LAW: anybody want model answers for u:4/5

zeher

i do A2 law aqa and i have model answers for unit:6 and 4 and some for unit 5 -

is anybody interested?

Reply 1

Jon-Narc88

Yeah, do you have a model answer for balancing confilcting interests for MOD6. Im so stuck on it. :confused:

Ill take a look at morals and justice too if you got them :p:

Reply 2

zeher

ill post them tomarrow if i get a chance - no i dont have the conflicting interests

i have justic, law and moral, fault

Reply 3

zeher

here is law and moral model answer

Law, a set of rules and principles created and enforced by the state. Morals are a set of beliefs, values principles and standards of behaviour created by society.

There are differences between legal rules and moral rules. Law are created by formal intuition e.g. parliament. Morals evolve as a feeling within society. No formal creation exists.
Laws can be instantly made and instantly cancelled. It can exist one minute and the next it does not. E.g. when act is repealed. Morals form slowly and change slowly as society’s attitudes change. There is usually a slow transitional period e.g. society’s attitude to premarital sex.
A law either exists or it does not. Its existence can be established. Morals are much vaguer in definition. Although society is generally that certain activities are immoral, e.g. murder, as many issues society’s opinion is divided such as homosexuality.
Breach of law leads to some form of punishment or remedy enforced by the state. Breach of moral leads to some form of social condemnation but the state is not involved.
Society’s attitude to law is irrelevant. A law exists even if the vast majority disobey it. Morals are rules that reflect society’s values and beliefs. Therefore these values and beliefs are vital for the existence of moral.

There is overlap between law and morals. An example includes prostitution.

The area of law that will be discussed is euthanasia. Factors will be taken into account, the extent to which the law does and should enforce moral values.
Euthanasia is the bringing about of a gentle and easy death in the case of incurable and painful disease with the consent of the victim. English law forbids euthanasia. R v Cox.

There are many moral arguments both in support of legalising euthanasia and for maintaining it as illegal. An important case here is R (Pretty) v DPP
Arguments in favour of legalising euthanasia are as follow. It can be seen as merciful, Diane Pretty. It is strongly argued that people have the right to die how and when they want to.
The libertarian argument is, if it promotes everyone’s best interest and violates no one, then it is ok.
This argument may be harsh but it may become necessary for fair distribution of medical resources. Since it will also happen anyway so it therefore better to legalise it and regulate it properly. Death may not be seen as a bad thing for the people involved such as the victim and family members.

However moral arguments against legalising euthanasia should be taken into account as well.
There are religious arguments such as euthanasia is against the word and will of God. It also weakens respect for sanctity and undermines the value of suffering, illustrated by John Paul.
There is the slippery slope argument, which suggests to what extent do we allow people to have euthanasia? Is it for everyone? E.g. flu, sickness or just terminally ill?

Some argue that legalising it would mean that sick or disabled lives are worth less than others.
Euthanasia may not be in patient’s best interests
As euthanasia affects family members. These are third party rights. What if family members do not want their loved ones to die this way. These views should be taken into account as well.

There are three theories that deal with law and morality. The liberal view, Harm to others principle, John Stuart Mill, 1859. He suggests that the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others. His own good either physical or moral is not a sufficient warrant. Mill believed that the law should be used not to uphold a particular morality but to prevent harm to citizens. Preventing someone from harming himself is excluded by this harm to others principle.
Example of an existing law, which illustrates this theory, is standard criminal offences such as murder, non-fatal offences and manslaughter.
However, homosexuality between consenting males was decriminalised. Wolfenden Report said law is to preserve decency and protect people, not to interfere in private lives.

The Moralistic view, harm to society principle, Lord Devlin, 1950-1960. Devlin’s theory is that a recognised morality is essential to society’s existence. Individual liberty and freedom should be limited in order to protect the fabric of society. Devlin stated that society may use the law to preserve morality in the same way that it uses law to safeguard anything else that is essential to its existence. The theory is based on an objective morality, a common morality shared by all in society.
Example of an existing law, which illustrates this theory, is the defence of consent in non-fatal offences, R v Brown & Others.
However law is concerned with minimum not maximum standards. Consent is an example of this.

