Description
1. Critically analyse this statement in light of the broader themes of Law and Social Justice, using examples to illustrate your points : ‘The nature and scope of the international legal rules governing the use of force are clear and well-accepted by states. However, recent high-profile conflicts demonstrate that they will always be susceptible to abuse’.
2. Not forgetting :
All relevant legal issues identified
Full and focused engagement with the question
Excellent knowledge and understanding of relevant legal principles
including the most complex issues
Excellent grasp of relevant doctrinal / policy problems
Excellent ability to recognise and evaluate inconsistencies of legal
argumentation / to rank possible outcomes / to formulate some personal
perspectives (where appropriate)
Fluent use of relevant and appropriate primary materials
Evidence of considerable independent research as well as core materials
Excellent incorporation of secondary sources into analysis
Clear and compelling structure
Clear and compelling conclusions
Clear and thorough referencing throughout
Excellent standard of English appropriate to complex / specialist legal matters
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TODAYS AIMS
• Revisit the principles of law and social justice discussed in
the introduction lectures and seminars 1 and 2
• Think about the relationship between law and social justice,
the pathways and coursework
• O/er some coursework tips and guidance
AIMS OF LAW AND SOCIAL JUSTICE
• Start thinking critically about the law
• This will help you in the rest of your second and third
year modules
• Think about how law can both inhibit and promote
social justice
• Understand law in the ‘real world’
CRITICISING THE LAW
• What does criticism mean?
• Why criticise the law? Law is imperfect: it causes harms to
individuals both directly and indirectly
• Types of legal harm
DEFINING ‘CRITICISM’
Two meanings
• To censure:
Dictionary)
‘Expression of disapproval’ (Oxford English
• To analyse: ‘The assessment of the quality of someone or
something’
From the Greek ‘krei’ which means ‘to sieve, to distinguish’.
• Criticism as a ‘mind-set’.
WHY CRITICISE THE LAW?
• Crucial part of your degree!
Evidence of ability to recognise and evaluate inconsistencies
of legal argumentation / to rank possible outcomes / to
formulate some personal perspectives (where appropriate).
Level 5 Marking Criteria
WHY CRITICISE THE LAW?
• Law plays a crucial role in creating social and political
outcomes
• So moral, political and social disagreements will often be
legal disagreements
• Criticising law is about both changing law and changing
society
LEVELS OF CRITICISM
• Criticism of individual laws
• Criticism of a legal system
• Criticism of the law as a social institution
OVERVIEW: INTERNAL AND
EXTERNAL CRITICISM
Internal criticism: judges law against ‘legal values’ and the
rule of law
• Examples
• Problems
External: criticises law by invoking values outside of it such
as moral and political ones
• Examples from di/erent theoretical schools of thought
‘[L]aw is the enterprise of
subjecting human conduct to the
governance of rules’.
L. Fuller, The Morality of the
Law (1964 Yale University
Press) 46
FULLER’S PRECEPTS
• Law should be composed of rules
• Law should be public
• Law should be prospective
• Law should be clear
• Law should be coherent
• Law should not demand the impossible
• Law should be relatively stable
• Law should be enforced
LIMITATIONS OF INTERNAL
CRITICISMS
• Does this law satisfy Fuller’s
precepts?
• Why might this lead us to
question
the
internal
criticism?
EXTERNAL CRITICISM
Even clear, prospective, open and equal rules can create
oppression and domination
Must judge the law by wider political and moral values
JUSTICE
• One of the most common perspectives we use to criticise and evaluate the
law
• Law and justice are often thought of as closely related
• Most people think justice is a good thing
• BUT:
• Disagree over how to achieve it
• Disagree over what justice ‘is’ and what it ‘requires’ in any given situation
• Fundamentally contested concept
JUSTICE
• In seminar 1 we discussed di/erent theories of justice
• Emphasised their contested nature
• What was the relationship between law and justice?
