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Legal Notes Essay

Basic Legal Notions. Definitions:

  • Anarchy- a state of society WITHOUT government or law (LAWLESSNESS)
  • Custom- a type of behaviour that has emerged OVERTIME & that is followed by a group by MUTUAL CONSENT. Traditions.
  • Fairness- PROPER BEHAVIOUR (conduct) in the performance of an act or duty.
  • Rules- controlling COMMANDS which have the authority of superior power. Guidelines.
  • Equality- everybody being treated the SAME.
  • Justice- a concept about what is RIGHT & WRONG and what is FAIR & UNFAIR.
  • Values- principles or ATTITUDES which we see as important. Beliefs.
  • Ethics- a set of MORAL BELIEFS governing behaviour.
  • Tort- a CIVIL WRONG where one person unreasonably interferes with the rights of another.
  • Duty- something a person is REQUIRED to do or stop doing.
  • Right- something to which a person is ENTITLED.
  • Public law- law affecting the ENTIRE community about disputes between the state & private individuals; & law about law-making powers of governments.
  • Civil law- laws are regulating the behaviour of individuals- a form of private law.
  • Common law- CASE LAW developed in common court case law or JUDGE-MADE law.
  • Culture- knowledge & ways of THINKING & BEHAVING that give a group its distinctive way of life.
  • Domestic law- the law of a country- applies within a nation/states’ borders.
  • High court- the ultimate court of appeal.
  • Burden of proof- the responsibility of the party who must prove a case in court. In a civil case, this party is the PLAINTIFF. In a criminal case, it’s the PROSECUTION.
  • Alternative dispute resolution- methods of resolving disputes which do not rely on the court system.
  • Appellate jurisdiction- a court’s power to hear matters which have been heard before at a court lower in the judicial hierarchy but appealed to the court with the appellate jurisdiction.
  • Constitutional convention- a meeting of people elected from across Australia to discuss matters of importance, such as the proposed constitutional changes necessary to become a republic in 1998.
  • Convention- general agreement between nations; a meeting.
  • Delegated legislation- the subordinate law made by non-parliamentary bodies such as local councils and statutory authorities such as Sydney Water.
  • Doctrine of precedent- a group of rules that attempt to ensure consistency between judicial decisions by limiting the ability of a judge to be creative when a decision by limiting the ability of a judge to be creative when a decision about a similar case has previously been made.
  • The doctrine of reception- British legal theory suggested that the application of British law by colonists would be different depending on the status of the area to be colonised.
  • Dreamtime- in aboriginal mythology, the time in which the earth received its present form and in which the patterns and cycles of life and nature were initiated.
  • Equity- a body if laws that supplement the common law, and which serves to reduce the harshness of some common law decisions.
  • What is the Legal System?
    The legal system is made up of 3 elements:
    1. legal rules (we call laws)
    2. institutions
    3. processes
  • Rules- also referred to as laws, these are made by the lawmakers, including Parliaments & those whose power to make laws has been delegated.
  • Legal institutions- include the facilities associated with the resolution of disputes in the interest of social order. Made up of courts, judges & lawyers, and adversarial & inquisitorial systems.
  • Process of law enforcement- involves how the laws that govern society are actually applied. Examine the law enforcement agencies, including the police & prosecutors.
  • Law is a SET OF RULES that is seen as BINDING a COMMUNITY as a WHOLE. It is a set of rules that can be enforced and it is OFFICIALLY RECOGNISED. It is enforced by judicial decisions.

Characters that distinguish law from a rule!

  • Laws are binding on the ENTIRE community, e.g. school rules do not apply to every person in their community.
  • Laws can be enforced by sanctions (punishments) through the court system, police force, & government bodies.
  • Laws are officially recognised by the courts, police &government unlike church and school rules.
  • Laws are DISCOVERABLE (written down so it is easy to find in case & statue books).
  • Laws are generally accepted by society- they relate to the public interest e.g. murder and theft.
  • Laws reflect rights and duties.

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Non-Legal rules:

  • Non-legal rules are rules that have NOT come from the government and are NOT enforced by the decisions of the courts.
  • They might come from church, school & family.
  • Characteristics of non-legal rules:
    1. apply to CERTAIN groups in the community.
    2. MADE BY individuals & groups e.g. club members deciding on dress codes.
    3. ENFORCED by individuals & groups who made them.
    4. interpreted by a variety of people (laws are interpreted by judges or magistrate in a court or by a member of a tribunal).
  • The relationship between laws, rules & customs is law grew out of customary behaviour therefore law often embodies the customs of a society. The same applies to rules.
  • The characteristics that make a good law effective are they have to be discoverable, they must apply to everyone and they must be consistent with people’s morals 7 ethics.
  • External factors that cause people to be law-abiding community & fear of punishment & to blend in with society.
  • Intrinsic factors that cause people to be law-abiding are many of the rules and the values that people obey the law because it is based on long-standing rules & customs which they have been conditioned to follow.
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‘Dreamtime’ or ‘Dreaming’:

  •  Dreamtime is most often used to refer to ‘time before time’.
  • Another expression is the time of the creation of all things.
  • However many Indigenous Australians refer to the creation time as ‘the dreaming’.
  • Ancestor spirits came to earth in human & other forms and the land, the plants & animals were given their form.
  • These spirits also established relationships between groups & individuals.
  •  Once the spirits finished they changed again to animals or stars or hills or other objects.
  • The stories have been handed down through the ages & are an important part of an Indigenous person’s dreaming.

