally wrong, just because they maintain social order,

The Conflict Theory

Karl Marx' theory

Suggests Society is in a state of constant conflict due to competition for limited resources

- Social order is maintained by domination + power rather than consensus

Problems with the Conflict theory

1. Assumes us vs them approach - sees laws as a tool of oppression used to suppress the poor

2.

The Labelling Theory (interactionism)

Suggests most people commit crimes but we regard the few that are caught as different from the rest of us

- When sufficient people of similar age, race etc commit this behaviour, they become stereotyped to society

eg Stop and search powers - BAME people are 4 times more likely to be stop and searched

- Not the intention of the law makers, but is caused by the law enforcers

Problems with Labelling theory

Labels are created by societies response, not the law itself

2. Overemphasises power of labels - Ignores those who have successfully reformed/reject their label

House of Commons Recommended changes in the Magistrates Court

1. Only 12% are of BAME background - More are needed

2. 52% are over 60 yet most offenders are 18-25 - Magistrates need to be aware of the different facts of life in different communities

Shows a fair balance between State and Society

Access to justice and society

In theory all citizens in a democratic society have a right to access to justice

- However exercising this right is difficult for those less confident and articulate or cannot afford a lawyer eg cuts to legal aid, increased costs etc

- Campaign groups and Professional bodies eg the Law Society campaign for the improvement of access to justice for all regardless of wealth or background

- Such campaigns show the law is not reflecting the needs of all of society

Legal Realism

View that we should understand the law as it is practised in courts + police stations rather than as set out in statute

- Define law as a generalised prediction of what

- There can never be certainty of the law as law is connected with society + society changes faster than law

- Only Regard Judge-made law as genuine law, ignoring law enacted by parliament

Oliver Wendell Holmes Jr - If the law was merely a system of rules, we would not need lawyers because judges could just apply the law. However judges have discretion and the outcome is not certain until the final judgement is given

Left Legal Realism

Believe main causes of crime are:

1. Relative Deprivation - People commit crime as they feel relatively deprived and social media put pressure to keep up with the latest products

2. Marginalisation - Where people lack the power/resources to fully participate in society

eg unemployed youths lack a clear goal + organisations to represent them, leading to resorting to crime + violence

3. Criminal Subcultures - Groups prepared to resort to crime for money as a result of Relative Deprivation + Marginalisation

Solutions to crime:

- Providing employment with living wages, affordable housing all reduce Deprivation and the need to commit crime

- Crime control being a shared responsibility including schools rather than just the police will reduce Marginalisation

- Reducing Deprivation + Marginalisation leads to Criminal Subcultures being less likely to develop

Right Realism

Causes of crime:

1. Rational Choice Theory - Believe Individuals make a Rational Decision to commit crime, If chances of being caught are low or punishments are light crime is more likely

2. Broken Window Theory - Poor social control, lack of discipline, weak policing all lead to higher crime rates

Solutions to Crime:

1. Environmental crime prevention - Making neighbourhoods more crime-resistant eg more police roaming, zero-tolerance approach to minor crime

2. Situational crime prevention - Buildings more secure + more CCTV