• Positivism and natural law
MARXISM
• Law is a product of society
• Societies are divided between di/erent classes
• Legal principles reBect class struggle
• Law embodies the interests of the ruling class
FEMINISM
• Society has systematically marginalised women
• Contemporary law continues this:
• Leaves ‘private’ life unregulated and so does not protect
women
• Continues to promote control over women’s bodies
CRITICAL RACE THEORY
• Societies are organised around deeply racist structures
• Our core legal concepts were formed in racist contexts
• Our present law is inextricably linked with racism
• Even seemingly ‘neutral’ laws can therefore embed racism
PRINCIPLES OF SOCIAL JUSTICE
• In seminar 2, we discussed these principles:
• Fairness
• Equality
• Inclusion
• Citizenship
FAIRNESS
• Does any party gain an illegitimate advantage?
•Has systemic bias been eliminated?
•Could all the parties agree on the rules?
EQUALITY
•Are like cases treated as like?
•Is there any open discrimination?
•Who/what are treated the same?
• Has formal equality covered
inequality?
up
any
substantive
EQUALITY OF OPPORTUNITY
•
•
•
•
Are procedures and processes open to all?
Is there any discrimination in decision-making?
Has anything been done to remedy unearned
advantage/disadvantage?
Can positive discrimination help the disadvantaged?
EQUALITY OF CONDITION
•
•
•
What e/ect does the law have on distribution?
Are there any inequalities in wealth supported by the law?
Are these used to help the least advantaged?
Could/should the law be changed to beneEt the least
advantaged?
EQUALITY AS ABOLITION
•
•
•
Has formal equality covered up social inequality?
Does the law help or hinder people getting what they
need?
Could the law be used to equalise people’s living
standards?
INCLUSION
• Who does the law protect/govern/regulate?
• Who should the law protect/govern/regulate?
• Who is excluded? Why? Is it justiEed?
• What are the consequences of their exclusion?
• What are the consequences of inclusion? It does not always
bring beneEts
CITIZENSHIP
• What rights does the law grant?
• What values does the law encourage?
• Does the law encourage/require social responsibility?
• What entities should have social responsibilities?
‘APPLYING’ THE PRINCIPLES
• On this course, we have emphasised the importance of critical
engagement and debates – there is not one right answer
• But we can identify di/erent issues through di/erent
principles
• Trying to understand how to think critically
• O/er your own perspectives
• Use the di/erent principles to ask di/erent questions about
law (and your pathways)
DEPLOYING THE PRINCIPLES IN YOUR
COURSEWORK
Critically analyse this statement in light of the broader themes of Law and Social
Justice, using examples to illustrate your points.
• The broader themes should help you think about the question
• Use the issues described above to explore dimensions of the question and the
pathway
• Do not need to mechanically transpose the themes into the question
• Not every one will Et
• You are focused on engaging with the pathway and its substance/readings
• Your pathway leaders will have given you lots of guidance
COMMON ISSUES WITH COURSEWORK
• Spelling and grammar
• Read it out loud
• Legal referencing
• Over reliance on class materials
• Developing an argument
• Structure
REFERENCING
• Really important
• Shows the work and reading you have done
• Avoids poor academic and practice and plagiarism
• Consult OSCOLA reference pages
• Be consistent!
DO THE READING
• Cannot just rely on lecture materials
Class readings contain lots of important detail
• Extra reading is good, but it needs to build on existing class
materials
LEGAL DETAIL
Do not just say (for example): ‘international law let European
states take over non-European territory’ – refer to legal
arguments, readings, relevant legal instruments
ANSWERING THE QUESTION
Sounds obvious, but easy mistake to make
Don’t tell us everything you know about the topic
You do not need to tell me what international law is
Read the words of the question
Break down the elements of the question
Do what the question asks you to do
STRUCTURING YOUR ANSWER
•
Legal writing is not just a succession of facts
•
All about constructing a coherent argument
•
Two levels of structure:
•
Macro level: structure of the entire piece
•
Relationship between di/erent paragraphs, sections etc.
•
Micro level: how does each sentence relate to the other?
Are your paragraphs coherent?
