Evaluation of Law and Society (OCR A-Level Law): Revision Notes
Evaluation of Law and Society
Understanding evaluation questions in law and society
When you encounter exam questions asking you to "discuss the extent to which..." something is true, you need to demonstrate two key skills. First, you must show your knowledge and understanding of the English legal system and legal rules (this is Assessment Objective 1). Second, you need to analyse and evaluate these legal rules, principles and concepts before reaching a reasoned conclusion (this is Assessment Objective 3).
The evaluation of law and society requires you to critically examine how effectively the law fulfils its functions in modern society, considering various theoretical perspectives and real-world examples. This means going beyond simply describing what the law does, and instead assessing how well it achieves its aims and whether it could be improved.
Two-Part Approach to Evaluation Questions:
When answering evaluation questions, you must demonstrate both your knowledge of the legal system (AO1) and your ability to critically analyse and evaluate that knowledge (AO3). Both elements are essential for achieving high marks.
Legal realism and judicial decision-making
The realist perspective on law
Legal realism represents a significant challenge to the traditional view that judges simply apply existing rules mechanically. The realist school of thought argues that legal decisions are not as objective as they might appear. According to this perspective, judges disagree and rely heavily on precedent and legal argument precisely because there is no single "right answer" in most legal disputes. Instead, what we see are different, subjective opinions shaped by individual judges' backgrounds and beliefs.
Realists contend that precedents and statutes alone cannot determine the correct legal outcome in many cases. Often, they argue, the judgment reflects a particular judge's political opinions and personal values rather than purely objective legal reasoning. This would explain why legal outcomes are sometimes difficult to predict and why parties feel the need to take disputes to court rather than settling them based on a clear application of rules.
The working backwards theory
A controversial notion within legal realism suggests that judges may begin with their preferred outcome and then work backwards to justify it. According to this view, the lengthy published judgment serves to rationalise what is essentially an arbitrary decision made in response to real human needs, rather than through the mechanical application of objective legal rules.
Lord Reid's Acknowledgment of Judicial Law-Making:
Lord Reid famously stated: "There was a time when it was thought almost indecent to suggest that judges make law – they only declare it ... But we do not believe in fairy tales anymore."
This acknowledgment from a senior judge that courts do indeed make law, rather than simply discovering it, lends weight to the realist position and fundamentally challenges the traditional view of judicial decision-making.
Implications for law and society
The realist perspective has important implications for how we evaluate law's role in society. If legal outcomes depend partly on judicial discretion and values, then the law's ability to provide certainty and predictability may be limited. However, realists also argue that this flexibility allows judges to respond to real human needs and changing social circumstances, which rigid rule-application might not accommodate.
Case Application: R (AR) v Chief Constable of Greater Manchester (2018)
This case demonstrates how judges must balance conflicting interests in society, illustrating the practical application of legal realism. Rather than mechanically applying rules, judges in this case had to weigh competing social interests and make value judgments about the appropriate outcome, supporting the realist view that judicial decision-making involves more than simple rule-application.
The purpose and effectiveness of law in society
Durkheim's framework for understanding law
Émile Durkheim, a foundational sociologist, provided important insights into law's purpose and structure in society. His theories help us understand why legal systems exist and what functions they serve beyond simply punishing wrongdoing. When evaluating law and society, you should consider Durkheim's perspective on how law creates and maintains social solidarity.
The four key roles of law
Law serves multiple functions in society, and evaluating its effectiveness requires examining how well it performs each role:
Protecting people from harm represents one of law's most fundamental purposes. Criminal law, health and safety regulations, and consumer protection legislation all aim to shield individuals from physical, emotional and financial harm. When evaluating this function, consider whether the law adequately protects all members of society equally, or whether some groups receive better protection than others.
Ensuring a common good involves law promoting collective benefits and shared values. This includes environmental protection laws, public health regulations, and rules governing the use of shared resources. The challenge here is determining what constitutes the "common good" in a diverse, pluralistic society where different groups may have competing visions of collective welfare.
Settling arguments and disputes provides an alternative to private conflict and violence. The civil justice system, alternative dispute resolution mechanisms, and formal adjudication processes all serve this purpose. Evaluation should consider whether these systems are accessible to all, or whether barriers like cost prevent equal access to justice.
Persuading people to do the right thing reflects law's educative function. Beyond simply punishing wrongdoing, law aims to shape behaviour and attitudes. Speed limits, anti-discrimination laws, and public health campaigns backed by legal requirements all serve this persuasive function. The effectiveness of this role depends on whether people internalise legal values or merely comply through fear of sanctions.
Evaluating Law's Effectiveness:
When assessing how well law performs each of these four roles, consider whether it achieves its aims equally for all members of society, or whether some groups benefit more than others from legal protections and processes.
