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Law & Society

Law & Justice

1. The Essential Influences on Law

The Concept of the Rule of Law [M6 H4]

The Social, Cultural, Moral, Political and Economic Influences [M11 H6]

2. Nature of Law

Development of law as a reflection of past and present society [M12 H8]

Customary law, common law and civil law systems [M14 H12]

Doctrine of natural justice [M23 H12]

The purpose of different types of law: domestic and international law; public and private law; civil and criminal law; contract law; tort law; property law; Aboriginal and Torres Strait Islander customary law. [M27 H13]

3. Nature of Justice

concepts of access, equity, fairness, equality and human rights [M33 H20]

Rights

4. The nature and development of concepts of human rights

state sovereignty, ?natural law? doctrine, historic constitutional documents, movement for slavery abolition, trade unionism, universal suffrage and universal education [M44 H27]

distinguishing between moral, customary and legal rights [M55 H32]

differences between domestic and international rights [M55 H33]

5. Identifying the types of international rights

civil and political rights; economic, social and cultural rights; environmental and peace rights [M56 H34]

collective right to self-determination [M57 H37]

the recognition of human rights under Australian law: common and statute law, evolving human rights, including the possibility of a Bill of Rights, recognition and enforcement of rights [M58 H38]

6. Contemporary struggles for human rights, the changing understanding of human rights and the effectiveness of legal measures both domestically and internationally in addressing human rights issues. [M60 H43]

M = Macmillan H = Heinemann

Instructional Verbs

Account Account for: state reasons for, report on. Give an account of: narrate a series of events or transactions

Analyse Identify components and the relationship between them; draw out and relate implications

Apply Use, utilise, employ in a particular situation

Appreciate Make a judgement about the value of

Assess Make a judgment of value, quality, outcomes, results or size

Calculate Ascertain/determine from given facts, figures or information

Clarify Make clear or plain

Classify Arrange or include in classes/categories

Compare Show how things are similar or different

Construct Make; build; put together items or arguments

Contrast Show how things are different or opposite

Deduce Draw conclusions

Define State meaning and identify essential qualities

Demonstrate Show by example

Describe Provide characteristics and features

Discuss Identify issues and provide points for and/or against

Distinguish Recognise or note/indicate as being distinct or different from; to note differences between

Evaluate Make a judgement based on criteria; determine the value of

Examine Inquire into

Explain Relate cause and effect; make the relationships between things evident; provide why and/or how

Extract Choose relevant and/or appropriate details

Extrapolate Infer from what is known

Identify Recognise and name

Interpret Draw meaning from

InvestigatePlan, inquire into and draw conclusions about

Justify Support an argument or conclusion

Outline Sketch in general terms; indicate the main features of

Predict Suggest what may happen based on available information

Propose Put forward (for example a point of view, idea, argument, suggestion) for consideration or action

Recall Present remembered ideas, facts or experiences

Recommend Provide reasons in favour

Recount Retell a series of events

Summarise Express, concisely, the relevant details

Synthesise Putting together various elements to make a whole

The Essential Influences On Law

The Concept of the Rule of Law

Principle that the Law must be known and applicable to all citizens

The law should be known with certainty of application to all people that it my affect

The law should not be applied arbitrarily

A law may be known and applicable to all people but realistically affect only a few. Rule of Law reduces arbitrariness but does not necessarily promote fairness.

Generally considered a positive component of the Legal System. Ensures that the Law is the ultimate authority, not the government.

Some safeguards need to be in place. Dennis Lloyd suggests:

Independent Judiciary

Legal system should monitor Police system

Independent Legal profession

Executive should be supervised (eg. By courts)

Social Influences

Combined Cultural, Moral and Intellectual forces that affect the law

Writings of academics and Lawyers

Drink Driving and Non-Prison punishments caused by social factors.

Cultural Influences

Culture refers to ways of living for a group of people

Cultural influences include religion and philosophy

Moral Influences

Many laws created/altered due to perceived immorality

Eg. Child Sex Tourism

Eg. Abortion

Political Influences

Actions of sections of society that have the aim of furthering their own interests

Lobby groups ? unions, NGO?s

Political Parties

Economic influences

Economic influences increasing

Interest Rates, Government debt

Support wealthy businessmen ? particularly media barons

Nature Of Law

Development of law as a reflection of past and present society

Common Law system ? From England

Federal System ? States wanted to keep some power

Australia?s unique environment contributes to our laws.

Water restrictions in times of Drought.

Documents translated into multiple languages due to Multicultural

Historical development of Law in Australia

Doctrine of reception ? English colonists carry with them English law

Terra Nullius allowed English Law to prevail

To this day almost no recognition of ATSI law

Gradually laws passed in England gave more power to NSW and later Australia

In 1900 the Australia Constitution Act (UK) was passed in British parliament

All legislative and appellate power of Britain was cut in 1986 with the passing of the Australia (Request and Consent) Act 1985 (Cth) and the Australia Act 1986 (UK)

Customary Law

Law which has its basis in long-continued practices

Most frequent in Indigenous communities

Informality of dispute resolution

Civil Law

Can be used in multiple ways. For Civil Law System:

Used predominantly in Europe

Derived from Ancient Roman and Napoleonic traditions

Inquisitorial. Judge has more power. Can call for evidence and question witnesses

Most influential implementation the Code Civil 1804 in France

No Rule of Law or Doctrine of Precedent

Writers and academics as influential as Judges

More emphasis on written submissions than oral argument

Common Law

Can be used as law made by courts, Law made by Common Law courts or as Common law System

Common law system inherited from Britain. In use in Australia, New Zealand, Canada and U.S.A.

Judges make law in cases

Doctrine of precedent, cases must be judged in same manner as like cases.

Judge passive and reactive

Doctrine of Natural Justice

Notion that logical reasoning may determine Just or fair processes in Legal Proceedings

Procedural Fairness

Person accused of a crime, or at risk of loss, should be given adequate notice of proceedings

Person making decision should declare any personal interest in proceedings

Person making decision should be unbiased and act in good faith

Proceedings should be conducted so as to be fair to all parties

Each side is entitled to hear anything the other side says to the decision maker

Each party is entitled to ask questions and contradict evidence of other party

Decision maker should not take into account irrelevant considerations

Not only should justice be done but it should be seen to be done

Domestic Law

Domestic law is the law of the legally recognized dominant culture

Designed to control behaviours and relationships between citizens

In Australia main sources of Domestic law are Federal and State parliaments

Domestic Law should not affect citizens outside the jurisdiction of the nation

International Law

Main purpose: Guidance of Nations following international Law

UN conventions and Treaties

Often un enforced due to practical restrictions

Public Law

Constitutional, Administrative and Criminal Law

Governs conduct of Government and administrative institutions

Private Law

Law of contract and Tort

Deals with interactions between private citizens (Or corporations)

Civil law

Disputes between individuals (Or groups)

Civil wrongs ? Negligence and Breach of Contract

Burden of proof with plaintiff

Standard of Proof: Balance of probabilities

Criminal Law

Prosecutions by the State of Individuals

For ?Breaches of the

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