The Paternalistic view, harm to self and others view, Professor Hart, 1960s. He argued that the law should only intervene in the private lives of citizens to prevent harms to others and harm to oneself. He acknowledged the problem of defining harm and stated that it did not include moral harm to oneself.
Example of an existing law, which illustrates this theory, includes laws preventing methods of prostitution.
Paternalistic view focuses on individuals.

A reflection can be made of the theories about the relationship between law and morality in connection with euthanasia. The liberal harm to others view suggests that euthanasia should not be illegal. Moral harm to society view suggests euthanasia should be illegal and paternal view harm to self-view suggests euthanasia should be illegal.

Overall the law does not uphold the moral values of society in connection with euthanasia because euthanasia still remains illegal in UK. The arguments in favour and against resurfaced with the case of Dianne Pretty however the House of Lords still rejected her case.
However society means opinions of all in society. Therefore there are some people who still would like euthanasia to remain illegal, therefore their views should be taken into account as well and can be said the law does uphold the moral values of society in connection with euthanasia.

Reply 4

zeher

A fundamental principle in English Law is that “no liability without fault” meaning only people at fault should be liable. The principle is based on morality and justice. Only the blameworthy should be liable.
The aim of the tort is to compensate victim. Tort focuses on the blameworthiness.

Fault is a requirement of liability in most torts. Claimant must prove D was at fault. Fault is expressed within the elements of the tort, e.g. in the tort of negligence.
Firstly, Duty, D will only owe a duty of care if he satisfies the reasonable foreseeable test. Donoghue v Stevenson. Then breach, D need only exercise reasonable care rather than perfect care. E.g Bolton v Stone. Finally, resulting damage. D has factually caused the damage as illustrated by Barnett v Chelsea & Kensington Hospital Management committee. The type of damage must be reasonably foreseeable. The Wagon mound.

Defences can remove all of D’s fault such as consent as illustrates by the case of Murray v Haringay or some of D’s fault such as contributory negligence, Sayers v Harlow.

D might be liable in tort without necessarily being at fault. Strict liability and vicarious liability provide exceptions to the principle of no liability without fault.
Vicarious liability, the employer will be liable for the torts for his employees committed during the course of employment irrespective of whether the employer is at fault, Lister v Hesley Hall.

Strict liability torts, the Consumer Protection Act 1987 creates strict product liability. It is irrelevant whether the producer is to blame for the defect in the product. The Animal Act 1971 creates strict animal liability. It is irrelevant whether the keeper is to blame for damage caused by the animal.
In R v Fletcher, there is strict liability in relation to the escape. In private nuisance there is strict liability in relation to the indirect interference.

There are many arguments for having to prove fault in tort cases. Arguments in favour of a requirement of fault are,

Arguments in favour for a requirement of fault.
In practice the majority of torts do require some proof of fault. The fact that the claimant must usually prove fault limits the number of torts actions brought, preventing courts from becoming overloaded.

Tort does not require people to actively look after each other but only to avoid doing each other harm which they could have reasonably avoided. They should not be liable for any harm caused when they where not at fault. This would not be fair on Ds and is therefore against the public policy.

Fully compensating every tort victim would result in high costs to society. There are strong economic policy considerations operating. A requirement of fault helps reduce the financial burden on society.

Requiring a defendant to be at fault in order to be liable promotes careful behaviour and therefore tort acts as a deterrent.

Making the person who is to blame liable for the damage caused punishes the wrongdoer. The requirement of fault is a way of making people pay for what they have done wrong. It makes such people individually responsible for their actions and accountable to both the victim and society at large.

The creation of more strict liability torts will merely reduce the claimant’s burden of proof, the facts of the tort must still be proven in court and some can be hard to establish, such as causation.

Arguments against a requirement of fault.
Proving fault takes longer so the length and cost of claims is increased. This means money available to claimant is reduced.

Causes become more unpredictable as fault is determined on a case by case basis. Not compensating C is unfair.