MACRO LEVEL
•
•
•
•
•
•
•
•
•
Does your essay as a whole reBect an argument that is answering the question?
Let your structure be guided by the question
Make sure that you have structured your question in such a way as to deliver a
coherent answer
Make sure di/erent parts of the essay are fulElling di/erent functions
You may want to use subheadings
You should have an introduction
Lay out what you are going to do and how you are going to answer the
question
You should have a conclusion
Sum up your argument and demonstrate how you answered the question
MACRO LEVEL CONTINUED
Your sections in between should be geared towards answering the
question
Each section should contain similar information and similar arguments
Sections should Bow between each other
They should be thematically coherent
Use later sections to build on earlier sections
Make sure all the sections are related to each other
Argument should be consistent from introduction, to main sections, to
the conclusion
MICRO LEVEL
The same principles of the macro-level apply at a smaller
scale
Paragraphs should be thematically coherent do not jump
between di/erent ideas
Paragraphs should develop ideas
Sentences should follow each other logically
Do not introduce new ideas, arguments etc. in quick succession
ENGAGING WITH DIFFERENT SOURCES
All grade classiEcations require:
Engagement with primary materials (e.g. cases, legislation, treaties
etc.)
Incorporation of secondary materials (e.g. books, academic articles
etc.)
A 2:I or above requires ‘Evidence of some research beyond
core materials’
So you cannot just refer to the lecture materials
ENGAGING WITH DIFFERENT SOURCES
CONTINUED
You need to read the core readings and further reading and
some independent research
Don’t just ‘use’ these materials for description
It should feature in your answer and be thoroughly referenced
It should help in your analysis
Secondary materials provide arguments etc.
Use these to help you with critical analysis
Engaging with readings will give you detail
Will enable you to develop depth in your answer
DEVELOPING DETAILED ARGUMENTS
Never just make assertions
Back up your points with evidence
Primary and secondary sources
Explain your arguments and develop legal detail
E.g. do not just say ‘law is unfair’
Reference where this is the case
Explain why this is the case
Explain what are the implications
CRITICAL ANALYSIS OF THE QUESTION
Critical analysis means there is no one ‘right answer’; matter
of judgement
The important point is that your argument must be supported
Potential approaches to take
The ‘balanced’ perspective
Try to be ‘even-handed’ and weigh up arguments for and against
The ‘partisan’ perspective
Start with a particular argument and run with it
Still need to engage with counterarguments
CRITICAL ANALYSIS OF MATERIALS
Critical analysis does not just relate to how you answer
the question
Also involves thinking about how you use evidence
How convincing is a particular argument/source?
How does it rank to other sources?
Why have you deployed a particular argument?
CONCLUSION
• In the main lectures we have dealt with contested political
and legal concepts
• There is no ‘correct’ position – you need to exercise your
critical judgement
• Use the concepts to think through the issues raised in your
pathway and summative assessment
PUTTING IT ALL TOGETHER
Look to the words of the question and think what it is
asking you to do
Put together a structured outline which enables you to
address the question and builds an argument
Make sure to do secondary and wider reading to work out
what you will say in each part
Law and Social Justice Lecture and Seminar Summary
Cycle 1
In this cycle, we discussed ideas of criticism and justice:
Criticising the law
• We noted the importance of thinking critically about law and subjecting law to critical
analysis.
• We thought about some obvious ways in which law might be imperfect: 1) by causing
or permitting direct harm to come to individuals; 2) by creating conditions under which
individuals might be subject to harm.
• We distinguished between the imperfection of individual legal rules, decisions or
applications of the law (which might be because they are confusing, overly
discriminatory, overly burdensome to individuals, because they breach some other law
etc.) and criticism of law as a social institution.
• We noted that the imperfection of individual legal rules is at the core of the operation
of a legal system, whereas criticising law as a social institution was something that
required going beyond the typical operations of the law.
