How the Law Creates and Deals With Consensus (OCR A-Level Law): Revision Notes
How the law creates and deals with consensus
Introduction
The law serves a crucial function in our society: it creates balance when our individual rights or interests come into conflict with each other or with the interests of the state. Understanding how the law manages these competing interests is fundamental to grasping how our legal system maintains social order while protecting individual freedoms.
What are rights and interests?
Definition and scope
Legal theorists Rudolf von Jhering and Roscoe Pound defined rights and interests as principles that individuals and/or states identify as being of fundamental importance. These are the core values and needs that the law seeks to protect and balance.
Understanding the concept of rights and interests is the foundation for comprehending how law functions in society. These aren't just abstract ideas – they represent the real things that matter to people and societies in everyday life.
Individual interests (private interests)
When we talk about individual interests, we're referring to the things that matter most to people in their daily lives. These private interests include:
- Survival – the basic right to live and access necessities
- Safety – protection from harm and danger
- Freedom – liberty to make choices and live without undue restriction
- Justice – fair treatment and access to legal remedies
- Privacy – control over personal information and space
- Health care – access to medical treatment and services
- Education – opportunity to learn and develop skills
Many of these individual interests have become enshrined in human rights law, which governs the fundamental rights and freedoms that exist in our legal system simply because we are human beings. This body of law recognises that certain protections should be available to everyone, regardless of their circumstances.
Human rights law is unique because it doesn't depend on your status, wealth, or position in society – these rights exist simply because you are human. This universal nature makes human rights law a powerful tool for protecting individual interests against both other individuals and the state.
State interests (public interests)
The state's interests are more straightforward and focused on maintaining the collective welfare of society. These public interests primarily concern:
- Physical security – protecting citizens from threats, crime, and terrorism
- Financial security – maintaining economic stability and protecting public resources
Sociologist Emile Durkheim conceptualised the state as representing our "collective conscience" – the shared values and beliefs of society. This means that when the state acts to protect its interests, it is theoretically acting on behalf of all citizens, and there should be consensus about the importance of these interests.
Durkheim's concept of "collective conscience" suggests that the state isn't just an external authority imposing rules, but rather represents what we as a society collectively value and believe. This is why state interests should, in theory, align with what most citizens consider important.
When do interests conflict?
Types of conflict
Conflicts of interest arise in two main situations:
Individual versus individual: One person's exercise of their rights may interfere with another person's rights. For example, if a starving person steals bread from another individual to survive, their interest in survival directly conflicts with the victim's interest in their property and safety.
Individual versus state: Sometimes a person's individual interests clash with the broader interests of society as represented by the state. For instance, a suspected terrorist's interest in freedom and liberty will conflict with the state's interest in maintaining physical security for all citizens.
Worked Example: Understanding Conflict of Interests
Consider a scenario where a homeowner wants to build a large extension that would block their neighbour's sunlight and view:
- Individual vs Individual conflict: The homeowner's interest in property development conflicts with the neighbour's interest in enjoying their property
- Individual vs State conflict: If the extension violates planning regulations, the homeowner's individual interest conflicts with the state's interest in maintaining orderly urban development and community standards
This demonstrates how the same situation can involve both types of conflict simultaneously.
Legal responses to conflict
The law uses different types of legal rules to address these different kinds of conflicts:
Substantive law deals primarily with conflicts between individuals. These are laws that define rights, duties, and prohibitions. For example, the law of theft addresses conflicts over property by making it illegal to take someone else's belongings without permission. Substantive law tells us what we can and cannot do.
Procedural law typically addresses conflicts between individuals and the state. These laws set out the processes and procedures that must be followed when the state exercises its powers. For example, the Terrorism Act 2006 contains procedural rules allowing police to hold a suspected terrorist for up to 14 days without charge. This law attempts to balance the individual's interest in freedom against the state's interest in security by setting specific time limits and requirements.
Understanding the Distinction:
- Substantive law = The "what" – defines rights, duties, and prohibitions (e.g., what counts as theft, murder, contract breach)
- Procedural law = The "how" – sets out processes and procedures that must be followed when enforcing those rights (e.g., how police can arrest, how trials are conducted, what evidence is admissible)
This distinction is crucial because it shows how the law uses different mechanisms to address different types of conflicts. Getting this wrong in exams is a common mistake!
Social engineering and the law
Roscoe Pound's theory
Roscoe Pound (1870–1964) developed an influential approach to understanding law called social engineering. He emphasised the critical importance of social relationships in how law develops and functions.
Pound argued that lawmakers should act as social engineers, using law as a tool to solve problems in society. When creating or applying laws, the primary aim should be to achieve consensus – a shared agreement about values and rules. However, lawmakers must also be prepared to deal with conflict when it inevitably arises.
Pound's "social engineering" perspective is revolutionary because it views law not as a static set of rules handed down from authorities, but as a dynamic instrument for managing social relationships and resolving disputes. The law should adapt to social needs and work towards creating harmony while acknowledging that competing interests will sometimes clash.