Trot if focused on claimant. Requirement for fault means that unjust and illogical distinctions are drawn. Two people with similar injuries can receive different amounts of compensation. Sometimes liability can be out of all proportion to negligence and that’s not fair on D either.

Fault is judged by an objective standard, Nettleship v Weston, Boltom Test. It takes off D’s knowledge or inexperience and this can be harsh.

Aim of tort is to compensate victims who have been injured by the conduct of others, Michael Jones. It is the job of criminal law to punish people, not tort.

When assessing the arguments, the question arises whether fault should be an important requirement of liability in tort. The arguments in favour of fault are based on a fundamental principle and policy considerations. They are defendant friendly.
However, arguments against are more claimant focused.
In practice, especially in landmark cases judges are particularly influenced by the policy.

Overall, based on Michael Jones, assessment of the purpose to tort there should be no fault compensation system like in New Zealand as advocated by Reasons. Therefore fault should be a requirement of English law because policy considerations prevent courts from being overload and do take into account the high costs to society. However, tort is focused on claimant. Liability can be out of all proportionate to negligence and that’s not fair on D especially in cases like Vicarious liability, where irrespective of D, he is found guilty.

The aim of the law of tort is to compensate victims however it is argued that the current system, which is dependent upon proof of fault is not achieving this aim. Its is said that the tortuous system is expensive to operate. The Pearson Commission found that for every £100 awarded for compensation only amounts to £85 and 88% of accident victims receive no claim. Such information has led for calls for reform of the current system.

Radical reform could be achieved by creating a no fault liability compensation scheme. A no fault compensation scheme operated in New Zealand 1970-1980. many argue similar scheme should be adopted in UK. There have been several private members’ bills introduced in Parliament proposing a no f fault compensation scheme but all failed at 2nd reading.

Having a no fault compensation system would be proportionally cheaper to administer. It would concentrate on the injury and not the cause. It would provide compensation to all victims irrespective of fault and regardless of cause.
However, it is a move away from individual responsibility and may encourage people to take risks. It would not highlight dangerous practices. It would give less money to successful victims. it would be dependent on employers contributions and income tax and may place excessive burdens on the employers and the public.

The fact that many people are in favour for reform of the current system conveys how many people disagree with the current system. However, I argue that fault should be proven and then D should be liable because that seems to be the most just. Liability without any fault is unjust.

Reply 5

zeher

Justice in simple terms means fairness. Kelson in his General Theory of Law and State suggests that it not possible to define justice because it is simply a matter of individual preferences and values.

There are two defections of justice within law. Formal justice is the following of legal rules and treating like cases alike. It is about applying the rules equally to everyone. It is a fundamental principle that no one should be above the law and those who administer the law should do so without being prejudice, fear or bias. The case of Stephen Downing illustrates miscarriage of justice where he did not receive legal aid representation.

Substantive justice considers whether the rules themselves are fair. In many cases the rules are the issues, rather than whether they have been applied equally. The basic problem of substantive justice is what does fair or just mean? R v R criminalized rape within marriage. Substantive justice was achieved.

It can be said that formal and substantive justice contrast. Formal justice is the following of legal rules to reach a decision, whereas substantive justice raises questions such as how are we to decide what is fair?

There are five theories that deal with law and justice. Each theory is different, reflecting both the legal and social environment in which they were written.

Aristotle’s Distributive Justice, 384-312. He argued that justice was ensuring all like cases were treated alike. Distributive justice attempts to share out the good and bad things amongst society. However justice as viewed by Aristotle is a narrow, formal requirement. It says nothing about the content of the law.

Natural Law Theories, 1225-1274, Aquinas augured that a law against God’s will and therefore a violation of the natural law should be disregarded as God could not create injustice. Hoever many argue natural rights are meaningless. They cannot be discovered but must be interpreted but by whom? Natural rights can be found in European Conventions on Human Rights

Benthams’ Utilitarianism, Jeremy Bentham, 1748-1832. Utilitarianism is based on the idea that society should work works the greatest happiness for the great number even if it means that some lose out. The main criticism of the utilitarian movement is the willingness to trade the unhappiness of minority for the happiness of majority.