•
•
•
•
•
•
Justice
Bearing this in mind we moved onto two different approaches that might be taken to
criticising the law: ‘internal criticism’ (which involves criticising the law against legal
or rule of law values) and ‘external criticism’ (which involves criticising the law in light
of moral and political values outside of the law).
We explored internal criticism in some depth, looking at Fuller’s argument that the
purpose of law was ‘subjecting human conduct to the governance of rules’. Essentially
Fuller argues that any functional legal system must allow individuals to adjust their
conduct to the law.
o We noted that Fuller said this requires that law has to be clear, prospective,
public and coherent. If it is not these things then it would become impossible to
follow the law and the legal system would fail.
o We explored how this could be used to criticise the law by examining a number
of cases in which the law has departed from these values.
We noted the importance of internal criticism, since it tells us whether or not a legal
system will be able to do its job properly. We also noted that internal criticisms are
what lawyers are most used to, since they form much of the day-to-day practice of the
law.
However, we also noted that internal criticism will not always be enough. Focusing on
the example of South African apartheid we noted that it might be impossible to criticise
that law from an internal perspective, since it was clear, prospective, public and
coherent.
o Instead, we noted, it was necessary to criticise it from an external perspective
which argued that since racism is politically and morally offensive
Following this, we examined external criticism, which starts from the premise that
functioning legal systems can still produce oppression.
We noted that external criticism is particularly important for Law and Social Justice,
since many of the values of social justice are ‘external’ to the law.
•
•
•
•
•
•
•
We began by striking a cautionary note, we noted that ‘justice’ is a fundamentally
contested term, and that people in political disputes will always claim justice is on their
side.
What this means is that we are not aiming to arrive at a ‘correct’ or ‘true’ definition of
justice or social justice. Instead our aim is to map out the different ways in which these
concepts have been used.
We then tried to consider how various philosophers have understood ‘justice’. We
began with Plato’s idea of justice as an ‘overarching virtue’, noting that he argued
justice cannot be separated off from all of our activities and that it was a fundamental
principle of the good life.
o However, we also noted that Plato thought some other values were equally
important, including wisdom, courage and self-control.
We noted that Plato’s argument was mirrored in the more recent philosophy of John
Rawls. Like Plato, Rawls argued that justice was of overarching importance, but
similarly insisted that it was not the only relevant value, stating that values such as
efficiency and stability were also important.
We then moved on to consider what the core of justice might be. We again examined
Plato, who argued that justice concerns what people are ‘due’ and the ‘proper’ ordering
of things.
Moving on from Plato, we considered Aristotle – his pupil – who understood justice as
concerning ‘proportion’. Being treated justly means getting the right amount, and being
treated unjustly meant getting too little. This is true of distribution – i.e. if you take too
much you are acting unjustly – and retribution – i.e. a just punishment is one in
proportion to the seriousness of the crime.
We then noted that the core of the question became what is the correct proportion is the
fundamental dispute underlying different accounts of justice.
Legal justice
• Having examined some of the different ideas of justice we went on to consider the close
relationship between law and justice.
• We started by discussing the difference between positivist and natural law approaches:
o With the former believing there was no necessary connection between law and
justice and the latter
• We discussed the strong symbolism of the law associated with justice (e.g. scales of
justice, judicial titles and the figure of justice).
• We examined how legal processes attempt to secure individual justice in diverse areas
o We looked at how law tries to secure proportionate outcomes in cases through
some form of redress or remedy in a civil context, whether compensation
through damages, rectification to a prior position, preventing some unlawful
conduct from being undertaken etc. Or, in a criminal context, justice via the
punishment of an offender.
o We noted the operations of principles of procedural natural justice (the rule
against bias and the right to a fair hearing) their almost free-standing authority
(i.e. they have never been explicitly laid down, but are customarily recognised
and accepted as being applicable) and their role in ensuring that procedures are
just.