This perspective views law not as a static set of rules, but as a dynamic instrument for managing social relationships and resolving disputes. The law should adapt to social needs and work towards creating harmony while acknowledging that competing interests will sometimes clash.
Theories of consensus and conflict
Understanding different theoretical perspectives helps us analyse how the law creates and maintains social order. Three major theories offer different explanations for crime, deviance, and the law's role in society.
Consensus theory
Consensus theory takes a functionalist view of society, arguing that crime results when social institutions lose control over individuals. This perspective assumes that society generally agrees on core values and that most people follow the law because they've been properly socialised by institutions like families, schools, and communities.
Key theorists:
- Emile Durkheim – founder of functionalist sociology
- Cambridge Study in Delinquent Development (Farington and West, 1991) – longitudinal research supporting this approach
Critical Evaluation:
Critics argue that consensus theory unfairly stereotypes "broken families" as potentially problematic, effectively blaming minority groups for society's problems rather than examining systemic issues. This approach may oversimplify the causes of crime and ignore structural inequalities.
When using this theory in exams, always acknowledge these criticisms to show balanced understanding.
Conflict theory
Conflict theory presents a fundamentally different view, seeing society as composed of two or more groups with competing and incompatible interests. Rather than assuming consensus, this approach recognises that different groups – defined by class, gender, race, or other factors – have conflicting needs and that law often reflects the interests of the powerful.
Key theorists:
- Karl Marx – argued that law serves the interests of the ruling class
- Feminist conflict theories – examine how law reflects and reinforces gender inequalities
- Black Lives Matter – contemporary movement highlighting how law enforcement disproportionately affects certain communities
Conflict theory challenges the assumption that law is neutral or serves everyone equally. Instead, it argues that law is a tool used by powerful groups to maintain their position and control less powerful groups. This perspective helps explain why certain groups are disproportionately affected by criminal justice systems.
Critical Evaluation:
Some critics dismiss conflict theory as too politicised because of its association with Marx and its use in various protest movements and causes. However, this criticism may miss the theory's valuable insights into power imbalances and systemic inequalities.
When discussing conflict theory, acknowledge both its radical nature and its explanatory power for understanding social inequalities.
Labelling theory
Labelling theory argues that crime is socially constructed through the process of labelling. According to this view, mechanisms of social control label powerless individuals as deviant and criminal based on stereotypical assumptions, which then creates a self-fulfilling prophecy – people become what they're labelled as.
This theory aligns with interactionism, which suggests that people don't become criminals because of their social background, but because authorities label them as such. The label then affects how the person sees themselves and how others treat them, potentially pushing them towards criminal behaviour.
Key theorists:
- Howard Becker – developed the concept of labelling in deviance
- Aaron Cicourel's Power and The Negotiation of Justice (1968) – examined how police and courts apply labels differently to different groups
Worked Example: The Labelling Process
Consider a young person from a disadvantaged area:
- Initial interaction: Police stop and search them repeatedly based on where they live
- Application of label: After several encounters, police record them as "known to police" or a "person of interest"
- Social reaction: Community members and authorities begin treating them with suspicion
- Self-concept change: The young person begins to see themselves as an outsider or troublemaker
- Behavioural change: They may start associating with similarly labelled individuals and engaging in deviant behaviour
- Reinforcement: This confirms the original label, creating a cycle
This demonstrates how labelling can create the very behaviour it claims to identify.
Critical Evaluation:
Critics argue that labelling theory gives offenders a "victim status" while ignoring the actual victims of crime. By focusing on how criminals are created through labelling, it may downplay personal responsibility and the harm caused to victims.
Balance is key when discussing this theory – acknowledge both the power of labelling and the importance of personal accountability.
Key cases illustrating the balance of interests
Understanding how courts have balanced competing interests in real cases helps illustrate these theoretical concepts in practice.
Miller v Jackson (1977)
Case Example: Miller v Jackson (1977)
Legal significance: This case demonstrates conflict between individual rights. A cricket club wanted to continue playing cricket on their ground, while neighbouring residents wanted to stop cricket balls from flying into their gardens and causing damage.
The court had to balance:
- The club's interest in enjoying their sporting activities
- The neighbours' interests in safety and peaceful enjoyment of their property
This illustrates how even recreational activities can create serious conflicts that require legal intervention, showing that not all conflicts involve life-or-death matters – everyday activities can also create legitimate competing interests.
Kennaway v Thompson (1981)
Case Example: Kennaway v Thompson (1981)
Legal significance: This case shows how courts can use partial injunctions and damages to strike a balance between competing interests. The court didn't completely prohibit the defendant's activities but placed reasonable restrictions on them.
This demonstrates the law's flexibility in attempting to accommodate both:
- The rights of neighbours to quiet enjoyment
- The social interest in sport and recreation
Rather than an all-or-nothing approach, the court crafted a compromise solution, showing that the law doesn't always need to choose one interest over another completely.