Rawls’ Theory of Justice, Professor John Rawls, 1971. he approaches the question of justice through an imaginary situation in which society is to decide on set of principles designed to make their society just. Dworkin, a legal theorist argues that even if we accept Rawls’ scenario, how do we know individuals accept certain principles when they do not know what their position in society id or continue to live by them.

Nozick’s Market Based Justice, b1938, Robert Nozick argued hat for a truly just society the state should have the minimum rights to interfere in the affairs of individuals. Intervention in the natural distribution in an unjust interference with individual rights. Nozick’s theory is strongly linked with capitalism.
Rights on property can be found in tort of private nuisance.

My reference to chosen area of law is Mandatory Life Sentence. For murder, a life sentence is mandatory. Sentencing procedures in murder cases is set out in the Criminal Justice Act 2003. Before the enactment of CJA 2003 the Home Secretary determined the minimum sentence for any offender convicted of murder, rather than the judges. Similarly the HS had to refer the offender to the Parole Board before s/he could be considered for release. The House of Lords reviewed this in Nov 2002 in R v Secretary of State for the Home Department (ex parte Anderson & Others)

Anderson was convicted of murder and the judge recommended minimum tariff of 15 years but the HS increased this to 20 years. D brought a judicial review hearing against the HS claiming that fixing the minimum tariff was the job of judges not politicians. The HL agreed. The Secretary of State’s practice of setting the tariff for convicted murders was incompatible with Article 6 of the European Convention on Human Rights.

Once D has been convicted, judge must pass a MLS and recommend a term D should serve before being considered for release. This is known as the minimum tariff, S2689 CJA 2003 set out starting points for determining the minimum tariff e.g., offender age 21+ committing 2 murders comes under the tariff of Whole Life.

However courts could take into account aggravating factors, which may increase the starting point tariff, e.g. victim vulnerable because of age or any mitigating factors, which may decrease any offence, e.g. offender’s age.

MLS achieves justice because; murder is such an evil and shocking crime that it can only be punished by the most severe punishment permitted by law, which is whole life.

A life sentence represented the revulsion with which society regards the crime of murder and it was part of the deal when capital punish was abolished in 1960s.

MLS helps maintain the distinction between murder and manslaughter and ensures that none receives a lighter sentence for murder than for manslaughter. It would be unfair of the law.

A life sentence protects the society from murderers. It maintains a public confidence in th Criminal justice system because justice is seen to be done.

However some argue that MLS does not achieve justice because the evil type pf murder are a small numbers of murders committed each year

There are different classes of murders of vastly different degrees of culpability ranging from brutal and repeated offences to a merciful killing of a beloved one (euthanasia) a life sentence is not appropriate in all circumstances.

Murder is often the product of the species circumstances giving rise to them. These circumstances are unlikely to be occurring again and the murderer is unlikely to commit further murders.

The recommended term means different murderers serve different lengths of sentence ion practice so MLS is not a uniform term of year and rarely means life.

The MLS is currently under review by the Law Commission in their Murder Review. Four possible solutions exist. To make life discretionary for all sorts of murder, to make it discretionary or rule out 2nd degree murders, to supplement provocation and diminished responsibility with another defence, reduced culpability and to enact that mandatory life should be appealable.

Reply 6

pcok

Wow nice, thanks!

Reply 7

ljcshazzam

do you have any for 5 consumer protection plz ?

Reply 8

pcok

Do you do criminal law for unit 5? If you have any for part (c) - criticisms of offences against property - that would be great! :biggrin:

Reply 9

gaygrad

Thanks for those answers zeher. I shall read them later just to make sure I'm on the right track. :smile:

Reply 10

zeher

SORRY - i dont have consumer protection

i do unit 5 - i did have the model answers for (c) non fatal - murder - involutary manslaughter -

i didn't get any messages - so i didn't check the posts - sorry i would have helped u guyssss

see this is y u shouldve sent me a message ---