• However, we noted that these legal principles will not necessarily guarantee justice.
o We noted that in order to receive justice it is necessary to have access to legal
expertise or the money to secure it. We then examined how the recent Legal
•
Aid, Sentencing and Punishment of Offenders Act 2012 has disproportionately
affected the poor and marginalised, preventing them from accessing justice.
o We finally noted that even if overt bias can be eliminated, the judiciary are
drawn from a narrow social stratum and so have the biases and opinions of that
stratum. This casts doubt on their ability to be really ‘neutral’.
We noted that these were wider social concerns about justice which nonetheless
impacted upon the law. Any account of justice would need to take such concerns into
account. This is where social justice comes into play.
Cycle 2
Social justice defined
• We then turned to how social justice has generally been understood, noting that the
term has generally been associated with collective movements trying to transform the
world, such as the trade union movement, civil rights movement and feminist
movement.
• We noted that if justice in general concerns what we are ‘owed’, social justice examines
how questions of what we are ‘owed’ are conditioned by social institutions.
• We turned to Rawls’ definition of social justice, noting that a theory of justice seeks to
(1) ‘assign rights and duties in the basic institutions of society’; and (2) ‘distribute the
benefits and burdens of social cooperation’
o We noted that law would play a central role here, because it creates rights,
political structures and property regimes which will be central to the distribution
of benefits and burdens.
o We noted that Rawls’ definition raises a number of questions: (1) which
institutions are basic? Which rights would be assigned? Who would they be
assigned to?; (2) who defines these questions? What is an appropriate
distribution? Which benefits and burdens will be distributed? Can we really talk
about social cooperation in a competitive social world?
• We then went on to discuss a number of differing conceptions of social justice.
Fairness
• We began by discussing the concept of fairness, noting, once again, that it was a
contested one.
• We noted that fairness and justice were closely related but that we could imagine
situations in which the two were not identical. In particular, we discussed that a
situation could be unfair but not unjust, or fair but just.
• We then turned to examine Rawls’ specific definition of fairness, noting that it involved
developing rules and principles that govern a practice which are: 1) mutually acceptable
to all, and 2) remove illegitimate advantage.
• We then moved on to Rawls’ theory of ‘Justice as Fairness’, where he stated that true
principles of justice will be those chosen under fair conditions.
o We saw that Rawls argued that fair conditions here would be a hypothetical
‘veil of ignorance’ in which no individual knew what particular role they would
play in a society.
• We noted that there are criticisms of Rawls’ position. He assumes a level of social
cooperation which many would disagree with. We argued that this social conflict made
mutual agreement on conditions of justice highly unlikely.
Formal equality
•
•
•
•
We then moved on to discuss the concept of equality, looking at a number of different
understandings of it.
We first focused on formal equality, as exemplified in the language of the French and
American revolutions. We noted that the core claim of formal equality was that ‘like be
treated as like’. This meant that no one would have any special privileges by virtue of
their social role and all should be equal before the law.
However, looking at the historical examples, we noted that the question of ‘who counts
as equal’ was always contested and political. In particular, we saw that historically nonwhite peoples and women were frequently seen as ‘different’ and therefore not
understood as formally equal to white men.
We also noted that formal equality would sometimes operate to conceal social and
economic inequalities, so an understanding of equality might have to go beyond
equality before the law.
Equality of opportunity
• Following this, we examined equality of opportunity, which essentially means that all
individuals should have an equal chance to access the benefits of society. We noted that
there were two versions of this argument:
o A more conservative variant which stresses the need to eliminate barriers to the
acquisition of the benefits of society. This was closely linked to laws which
forbid direct discrimination.
o A more wide-ranging variant which argues that individuals with inherited or
natural disadvantages should be given greater chances to access the benefits of
the community. This variant was closely associated with positive
discrimination.
• We noted that some have criticised equality of opportunity for going too far because it
ends up discriminating against those who have inherited benefits.
• Conversely we noted that some say equality of opportunity does not go far enough,
since it leaves basic inequalities in place and simply attempts to mitigate their negative
consequences.
Equality of condition
• We then considered ‘equality of condition’, which advocates transferring wealth and
benefits to the least well off in order to combat inequality.
o We examined Rawls’ ‘difference principle’, which he said would be chosen
from behind the ‘veil of ignorance’. This principle says that all inequalities can
only be justified if they benefit the least-advantaged group.
