Legal Studies

What is the meaning of law?

Formal rules made and enforced by government institutions, binding on the whole comunity

What are the two meanings of Common Law?

1) the broader inherited British legal system

2) judge-made law as distinct from statute law

What does law provide?

Order, predictability, and resolves conflict where informal rules/customs are insufficient

What are rules?

Rules are principles/regulations/maxims governing individual behaviour within a particular group

Who do rules aplpy to?

A particular group; laws apply to the WHOLE community

What is the key difference between a ‘rule’ and a ‘law’?

Rules apply to a particular group and are enforced by that group; laws apple to the whole community and are enforced by courts.

Customs

Established patters of behaviour among people in a society/group, shaped by culture, religion and history. THey vary by culture

When does a custom become a law?

When followed overtime AND perceived to be in the broader public interest, applying to everyone

What are values

principles, standards or qualities considered worthwhile/desirable within society

What are ethics

rules/standards governing conduct of a person or profession, or a philosophy investigating right/wrong conduct

What should an effective legal system reflect?

Morality of the majority

Characteristics of Just Law

Equal - treats all people the same

Based on widely held values

Utilitarian

Allows general principles to be mitigated in individual cases

Must be known/discoverable

Must NOT be retrospective

What is the difference between ‘formal equality’ and ‘equality of outcomes’?

Formal equalities treats everyone the same regardless of circumstances; equality of outcomes recognises different starting points may require different treatment to achieve a fair result

What is institutionalised inequality?

Entrenched, long-standing disadvantage that has become widely accepted it is often hidden by the fact everyone is formally treated equally before the law

What is access to the legal system and name one group that may experience barriers to it.

The ability to obtain or make use of the legal/ political system; e.g. financially disadvantaged people, people with disability, ATSI peoples, or people from non-english speaking backgrounds.

What is Legal Aid, and what test must most applicants pass to receive it?

A government-funded service providing free/low-cost legal help; applicants usually must pass a means test (and sometimes a merit test)

In the Terry Irving case, what was the consequence of legal aid being denied for his appeal?

He represented himself, lost, and remained wrongly imprisoned for years until the High Court intervened

What are the two core rules of procedural fairness (natural justice)?

The two core rules of natural justice are: (1) the hearing rule — a person must have a genuine opportunity to know and respond to the case against them, and (2) the rule against bias — the decision-maker must be impartial, free from actual or apparent conflicts of interest

Define rule of law

The principle that all people, including government officials, are subject to and accountable under the law, with laws applied equally and consistently

Define Customs

The collective habits, or traditions, that have been developed by a society, or parts of a society, over a long period of time. Generally, they are passed through generations by word of mouth.

Define Law

The regulatory and structural basis upon which most societies are organised. Defined as rules of conduct imposed on people and enforced by police and judges compelling a person to behave in a certain manner.

Define a Value

Individual's and Society's judgement about the importance of different aspects. We expect the law to protect what is valued and what we expect the law to punish those who do not respect values held by the community. If laws do not reflect the values of our society, people may choose to disobey them.

Define Just Laws

The following features are those of a just law: treats all people equally, is based on widely held values, must be known, aims to redress inequality, aims to ensure utilitarianism, minimises delays by resolving disputes as soon as possible and must not be retrospective.

Equality

A suggestion that everyone is treated the same. However, simply stating that everyone will be considered equally does not take into account the varying backgrounds and life opportunities that different people have.

Fairness

The legitimate and proper conduct in the performance of an act or duty. It does not permit bias or prejudice when making a decision or controlling an activity.

Access

For the law to be just it must be able to be accessed. People, no matter their level of English, their wage & asset base or their education, should all be able to access the law. The location of courts, legal aid and interpreter services all enhance access to the law.

Procedural fairness/natural justice

The overriding principle of procedural fairness is the concept of fair treatment before the law. The doctrine of natural justice includes: the right of a person to participate in legal proceedings in which they have an interest, the right of the accused to know the accusation made against them, the right of the defendant to have a hearing during which they are able to present evidence, and the right to have a matter heard before a court that is free from bias.

Rule of Law

The concept that no individual, corporation or institution is above the law. Our Commonwealth Constitution ensures that the exercise of arbitrary power (the unrestrained use of power — making decisions without any reference to the law) by any group is not possible.

Anarchy

The state of a society that does not have laws or state rule. It is said to exist, in theory, in situations where there is no authority to direct human behaviour.

Tyranny

The extreme opposite to anarchy. This occurs when a single person takes power from an existing democratic government of a nation-state, hence totally disregarding the powers of lawmakers and enforcers that are set down, often in constitutions.

Justice

The legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved.

Sanction

A penalty or punishment imposed for breaking a rule or law, intended to encourage compliance and deter future breaches. Sanctions can be formal

Legal system

The framework of institutions, processes, and rules through which a society creates, interprets, administers, and enforces its laws — including courts, tribunals, parliament, police, and legal professionals — designed to resolve disputes and maintain social order.

Ratio decidendi and obiter dicta

the binding legal reasoning; side comments, not binding

Binding precedent

must be followed (higher court, same hierarchy)

Persuasive precedent

may be considered but not required (different hierarchy/jurisdiction, or lower/equal courts)

Precedent

A legal principle established in an earlier court decision that guides or binds courts deciding later, similar cases

What are the aims of the doctrine of precedent?

Consistency, predictability/certainty, fairness, and efficiency

Outline two ways a judge can avoid an existing precedent.

Distinguishing (facts are materially different) and overruling (a higher court replaces the precedent)