AQA A Level Law: The Nature of Law and the English Legal System — Practice Questions

These are original questions written for Marlbridge, in the style and at the standard of the examination. They are not reproduced past-paper questions — examination boards hold copyright in their own papers. Use these alongside the official past papers available free from your board.

Related: The Nature of Law revision notes

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Section A

1. Distinguish between legal rules and moral rules, giving three points of difference. [6]

2. State Dicey’s three elements of the rule of law. [3]

Section B

3. Explain the Hart–Devlin debate on the enforcement of morality, and give one example of the law reflecting a change in moral attitudes. [8]

4. Explain the difference between natural law and legal positivism, and give one criticism of each. [8]

5. Explain three theories of justice and apply each briefly to the sentencing of offenders. [9]

6. Evaluate the extent to which the English legal system achieves access to justice. [12]

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Answers

1. Origin — legal rules are created by a formal, identifiable process such as an Act of Parliament or a court decision; moral rules evolve gradually within a society or community with no formal starting point [1] [1]. Enforcement — legal rules are enforced by the courts with defined sanctions; moral rules are enforced only by social pressure, disapproval or conscience [1] [1]. Change — a legal rule can be changed instantly by legislation; moral rules change slowly and are often disputed within the same society [1] [1]. (Also accept: legal rules bind everyone in the jurisdiction; moral rules may bind only a group.)

2. No person may be punished except for a breach of law established in the ordinary courts [1]; no person is above the law and all are subject to the ordinary law administered by the ordinary courts [1]; rights are secured through decisions of the courts rather than a written constitution [1].

3. The debate followed the Wolfenden Report (1957), which recommended decriminalising homosexual acts between consenting adults in private [1]. Devlin argued that a shared morality is the cement of society, so the law is entitled to enforce it; conduct that the reasonable person would regard with “intolerance, indignation and disgust” may be punished even if it harms no one else [1] [1]. Hart, drawing on Mill’s harm principle, argued the law should only intervene to prevent harm to others; enforcing morality restricts individual liberty, and the “shared morality” Devlin assumed does not exist in a pluralist society [1] [1]. Example: the decriminalisation of homosexual acts by the Sexual Offences Act 1967, and the later equalisation of the age of consent and introduction of same-sex marriage in 2013, show the law following changing moral attitudes rather than leading them [1] [1] [1].

4. Natural law holds that there is a higher, universal moral law — from God, nature or reason — and that an unjust law is not properly law at all [1] [1]. Legal positivism holds that law and morality are separate: a rule is law if it has been created by the correct procedure by the recognised authority, regardless of its moral content [1] [1]. Criticism of natural law: there is no agreement on what the higher law requires, so it provides no workable test, and it may encourage disobedience to validly enacted law [1] [1]. Criticism of positivism: it would require obedience to grossly unjust laws — as the Nuremberg trials illustrated, where “I was following the law” was rejected as a defence [1] [1].

5. Any three, 3 marks each: Distributive justice (Aristotle) — concerned with the fair allocation of benefits and burdens according to merit; in sentencing, this supports proportionality — the punishment should fit the seriousness of the offence and the culpability of the offender [1] [1] [1]. Corrective (retributive) justice — wrongdoing must be put right and the offender given their just deserts; in sentencing, this justifies punishment for its own sake and the requirement of compensation to the victim [1] [1] [1]. Utilitarian justice (Bentham) — justice is what produces the greatest happiness of the greatest number; in sentencing, this justifies punishment only where it produces deterrence, protection of the public or rehabilitation, and would permit a harsher-than-deserved sentence if it deterred others [1] [1] [1]. Rawls’s theory of justice — principles chosen behind a veil of ignorance, permitting inequality only where it benefits the least advantaged; in sentencing, this supports mitigation for disadvantaged backgrounds and the equal treatment of all defendants [1] [1] [1].

6. Arguments that access is achieved: the right to a fair trial is protected by Article 6 ECHR and enforced through the Human Rights Act [1]; duty solicitors are available free at police stations regardless of means [1]; conditional fee agreements allow claimants to bring civil actions without upfront cost [1]; tribunals, the small claims track and ombudsman schemes provide cheaper, quicker and less formal routes than full litigation [1]; legal aid remains available for the most serious criminal cases and for cases involving liberty or children [1]. Arguments that it is not: LASPO 2012 removed legal aid from most civil matters — housing, welfare, employment, most family law — so many people cannot obtain advice at all [1] [1]; the means and merits tests are stringent, leaving a large group who earn too much for aid but too little to pay [1]; the rise in litigants in person lengthens hearings and disadvantages those without representation against a represented opponent [1]; court closures and fee increases have created geographical and financial barriers [1]; conditional fee agreements are only viable for cases likely to win and to yield damages, so meritorious but low-value claims go unpursued [1]. Judgement: access to justice is substantially protected in criminal cases involving liberty but has been significantly narrowed in civil and family matters since 2012 [1] [1]. Formal legal rights are of limited value without the practical means to enforce them, so the system delivers formal but not substantive equality before the law for many people [1] [1].

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Where marks are usually lost

• Treating Hart and Devlin as agreeing about the harm principle.
• Explaining theories of justice without applying them.
• Listing legal aid changes without evaluating their effect.
• Confusing the rule of law with parliamentary supremacy.