▪ We noted that some have criticised this as not being specific enough, it
could justify (for instance) a welfare state or a completely free-market
state in which the wealth of the rich enabled them to hire more people.
o We then examined Dworkin’s hypothetical auction and insurance market, which
justified a form of ‘social insurance’ to protect against disappointment in the
auction. In real life this could only be realised through taxation and the welfare
state.
• We noted that law could generate equality of condition through progressive taxation,
redistribution through the welfare state, minimum/living wage, limitations on wealth
etc.
Marxist criticisms of equality
•
•
•
•
We noted that Marxists criticised equality of condition for allowing inequality to
continue at production (which is then remedied through tax or other transfers). By
contrasts Marx argued that society should distribute wealth directly to fulfil people’s
needs.
This was a form of ‘equality as abolition’ in which capitalism would have to be
abolished since it could never achieve such equality
However, we noted that historically attempts to implement this have led to
dictatorships, in which those who oppose ‘equality’ are labelled as enemies to be killed.
We also noted Hayek’s argument against these theories of equality, which held that
they would involve constant state interference which violated the free choices made by
individuals.
Citizenship and inclusion
Following our discussion of equality, we moved on to think about issues of inclusion and
citizenship:
• We began by questioning whether a theory of social justice simply concerned social
institutions, or whether it needs to focus on (1) delivering social justice to individuals;
(2) producing socially just individuals. This led on to the concept of ‘citizenship’.
• We noted the dictionary definition of citizenship as being a legally recognised
membership as a community, which brings with it rights and duties.
• We noted that the law regulates the possession of citizenship in a number of ways.
• We explored the concept of citizenship further, focusing on Hannah Arendt’s
understanding of the citizenship as the ‘right to have rights’.
o We noted that this meant that citizenship fundamentally concerns who the law
will protect, and who will be included in a legal order.
• We noted that this meant citizenship was fundamentally about questions of inclusion,
we explored Patricia Williams’ understanding of inclusion as operating as a ‘magic
wand’ which made people visible in society and capable of participation.
o We noted that this was especially important for groups who had historically
been excluded from the benefits of citizenship such as racial minorities.
• This underlined that an important principle of social justice was inclusion and that,
coupled with principles of equality, this might involve a duty to include as many people
as possible in the benefits of citizenship.
• We then considered the idea of excluding certain individuals from the benefits of
citizenship, and whether it could ever be justified.
• We examined Arendt’s analysis of World War 2, when she argued that the fate of the
Jews and refugees was owing to the fact that they were expelled from citizenship, and
so lost the ‘right to have rights’ and the protection of the law. Hence exclusion from
citizenship was catastrophic.
• We also considered the case of Trop v Dulles where the US Supreme Court ruled that
depriving someone of their citizenship was forbidden under the Constitution. In
particular, the Court argued that the loss of citizenship was more primitive than torture.
• However, we noted that the Immigration Act 2014 gives the Secretary of State the
ability to remove the citizenship of a naturalised British citizen in the event that they
were seriously prejudicial to British interests and there were ‘reasonable grounds’ to
believe they could acquire another nationality.
o We noted that this raised fundamental questions about whether it is acceptable
to exclude people from citizenship on security grounds.
•
•
We then considered the dark sides of citizenship, noting that by saying some people are
citizens, you are also saying that some people are non-citizens (and therefore not
deserving of the protection of the law). We noted (drawing on Carl Schmitt) that this
could set up non-citizens as an ‘enemy’ who could be killed with impunity. We noted
that in the current migrant crisis non-citizens were subject to a range of harsh treatments
that would not be used against citizens.
We also considered Marx’s argument that citizenship simply represented entrance into
an exploitative order of capitalism, and so doubted its ability to improve people’s lives.