Evans v UK (2006)
Case Example: Evans v UK (2006)
Legal significance: This case involved individuals' conflicting rights over embryos created from both parties. When a couple separates after creating embryos through IVF, whose interests should prevail – the person who wants to use them or the person who wants them destroyed?
This case illustrates how modern medical technology creates new conflicts that the law must address, balancing competing individual interests where both parties have legitimate claims. The law must evolve to deal with scenarios that didn't exist when traditional legal principles were developed.
R v T (1990)
Case Example: R v T (1990)
Legal significance: This case demonstrates substantive law attempting to balance the conflicting interests of the defendant and the victim. The defence raised attempted to justify the defendant's actions, requiring the court to weigh individual circumstances against societal interests in preventing harm.
This shows how defences in criminal law represent the law's attempt to acknowledge that circumstances may affect culpability, balancing:
- The defendant's interests and circumstances
- The victim's interests in justice
- Society's interests in maintaining order
DPP v Majewski (1976)
Case Example: DPP v Majewski (1976)
Legal significance: This case shows how the law restricts the use of certain defences for policy reasons. The court limited the availability of the voluntary intoxication defence, prioritising society's interest in deterring drunken violence over the defendant's argument that they lacked the required mental state for the crime.
This demonstrates that the law doesn't always perfectly balance interests – sometimes policy considerations mean one interest outweighs another for the greater good of society. The court essentially said that preventing alcohol-related violence was more important than accepting intoxication as an excuse.
The realist approach to law-making
Realist theories offer different perspectives on what causes crime and what the law should do about it. These approaches directly influence criminal justice policy and law-making.
Left realism
Core beliefs: Left realism, rooted in Marxist theory, argues that inequality is the main cause of crime. Poverty, lack of opportunity, and social exclusion push people towards criminal behaviour.
Proposed solutions: Left realists advocate for more community interventions to reduce crime. This means addressing the root causes through better social services, education, employment opportunities, and community support programmes. The focus is on prevention through social reform.
Policy implications: This approach suggests that the law should work alongside social programmes to create more equal opportunities and reduce the conditions that lead to crime.
Right realism
Core beliefs: Right realism, associated with theorists like Charles Murray and his underclass theory, argues that the individual is responsible for crime. People make choices, and those who commit crimes should be held accountable for their decisions.
Proposed solutions: Right realists advocate for being tough on criminals to reduce crime. This means stricter punishments, more effective law enforcement, and policies that emphasise personal responsibility and deterrence.
Policy implications: This approach suggests that the law should focus on punishment and deterrence rather than addressing social conditions. The emphasis is on individual choice and consequences.
Contrasting approaches
Key Differences Between Left and Right Realism:
These two realist perspectives represent fundamentally different views about crime and how law should respond:
Left realism:
- Sees crime as a social problem requiring social solutions
- Focuses on addressing inequality and social conditions
- Advocates community interventions and prevention
- Influenced by Marxist theory
Right realism:
- Sees crime as an individual problem requiring punishment and deterrence
- Focuses on personal responsibility and choice
- Advocates stricter law enforcement and sentencing
- Influenced by underclass theory
Both perspectives influence contemporary criminal justice policy, with political debates often reflecting these competing viewpoints about the proper role of law in society. Understanding both helps you evaluate different policy approaches critically.
Exam guidance
Essential Tips for Exam Success:
When answering questions about how the law creates and deals with consensus:
Use theorists: Always reference key theorists like Pound, Durkheim, Marx, or Becker when discussing theories. This demonstrates depth of knowledge and understanding.
Apply to examples: Link theoretical concepts to specific areas of law and real cases. For instance, when discussing procedural law, reference the Terrorism Act 2006 and explain how it balances interests.
Evaluate: Consider whether the law successfully balances interests. Does it achieve consensus or does it favour certain groups? Use evaluation points about each theory.
Define key terms: Always clearly define terms like substantive law, procedural law, and human rights law. Bold these definitions in your answers.
Structure clearly: Organise your response logically – explain what interests are, how they conflict, and how the law responds.
Key Points to Remember:
- The law's function is to balance competing rights and interests when they conflict
- Individual interests (private) include survival, safety, freedom, justice, privacy, health care, and education
- State interests (public) focus on physical and financial security
- Substantive law deals with conflicts between individuals (e.g., theft) – the "what"
- Procedural law deals with conflicts between individuals and the state (e.g., police powers) – the "how"
- Roscoe Pound viewed lawmakers as social engineers using law as a tool to solve social problems
- Three key theories – consensus, conflict, and labelling – offer different explanations for crime and the law's role
- Left realism sees inequality as the cause of crime and advocates community interventions
- Right realism emphasises individual responsibility and advocates tough approaches to crime
- Cases like Miller v Jackson (1977) and Kennaway v Thompson (1981) demonstrate how courts balance competing interests in practice
- Always evaluate theories critically – consider both strengths and weaknesses in your answers