1.08.2013

Law and Society

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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