Creating consensus and social control
Law and social consensus
One important question when evaluating law and society is whether law successfully creates consensus – shared agreement about values and norms. Utilitarianism, which judges actions by whether they produce "the greatest happiness for the greatest number," offers one framework for assessing whether law creates genuine consensus or merely imposes the will of the powerful on the powerless.
Consider whether law could be more successful in creating consensus. Does it truly reflect shared values, or does it sometimes impose controversial moral positions on reluctant populations? The answer may vary depending on which area of law you examine.
The role of social control
Social control refers to the mechanisms society uses to regulate individual behaviour and maintain order. Law represents a formal mechanism of social control, but informal controls like social norms, family expectations, and peer pressure also operate.
When evaluating law and society, you should consider whether social control through law is desirable and necessary. Arguments in favour suggest that without legal controls, society would descend into chaos and the strong would oppress the weak. Arguments against suggest that excessive legal control restricts individual freedom and creates a surveillance state.
The media plays a significant role in social control by shaping public opinion about legal issues, creating moral panic about certain behaviours or groups, and influencing demands for legal reform. Consider how media reporting affects both the creation of laws and public compliance with them.
Balancing competing interests
Different areas of law must balance competing interests, and this balance is often unequal. Some communities and sectors of society may find that law serves their interests well, while others feel marginalised or disadvantaged by the legal system. This inequality raises important questions about whose interests law actually serves.
Various theoretical perspectives offer different explanations for this imbalance:
Consensus Theory
Consensus theory suggests that law reflects shared societal values and serves everyone's interests reasonably well. From this perspective, law emerges from democratic processes and represents genuine agreement about fundamental principles.
Conflict Theory
Conflict theory argues that law serves the interests of powerful groups and helps maintain existing inequalities. From this viewpoint, apparent consensus masks underlying conflicts, and law reinforces the advantages of dominant classes or groups.
Labelling Theory
Labelling theory focuses on how legal processes create deviance by defining certain behaviours as criminal and certain people as criminals. This perspective highlights how law can stigmatise particular groups and reinforce social divisions.
Varieties of realism
Within legal realism, different schools of thought emphasise different factors:
Left realism recognises that crime causes real harm, particularly to disadvantaged communities, and argues that law should protect vulnerable groups through practical, evidence-based approaches. Left realists criticise both harsh law-and-order approaches and romantic views of criminals as social rebels.
Right realism emphasises individual responsibility for crime, the importance of deterrence, and the need for strict enforcement. Right realists often support policies like zero-tolerance policing and argue that social explanations for crime excuse individual wrongdoing.
Understanding Different Realist Perspectives:
These different realist perspectives illustrate how law is practically employed to achieve social aims, and how debates about law's proper role continue. When evaluating law and society, you should be able to explain and contrast these competing viewpoints to demonstrate critical understanding.
Exam technique for evaluation questions
Structure and approach
Evaluation questions worth 20 marks require detailed and accurate knowledge combined with excellent use of theories, cases and statutes to support your answer. You must provide a range of points demonstrating developed discussion before reaching a reasoned conclusion that directly addresses the question.
Crafting Your Conclusion:
Your conclusion should be balanced and reasoned, using the words from the exam question itself. While different candidates may legitimately reach different conclusions, yours must be supported by the evidence and arguments you have presented. The conclusion often differentiates between strong and weaker answers at this level.
Key areas to prepare
To prepare effectively for evaluation questions on law and society, make notes covering:
- Durkheim's purpose of law and structure
- The effectiveness of law in protecting people from harm, ensuring common good, settling disputes, and persuading people (with specific examples)
- Whether law successfully creates consensus and how utilitarianism helps evaluate this
- Whether social control is desirable and necessary, and the media's role
- How different areas of law reflect the balance between competing interests, and why this balance is often unequal for some communities
- How different theoretical perspectives (consensus, conflict, labelling theories) explain these issues
- How legal realism focuses on law's practical employment to achieve social aims
Key Points to Remember:
- Legal realism challenges the view that law is purely objective, arguing that judicial decisions involve subjective judgment and political opinions
- Law serves four key roles: protecting from harm, ensuring common good, settling disputes, and persuading people to act rightly
- The effectiveness of law in creating consensus and exercising social control varies across different areas and affects different groups unequally
- Various theories (consensus theory, conflict theory, labelling theory) offer competing explanations for how law operates in society
- Evaluation requires both knowledge (AO1) and critical analysis (AO3), culminating in a reasoned conclusion using the question's own words
- Lord Reid's acknowledgment that judges make law supports the realist perspective that legal decision-making involves more than mechanical rule-application