Passive and active citizenship
• This led us to consider the content of citizenship. We first looked at the idea of ‘passive
citizenship’. Here citizens were understood primarily as rights-bearers, i.e. passive
citizens, understood as the recipients of rights from the state. We noted that such an
approach to citizenship could be seen as grounded in equality, and afford respect to the
notion that all citizens are entitled to equal status within a society.
o We discussed what rights should be available to citizens, whilst controversial,
we noted that civil rights (such as the right to free speech, to vote etc.) are
generally understood to be part of citizenship. However, we observed that these
would sometimes some into conflict with ‘security’ concerns.
o We noted Marshall’s argument that there has been a move toward ‘social
citizenship’, whereby the social and economic rights (such as health and
education) have become increasingly understood as part of citizenship.
o We tried to assess the difficulties of protecting rights through law (especially
rights to social and economic goods, which depend on the availability of
resources and government policy).
• We then considered whether such passive citizenship provided a full account of the role
of citizens in promoting social justice. We explored whether a good society would also
require citizens to be virtuous, and examined the four different types of civic virtue
identified by Galston: (i) general virtues (e.g. law abidingness, loyalty); (ii) social
virtues (e.g. independence, open-mindedness); (iii) economic virtues (e.g. work ethic,
ability to delay self-gratification); (iv) political virtues (e.g. respect others’ rights, hold
the powerful to account, engage in public discourse).
o We particularly discussed the importance of political virtues in a democratic
state, and considered the role law plays in fostering these virtues (e.g. creating
political institutions; setting the voting age; setting out the frequency of
elections; possibly making voting compulsory).
• We noted that Galston’s views might be criticised as ‘indoctrination’, ‘brainwashing’
or ‘ideology’. We asked who would be in a position to decide what counted as ‘virtue’
in a particular society. In particular, we noted that a Marxist might criticise Galston for
covering up the exploitation of capitalism.
•
We concluded with a reminder that the principles we have discussed have no ‘right
answer’, and that our aim was to use the debates to ask questions of, and criticise, the
law in the more concrete pathways. We went through the various principles and saw
what types of questions they might lead us to ask when examining the law.
Student ID: 012345678
Q: Discuss the merits of the position of the current government on
the topic of permitting television cameras into court in the context of
the current law on this issue
———————————————————————————————————————————-
Under English common law the principle of public justice has for many years had a direct
legal effect on our access to the courts. The famous dicta by Hewart LJ can be recited by
lawyers and lay people alike:
‘…it is not merely of some importance but is of fundamental importance that justice should
not only be done, but should manifestly and undoubtedly be seen to be done.’1
In more recent times the debate has been complicated by the UK’s obligations under the
Human Rights Act 1998. Under Article 6 of the European Convention on Human Rights
everyone is entitled to a ‘fair and public hearing’. However, neither the old common law
rule nor the new obligations under the Human Rights Act have ever been read as providing
unbridled access to the courts in all circumstances and by all types of media.
The application of the general principle of open justice is distinct from the specific issue of
access to the courts by the television press. Whilst the basic principle of open justice may be
abrogated in a number of circumstances which result in the public and the press being
barred from reporting court proceedings,2 at the same time even where a trial is considered
as appropriate for public consumption there are specific rules excluding the television
media. This is the point on which we will now focus.
In England and Wales the Criminal Justice Act 19253 places a blanket ban on taking
photographs of people during proceedings in criminal or civil courts. There is no equivalent
statutory ban in Scotland, and in England there is a statutory exception relating to
proceedings in the Supreme Court.4 The legislation was drafted to cover photographs and
1
Sussex Justices Ex P McCarthy [1924] 1 KB 256
For example the Youth and Criminal Evidence Act 1999 (Part II, Ch. 1) – special measures directions
3
Criminal Justice Act 1925, s 41
4
Ibid s 41 (2)(a)
2
1
also sketches, where sketches are made with a view to publication. The requirement that
there be a ‘view to publication’ does not apply to photographs. Whilst the ban may appear
to be restricted to still images it is clear from R v Loverage, Lee and Loveridge5 that the
provision applies equally to video a