Aboriginal and T.S.I. law before 1788:
• They were based on the tradition, ritual & acceptable modes of conduct.
• Features of the Aboriginal & T.S.I. customary law include:
1. laws were a part of life
2. laws were tribal
3. ownership of land
4. oral tradition
5. secrecy
6. the dreaming
7. kinship
8. maintenance of order
9. mediation and conciliation
10. enforcement & sanctions

  • LAWS WERE TRIBAL: variations of laws, language differed from tribe to tribe. Various factors in common.
  • OWNERSHIP OF LAND: aboriginal people did not own the land the land owned them.
  •  ORAL TRADITION: laws were passed down through word of mouth. Different tribes knew different laws.
  •  SECRECY: some laws were secret & was only known to a small group of selected women and men.
  •  THE DREAMING: the law was based on the dreaming & spirits of the land, animals, plants & sky.
  •  KINSHIP: blood ties, governed much behaviour such as marriage & punishment.
  •  MAINTENANCE OF ORDER: if disputes occurred they were solved by all the tribal members or by relatives of the parties.
  •  MEDIATION & CONCILIATION: elders & influential members of the tribe were involved. Conciliation involved persuasion and negotiation. Mediation usually involved the Elders of the tribe.
  • ENFORCEMENT & SANCTIONS: punishment usually enforced by relos of the wronged party or by ceremonial leaders. Punishments ranged from social ridicule, ostracism, spearing or even death by sorcery.

Differences between the current legal system & Aboriginal and T.S.I. customary law:
• Abo. &Torres law- different people knew different laws, many laws are secret, and laws are passed orally. Aus- everyone can know all laws and they are written down.
• Abo. &Torres law- law is made by tradition/custom etc. Aus- laws are made by parliament, courts, & delegated legislators to make them.
• Abo. &Torres law- were judged by relatives, ceremonial leaders & by the whole tribe. Aus- judged by courts, tribunals, written law, and evidence revealed in an adversary way.
• Abo. &Torres law- law was enforced by different people, often by a relative of the injured party. Aus- law is enforced by police, courts, prison system, and Parole service.
• Abo. &Torres law- attitude towards the land was that there was no concept of individual land ownership, tribe is obliged to care for the land and the water. Aus- does believe in land ownership buying and selling.

Relationship between laws, rules & customs:
• Law grew out of customary behaviour therefore law embodies the customs of a society. In a multicultural society such as Australia, laws can come into conflict with the customs 2 particular cultural groups. Different cultures have different customs & it is often impossible for the law to accommodate these different customs. E.g. arranged marriages.

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Law, values & ethics:
• VALUES- are principles or attitudes that we hold as important.
• ETHICS- a set of moral beliefs governing behaviour.
• LAW- inmates from a govt. in the form of legislation or customs & is enforced by judicial decision.
• Values and ethics are closely interrelated. They are both concerned with what is good or right or fair.
• There are many different types of values and ethics that the legal system recognises. Some areas where the law reflects the values and the ethics of society are:

1. politics
2. sexuality
3. economics
4. medicine

Types of law:

  • There are numerous laws relating to every aspect of a person’s life. They can be characterised in different ways.
  • One way of distinguishing law is between common law and statute law. This divides laws by the way they are made.
  •  Another way of distinguishing law is by what they are about. There are two branches of law, public and private law.
  • Public law is also called criminal law.
  • Public law is a law that affects everyone. Public law deals with disputes between the state and the citizens and with the law-making powers of government.
  • The four main areas of public law are:
    1. administrative law
    2. constitutional law
    3. criminal law
    4. industrial law

• ADMINISTRATIVE LAW- deal with how government departments work and their rights and duties towards private citizens. E.g. a dispute on whether a person should be given a building license or not.
• CONSTITUTIONAL LAW- these laws deal with the powers that the different levels of government have to make laws. E.g. a dispute on whether a state government can impose a certain kind of tax.
• CRIMINAL LAW- these laws deal with behaviour that is seen as damaging towards the whole community. E.g. is law regarding the murder.
• INDUSTRIAL LAW- these laws deal with the relationship between employers and employees. E.g. is a dispute about the wages a person should be paid for a particular job.
• Private law is also called civil law.
• Private law is the law that deals with disputes between private citizens.
• The three main areas of private law are:
1. Contract law
2. Torts
3. Family law

• CONTRACT LAW- these laws deal with agreements made between people. E.g. buying and selling a house or an agreement to do something for another person for a sum of money.
• TORTS- these laws deal with the behaviour of people that injure other people or their property. E.g. is when a person accidentally smashes the window of another person’s house with a cricket ball, the owner can sue the other person to get money for him/her to pay for the damaged window.
• FAMILY LAW- these laws deal with disputes between a husband and wife, between divorced couples and between parents and children. E.g. dispute about who the children live with when a husband and wife separate.

