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, NGOs
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
Australias 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 Peace
Burden of proof with Prosecution
Standard of Proof: Beyond a reasonable doubt
Contract Law
Part of Private, Domestic, Civil Law
Covers creation, performance, breached and remedies of contract situations
Specifies who may enter into a contract
Mainly covered in Common Law
Underpins commerce
Statutes have introduced implied terms to protect consumers
Tort Law
Private, Domestic, Civil law
Governs non-contract, non-criminal breaches
Covers: Trespass, Damages for assault, defamation. And negligence
Negligence, Nuisance, Defamation, Trespass [M31 for details]
Property Law
Governs the ways in which personal and real property may be owned, used, transferred or sold
Real Property: Land and items attached to land (eg. Houses)
Personal Property; Things which may be legally owned. (Dead body cannot be owned, but your own organs can be)
Personal Property: Choses in Possession Tangible assets (Painting, Gold)
Personal Property: Choses in action Intangible (Shares, value on cheque)
Aboriginal and Torres Strait Islander Customary Law
Developed orally over thousands of years
Applies to members of the Indigenous Community but rarely is combined into Common Law. Some exceptions such as native Title and alternative punishments.
Different mediation practices than Common Law adversarial system
Nature Of Justice
Access
Access to justice was recurring theme in 1990s Australia
In 1993 the Access to Justice Advisory Committee was established
In 1994 I released the Access to justice: An action plan report. Some of the issues it examines are:
Legal Aid
If people cannot afford to find out about and extend their rights then there is not equality before the law
Legal Aid helps those who cannot afford legal representation
Alternative dispute resolution
Mediation Resolving disputes without Courts
Arbitration, Conciliation, Mediation. Also being incorporated into the Court System
The Ombudsman and consumer complaint schemes
Investigates maltreatment of people by government employees
No cost to the complainant
Extensive powers of investigation but only power of recommendation
Both federal and State level
Equity
Synonomous with Justice
In legal terms it refers to something that contrasts with the strict rule of law.
Equity is a body of rules applied to achieve justice where application of strict laws would not have achieved just ends
Modern superior courts are courts of justice and equity, to do what is right by reason and justice
Fairness
Underpins Justice and Equity
Not usually used legally other than Fair Trial
And Natural Justice replaced with Procedural Fairness
International law the concept of Fairness is increasing
Fairness helps countries to accept International Law
Equality
Basic notion all people are equal. Central to the Rule of Law
Legal setting means all people have the same rights, unless there is some reason for them to be different, eg. Intellectually unfit or young children
Due to traditional discrimination there is now also positive-discrimination I.E. preferential treatment of minority groups
Human Rights
Applicable to all people
1776 US Constitution set out rights: Life, Liberty, Pursuit of happiness
Universal Declaration of Human Rights 1948
The Nature and Development of Concepts of Human Rights
Syllabus Point 4.1 Rights
state sovereignty, natural law doctrine, historic constitutional documents, movement for slavery abolition, trade unionism, universal suffrage and universal education
State Sovereignty
Power of a State to have control over its territory and citizens
State is a nation or self governing country
Stops a nation from acting within another nations borders
Helps asylum seekers to gain reguge once they cross a border
Limits power of a state to intervene in another states affairs when there is human rights abuses
Natural Law Doctrine
Created by higher powers or reasoning
Original idea stemmed from Catholic Rome, belief that they were enforcing a Universal moral standard
Basis for many Human Rights
Eg. Apartheid. Positive (Posited, Man Made) Law supported it but Reason shows that it is wrong
Movement for Slavery Abolition
Slavery, Rape and Torture are most feared injustices
Slavery is where one person is completely under the control of another
In 18th Century Britain outlawed slavery
During 19th century and early 20th many treaties outlawed Slavery.
Treaty of Berlin 1855
Slavery Convention 1926
International Covenant on Civil and Political Rights abolishes Slavery. Article 8
Article 4 Universal Declaration of Human Rights
Trade Unionism
Collective organisations of workers formed to protect workers rights
Collective Bargaining
Achievements of Trade Unionism
Prevention of Child Labour
Prevention of Forced Labour
Rejection of Apartheid
Fair Treatment of Workers
Safe Working Conditions
Leading Organisation International Labour Organisation
For many years was illegal because it disadvantaged the ruling elite
Universal Suffrage
Right of all people to vote in political elections
Up until early 20th century women not allowed the vote in most common law countries
Many countries still do not have Universal Suffrage
Article 24 Universal Declaration of Human Rights
Universal Education
May be considered a basic Human Right
Without Education a person cannot comprehend the society they live in
And as such may not recognise Human rights abuses
Article 26 Universal Declaration of Human Rights: Everyone has the right to education
Historic Constitutional Documents
Document
What It Does
Magna Carta 1215
Agreement between Barrons and King. No free man may be imprisoned other than trial by jury. No tax shall be authorised unless passed by parliament. Not designed as Human Rights document but effectively gives rights
Bill Of Rights 1688
By English Crown. Limited power of Executive. Crown could no longer suspend or make laws without Parliament. Free Speech in Parliament
Act of Settlement 1701
Crown must rule subject to the law. Predecessor to separation of powers.
Universal Declaration of Human Rights 1948
First UN document on Human Rights. Basic Principles nad Fundamental freedoms of humanity
European Convention for the Protection o Human Rights and Fundamental Freedoms 1950
Created a European Commission of Human Rights. Effective 1955. To adjudicate on breaches of the convention.
International Covenant on Economic, Social, and Cultural Rights. (In force 1976)
Recognises Right to Self Determination and the abuse of discrimination.
International Covenant on Civil & Political Rights (1976)
The Convention on the Elimination of all forms of Discrimination against Women (1979)
Introduced to ensure equal rights for all women
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1987)
To stop torture in all its forms
Convention on Rights of the Child
Develops regime whereby rights of children are protected, children being most vulnerable humans.
Syllabus Point 4.2 Rights
distinguishing between moral, customary and legal rights
Moral Rights
Based on societys morals
Often based on religion or philosophy of a society
Customary Rights
Developed over long periods of time
Implicit understandings
Based on accepted way of doing things in society
May be local communities, Indigenous Communities or World Community
Legal Rights
Based on Customary and moral Rights
Legally enforceable
Statute/Common/Constitutional law
Syllabus Point 4.3 Rights
differences between domestic and international rights
Domestic Rights
Granted by domestic law
Many countries have Bill Of Rights
Enforceable
International Rights
Mainly stem from UN
Often unable to be enforced unless ratified into domestic legislation
Main Pieces of International Law
Universal Declaration of Human Rights
International Covenant on Civil and Political Rights
International Covenant on Economic, Social, and Cultural Rights
International Convention on the Rights of The Child
Idealistic in nature
Identifying the Types of International Rights
Syllabus Point 5.1 Rights
civil and political rights; economic, social and cultural rights; environmental and peace rights
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