Delegated legislation (subordinate legislation):
• Delegated legislation is law made by subordinate authorities who are given this power by parliaments- made by non-parliamentary bodies using a Principal Act of parliament-enabling Acts.
• E.g. local council, Sydney Water, Executive Council, Government department of education training, commonwealth department of defence: statutory authorities {reserve bank, Australian broadcasting Authority}.
• Delegated legislation is created by:
1. Authorising a body to make rules or regulations under an Act of Parliament
2. Drafting those rules or regulations
3. Having the instrument signed by the Governor
4. Publishing the instrument in the ‘Government Gazette’
5. Or publishing a notice that indicates that the instrument is available for review.
• Parliament wish to delegate because some areas of law are detailed & require frequent change.
• For parliament to alter an act every time a new fee needs to be paid or a new official form is required, would take a great deal of time and use many parliamentary resources. Instead parliamentary initially identify provisions that may be needed to be amended frequently, & allows another process to make and alter those provisions.

Why do people obey or disobey the law?
• People obey the law for many reasons, including:
1. A person’s beliefs, values or customs means they would follow the legal behaviour anyway.
2. Many laws simply regulate behaviour which we generally agree should be regulated, for e.g. traffic offences.
3. We are educated to think that certain behaviour should not be allowed, for e.g. consuming alcohol in the streets.
4. Because of fear of punishment
5. Because of fear of public shame or condemnation.
6. Because of the general desire for protection, which means that people want a legal system to protect them and will therefore comply with restrictions.

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• People disobey the law for the following reasons:
1. The temptation to break the law is sometimes too strong.
2. Some people find it thrilling or exciting to break the law.
3. They do not see their illegal actions causing any real harm to anyone, for e.g. drug use.
4. They believe that the law is wrong. Disobeying the law, for this reason, is called civil disobedience.

• Civil disobedience arises from ethics.
• People who deliberately break the law because they believe the law is wrong are making an ethical decision. They are choosing the path they believe is right, despite the fact that it is illegal.

The doctrine of precedent:
• The concept of “The Doctrine of Precedent” is the process by which courts use decisions made in earlier cases to help decide what should be the outcome of the case presently under consideration.
• Common law is made through the doctrine of precedent.
• A precedent is a binding decision made in a previous court case with similar facts.
• The doctrine of precedent developed in England and was transported to Australia in 1788 with the First Fleet.
• When a judge gives his or her decision in a case, it usually consists of two parts. They are the:
1. Ratio decidendi- this means the principle or reason for deciding the case in a particular way. It forms the binding part of precedent.
2. Obiter dicta- this means other remarks. It is not binding on other courts.
• Precedent may be avoided by:
1. Distinguishing (don’t have to use doctrine of precedent if facts aren’t the same)
2. Reversing (higher court can refer a decision made by lower courts)
3. Overruling (similar to reversing but involves two separate cases)
4. Disapproving (this takes place when a decision from another court system is being considered).

Inquisitorial and Adversarial:
• An inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case.
• The inquisitorial system applies to questions of the procedure as opposed to questions of substantial law and is most readily used in many, but not all civil legal systems.
• The adversarial system of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates representing their party’s positions and not on some neutral party, usually, the judge, trying to ascertain the truth of the case.
• One of the most significant differences between the adversary system and the inquisitorial system is in the rules of evidence. The rules of evidence are considerably stricter. Rules on HEARSAY are much stricter in most adversarial systems than in inquisitorial systems.
• Another difference is the rule of evidence. The rules of evidence are considerably stricter. Rules on hearsay are much stricter in most adversarial systems than in inquisitorial systems.

Sources of international law:
• There are many different sources of international law.
• The main sources of international are treaties, conventions and declarations, customary international law, legal decisions, and legal writings.
• Treaties are the most commonly used source of international law.
• A treaty is an international agreement, concluded between states in written form and governed by international law.
• There are two forms of treaties:
1. the bilateral treaty
2. the multilateral treaty
• Bilateral treaty is a formal agreement between two states.
• A multilateral treaty is a formal agreement between three or more states.
• The ANZUS Treaty, 1951, is an example of a multilateral treaty.
• Treaties are used to make specific laws and control nations’ conduct and cooperation.

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Legal Notes Essay. (2021, Mar 09). Retrieved November 30, 2021, from https://essayscollector.com/essays/legal-notes-essay/